• Comprehensive Immigration Reform (CIR) Index

• Immigrants' Rights Update Index

A discussion of immigration reform bills introduced in 2005

Immigrants' Rights Update, Vol. 19, Issue 4, Sept. 16, 2005

• Introduction

• The McCain-Kennedy Bill

• The Cornyn-Kyl Bill

• The Jackson Lee Bill

• The Tancredo Bill

INTRODUCTION

     This special issue of Immigrants’ Rights Update focuses on congressional proposals for comprehensive immigration reform.  So far in 2005, four lengthy bills characterized by their authors as comprehensive immigration reform proposals have been introduced in Congress.  The Bush administration has not yet decided on the language for a bill to implement the president’s call for immigration reform, but it has signaled that it is seeking to develop a proposal.

    The pending bills are:

       1.   The Secure America and Orderly Immigration Act (SAOIA), introduced by Sens. John McCain (R-AZ) and Ted Kennedy (D-MA) in the Senate and by Reps. Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) in the House of Representatives.

      2.   The Comprehensive Enforcement and Immigration Reform Act of 2005, introduced by Sens. John Cornyn (R-TX) and Jon Kyl (R-AZ) in the Senate.

      3.   The Save America Comprehensive Immigration Act of 2005, introduced by Rep. Sheila Jackson Lee (D-TX) in the House.

      4.   The Rewarding Employers that Abide by the Law and Guaranteeing Uniform Enforcement to Stop Terrorism (REAL GUEST) Act of 2005, introduced by Rep. Tom Tancredo (R-CO) in the House.

     This issue includes brief summaries of the four proposals, with particular attention to the first two bills because they are more likely to move forward between now and the fall of 2006, when the current Congress adjourns.  The McCain-Kennedy bill is the only proposal to date that enjoys bipartisan support and has been introduced in both houses of Congress.  Although the Cornyn-Kyl bill does not have any Democratic supporters, its sponsor and cosponsor are two border-state Republicans who are, respectively, the chair and an influential member of the Immigration Subcommittee of the Senate Judiciary Committee. 

     Of the other two proposals, the one by Rep. Jackson Lee includes many attractive features, although the legalization provision has serious limitations.  However, the bill’s lack of support by any congressmembers from the majority party makes it unlikely to be considered in committee or to come to the floor for a vote.  The Tancredo bill is a stark contrast to the other proposals.  It is a sweeping proposal for truly draconian immigration enforcement and heightened governmental control and database tracking of all individuals in the country, whether U.S. citizen or immigrant.  It is “comprehensive” in name only and offers no realistic solution to the problems of the current immigration system.

THE McCAIN-KENNEDY BILL

     On May 12, 2005, Sens. McCain and Kennedy introduced landmark comprehensive immigration reform legislation that can best be described as an intelligent and courageous effort to address our nation’s outdated immigration laws and policies.  At the same time, Reps. Kolbe, Flake, and Gutierrez introduced identical legislation in the House.  This proposal, the Secure America and Orderly Immigration Act of 2005, subsequently has attracted a number of important Democratic and Republican cosponsors in Congress.

     NILC’s summary and analysis of SAOIA are available at www.nilc.org.  The analysis can be found here .  (The summary, in the form of a chart, is here.)  In this article we provide an introduction to that analysis and urge readers interested in its details to access it via our website.  

     SAOIA represents a ray of hope for millions of immigrants currently in the United States who live and work in the shadows, for millions of others whose family petitions are lost in backlogs and have been separated from family members, and for all other Americans who stand to benefit from a more rational immigration system. 

     Increased migration affects not only the United States; it is a worldwide phenomenon, the result of the globalized economy, ease of travel, and economic and political instability in many parts of the world.  Like all major social, political, and economic phenomena, immigration has both beneficial and harmful effects.  The challenge for policymakers is to maximize the benefits and to minimize the harms.  Our current outdated system does just the opposite.  It yields deaths and exploitation, feeds criminal smuggling rings, isolates immigrants from the rest of society, and fuels outrage and support for extreme measures by large numbers of ordinary citizens who are encouraged to blame immigrants for many of society’s woes. 

     The promise of SAOIA is that it can begin to reverse these trends.  Even if it is not enacted, it provides a concrete and realistic framework that can help us to envision a transition to a far better system.  It gives immigrant communities and pro-immigrant organizations something tangible to rally around.  And it puts anti-immigrant forces on the defensive by exposing their greatest weakness:  they do not have a tenable vision for America’s future that maintains our traditions of freedom, democracy, and equality.  Fear, hatred, and division may be strong motivators, but they are not a plan.    

     SAOIA represents a bold compromise among political opposites in the name of realism, and its sponsors and their staffs are to be commended for their willingness to take chances in the name of forward movement.  At the same time, there are features of SAOIA that if enacted would severely undermine the goals of comprehensive immigration reform.  Of particular note, SAOIA would not sufficiently protect workers affected by the new immigration reality, whether they are U.S.-born, permanent resident immigrants, or the new temporary class of immigrant workers who SAOIA’s supporters hope and expect would replace much of the current undocumented flow.

     This is a significant flaw because it would leave in place some of the incentives and circumstances that have brought us to the current situation.  For example, under SAOIA, as under the current system, bad-apple employers would have an economic incentive to recruit, hire, and exploit undocumented workers because undocumented workers would continue to have fewer remedies than others and would be less able to protect themselves or fellow workers from abusive practices.  In contrast, if it is to endure, any immigration reform must strive to prevent employers from manipulating the immigration system to obtain leverage over immigrant workers.  This can be accomplished only by eliminating -- or at least minimizing -- distinctions in the rights and remedies available to workers with different immigration statuses. 

     History teaches that temporary immigrant workers are extraordinarily vulnerable to such employer manipulation, and some argue that they are even more vulnerable than undocumented workers.  Therefore, any work-based temporary immigration system must be carefully scrutinized.  The one envisioned by SAOIA is innovative, but on balance it would likely leave the new temporary workers in a vulnerable situation. 

     A final critical feature of SAOIA that does not appear to have been sufficiently thought through is the new electronic employment verification system it would create.  Though this new system has received little attention, it would effect a significant change in the relationship between employers and workers and between the government and all Americans.  It would be massive, costly, and likely unworkable.  It raises important privacy questions.  And it would very likely lead to discrimination against immigrant workers -- or those perceived by employers to be immigrants.

     “An Analysis of the Secure America and Orderly Immigration Act of 2005,” the article referred to above, provides an analysis of the bill’s context and its likely impact on low-income immigrants and their family members.  In particular, that article summarizes and analyzes the following provisions proposed in SAOIA:

      1.   A new earned legalization program;

      2.   A new temporary worker program;

      3.   A new electronic employ­ment verification system;

      4.  Amendments to the antidiscrimination provisions of the Immigration and Naturalization Act;

      5.   An improved family reunification system;

      6.   Measures to increase border enforcement;

      7.   Restrictions on who can provide legal representation to beneficiaries of SAOIA;

      8.   Civics integration–related proposals; and

      9.   Access to health care.

      The analysis is intended to clear up some misconceptions about the content of SAOIA, to provide advocates with tools for discussion of its provisions, and to better equip them to educate policymakers on the principles that must be incorporated into comprehensive immigration reform if it is to be effective.

THE CORNYN-KYL BILL

     On July 20, 2005, Sens. Cornyn and Kyl introduced S. 1438, the Comprehensive Enforcement and Immigration Reform Act of 2005.  Unlike SAOIA, the Cornyn-Kyl bill would provide no path to permanent status for undocumented immigrants currently living and working in the U.S., and it would do little to relieve the unacceptable backlogs that plague family immigration.

     Instead, it would allow undocumented non-U.S. citizen workers to apply for a five-year temporary status that would permit them to be employed only by government-approved employers.  After the five-year period, they would be required to leave the U.S. regardless of the circumstances that might make their departure a hardship for their employers, their families, or themselves.  The Cornyn-Kyl bill also would establish a separate new temporary worker program for people outside the U.S.  Once admitted to the U.S., these guest workers would not be permitted to remain beyond the temporary period, even after years of working here legally in compliance with our laws.  Finally, in the name of enforcement, the bill would impose new immigration restrictions and establish a national ID system composed of new Social Security cards and mandatory, federally regulated state IDs and driver’s licenses.

     This substantial and important bill represents a missed opportunity, because it fails to match the understanding of the problem that Sen. Cornyn frequently demonstrates when he talks about immigration.  It is substantial due to the time and effort that obviously have been devoted to crafting its provisions, and it is important because of the influential positions that Sens. Cornyn and Kyl occupy in the Senate.  It is critical to understand their views as the debate about comprehensive immigration reform proceeds.

     But this proposal fails to meet the senators’ stated desire to stake out a middle ground in the immigration debate.  It is possible that the senators do not realize how far from the middle their proposal really is.  No comprehensive proposal can plausibly claim to occupy the middle unless it makes a realistic effort to resolve the status of undocumented immigrants, fixes our family immigration system, establishes a mechanism to regulate the future flow of immigrants, protects U.S. and foreign-born workers, and makes the changes necessary to restore compliance with our immigration laws.

     Significantly, no Democrats have thus far joined in support of this proposal that was in development for several months before it was introduced.  No major immigration legislation stands a chance of enactment in this session of Congress without bipartisan support, and any bill that fails to substantially resolve the status of our undocumented immigrant population or to relieve the family visa backlog is likely to be a nonstarter for most Democrats and a consequential number of Republicans.
 

Deferred Mandatory Departure Program: 
No Path to Permanent Legal Status for Undocumented Immigrants

     The Cornyn-Kyl bill does not include a path to permanent legal status for the approximately 11 million undocumented immigrant workers who currently reside in the U.S.  Instead, it would enable those who are not in a lawful immigration status to apply for a new status called “deferred mandatory departure” if they have been in the U.S. and employed since July 20, 2004, which is one year before the bill was introduced.  They would be required to undergo a medical examination and to not be inadmissible under most of the grounds of inadmissibility provided for in section 212(a) of the Immigration and Nationality Act, except that they would not be subject to sections 212(a)(5) (“Labor certification and qualifications of certain aliens”), 212(a)(6)(A) (“Aliens present without admission or parole”), and 212(a)(7) (“Documentation requirements”).  In addition, they could apply for a waiver of any ground of inadmissibility that did apply to them. 

    Applicants could be deported with no appeal rights.  To obtain deferred mandatory departure status, a worker would have to acknowledge under oath that he or she is unlawfully present in the U.S. and subject to removal or deportation, a technical determination that many noncitizens are not qualified to make.  Once the application is submitted, it would be up to an immigration officer to grant or deny the status.  The officer’s decision would be final and could not be appealed.  Moreover, the worker would be required to waive all rights (other than in the context of an asylum or Convention Against Torture claim) to administratively or judicially contest an immigration officer’s decision to issue an order for immediate removal or deportation instead of approving the application. 

    Rights and responsibilities while in status.  A noncitizen worker granted deferred mandatory departure would be permitted to remain in the U.S. -- and to travel in and out of the country -- for up to five years.  During this period, the noncitizen would be authorized to work, but only for employers approved by the U.S. Dept. of Homeland Security (DHS) to participate in a new temporary worker program set up by the bill.  Moreover, a worker in deferred mandatory departure status who “fails to be employed” for 30 days would thereby forfeit work authorization unless the worker either leaves and reenters the U.S. or obtains the DHS’s permission to avoid doing so.  

     Persons granted deferred mandatory departure would be treated as “nonimmigrants” for benefits purposes, which arguably could make them lose eligibility for some of the few kinds of assistance they now can obtain as undocumented noncitizens.  For example, it is possible that people granted the new status would be ineligible for emergency Medicaid.  Moreover, states would have the option to render such people ineligible for any public assistance that the states furnish.

     Treatment of spouses and children.  Under the Cornyn-Kyl bill, the spouse and children of a worker granted deferred mandatory departure status would be eligible for a variation of that status.  They would be able to live in the U.S. under the same terms and conditions as the principal worker except that they would have no right to work here.  This prohibition on work would hit hard against children and spouses who might not qualify for deferred mandatory departure status on their own because they did not work during the requisite time period, such as, for example, mothers who took time away from work to care for young children and students facing high school graduation.

     Treatment of students and those brought to the U.S.  as children.  The bill as currently written would not provide any special relief in recognition of the needs and equities of undocumented immigrants who were brought to the U.S. years ago as children.  Those who have been in school instead of working would not be granted any relief at all under the bill unless they either have an undocumented spouse who qualifies or are under 21 years of age and have an undocumented parent who qualifies.  Even those who do qualify for deferred departure status, either as a worker or as the child or spouse of a worker, would be required to depart within five years regardless of their accomplishments or how long they have lived in the U.S.  According to Sen. Cornyn’s staff, this problem may have more to do with the fact that staff members ran out of time when drafting the bill than with the willingness of Sens. Kyl and Cornyn to address the particular equities and needs of these students.

     Termination of status.  At the end of the five-year period, the deferred mandatory departure status would expire and the worker would become undocumented again.  For this reason, the National Immigration Forum has accurately described mandatory departure as a “report to deport” requirement.  During the five-year period, the noncitizen worker could apply for a permanent visa, but only if one is available based on grounds independent from his or her deferred mandatory departure status, and, unless the the worker is otherwise eligible for adjustment to lawful permanent resident status under section 245(i), only after leaving the U.S. and paying a penalty that would escalate each year by substantial increments, from $0 during the first year up to $5,000 for a worker who waits to exit until the fifth year.
 

Legal Immigration Reform:  Minimal Family Backlog Reduction

     According to the materials and statements of Sens. Kyl and Cornyn, the theory of their bill is that undocumented workers will use the five-year mandatory departure period to apply for an immigrant visa that will enable them to leave the U.S. and return after paying the required fine.  Sadly, because the bill offers no meaningful path to permanent legal status, this theory cannot withstand minimal scrutiny.

     Consider the numbers.  Under current law, legal immigration is strictly limited.  On average, 926,000 immigrant visas were granted in each year between 2000 and 2004.  There are an estimated 11 million undocumented immigrants in the U.S.  So if all other immigration to the U.S. were to halt, it would take almost 12 years for all of those targeted for the deferred mandatory departure status to qualify for permanent resident status.  But other immigration will not cease.  It is likely to continue at the same rate, and the Cornyn-Kyl bill provides for no net increase in legal immigration slots.  Nor does the bill make any other pathway to permanent legal status available to undocumented workers who have made their lives here.  As a result, only a tiny fraction of the workers would be able to qualify for a return visa either within the 5-year period or any time thereafter.

     No family backlog reduction.  Unlike the McCain-Kennedy bill, the Cornyn-Kyl proposal does not even make a serious effort to address the family immigration backlogs that often keep close family members apart for decades.  The only changes it makes to the legal immigration system are (1) to permit rollover to the next year of employment-based visas that are unused due to processing delays, and (2) to do away with the diversity (lottery) visa program.  The Cornyn-Kyl bill also contains no provisions that would permit migrants who enter the U.S. under the new temporary worker program to remain even if they establish deep roots here, and they would not be permitted to change or adjust their status to any other status.
 

New Temporary Worker Category

The temporary worker program proposed by Sens. Cornyn and Kyl would establish a new “W” nonimmigrant visa category with no numerical limitations, at least in the initial years.  This new visa would replace the existing H-2B unskilled guest worker program. 

     Eligibility.  To be eligible for W status, a noncitizen would be required to have a job offer from a U.S. employer with an approved slot, pay a $500 fee, and meet a slightly modified version of the normal requirements for admission.  Among those eligible for a W visa would be individuals who were previously granted mandatory departure and who departed within the five-year mandatory departure period, although, as discussed below, they would be penalized for remaining deeper into the five-year period before leaving.  As with the deferred mandatory departure provisions, there would be little or no administrative or court review of a decision to deny a W visa or to remove or deport a W visa–holder.

     Conditions and time limits.  Once admitted, W visa-holders would be required to maintain a residence abroad that they do not intend to abandon and to spend at least seven consecutive days each year in their country of residence.  A W temporary worker” would lose work authorization and be forced to leave the U.S. if he or she lost or left the job and failed to find other employment within 30 days, unless DHS, in the exercise of unreviewable discretion, decided to waive the departure requirement. 

     The visas would be valid for only two years and, with certain exceptions, would not thereafter be available again until the immigrant had left the U.S. and resided continuously in his or her home country for at least one year.  Family members would not be able to accompany the worker to the U.S. for the two-year period, though they would be eligible to visit for up to 30 days.  There would be a lifetime cap preventing admission under a W visa for more than a total of six years.  The six-year lifetime cap would be even shorter for those who were previously granted deferred mandatory departure and did not leave within the first two years of obtaining that status.  Starting the third year, these individuals would lose a year from the lifetime cap, so that those who failed to depart until the fifth year would be eligible only for a total of two years of W status. 

     Employer and job requirements.  A W temporary worker -- like a formerly undocumented person granted mandatory departure -- would be allowed to work only for an employer granted slots under a new “Alien Employment Management Program” administered by the DHS and charged with authorizing, tracking, and monitoring employment of W and deferred mandatory departure visa-holders.  Slots would not be available for jobs encompassed by certain existing temporary worker programs, including the H-1B (specialty occupation), H-2A (agricultural worker), L (intracompany transferees), O (outstanding skill or ability), P (performers), or R (religious worker) programs.  To become authorized for one or more slots in any other occupation, an employer would be required to conduct a labor market test; offer the job(s) to any qualified, willing U.S. worker; and make various attestations.  The attestation with respect to wages would require payment of only the minimum wage rather than the prevailing wage, and there would appear to be no requirement, attestation or otherwise, to preclude authorization of W worker slots during a labor dispute. 

     Tracking and employment eligibility verification.  As discussed above, the bill would require the DHS to develop and implement, in consultation with the Depts. of Labor and State and the Social Security Administration (SSA), an Alien Employment Management System to manage and track the employment of noncitizens granted W or deferred mandatory departure status.  The bill would require the program to be interoperable with Social Security databases, and to provide a means for immediate verification of the identity and employment authorization of noncitizens with W or deferred mandatory departure status, and also to track the employment history of each of these workers.  Employers would be required to use readers or scanners at employment locations or at a federal facility to transmit biometric and biographic information contained in the documentation of such noncitizen workers. 
 

New Enforcement Provisions

     The Cornyn-Kyl bill provides for an increase in border enforcement without new civil liberties or human rights protections, adds detention authority and detention beds, adds interior enforcement personnel, and further restricts judicial review of immigration decisions.  It would also authorize state and local law enforcement agencies to perform immigration enforcement functions, a provision opposed by many police departments because it would corrode the trust between noncitizens and local law enforcement personnel that is critical to effective law enforcement.

     The bill also would radically transform the relationship between the U.S. government and the people by establishing a new national ID that every worker would have to present to gain employment, and by imposing new requirements on all businesses. Specifically, the bill would expand the existing voluntary electronic employment eligibility verification system known as the Basic Pilot into a massive new federal mandate required to be used by all employers. 

     Border enforcement.  Among other things, the bill would:

• Expand the use of expedited removal (removal without a hearing) to all Border Patrol sectors along the southern border of the U.S.

• Authorize the appropriation of funds to implement the biometric entry and exit data system required by section 7208 of the 9/11 Commission Implementation Act of 2004 (codified at 8 U.S.C. sec. 1365b) and exempt the DHS from compliance with the Administrative Procedures Act and “any other law relating to rulemaking” or information collection in implementing the system.

• Raise the minimum bond for release from detention, for noncitizen nationals of noncontiguous countries (all countries other than Mexico and Canada) who have not been admitted or paroled into the U.S. and are either apprehended within 100 miles of the border or who present a flight risk, from the current minimum of $1500 to $5000.

      Interior enforcement.  The bill would:

• Require that, by Oct. 26, 2007, all documents issued by the DHS that may be used as evidence of an immigration status, except for interim documents, must be machine-readable, tamper-resistant, and incorporate a biometric identifier.

• Increase the penalties for crimes of alien smuggling and document fraud, in most cases doubling the period of incarceration.

• Establish criminal penalties for certain crimes if they are committed by noncitizens who are unlawfully present in the U.S., requiring additional incarceration for not less than five years for a crime of violence or a drug trafficking offense, and incarceration for not less than fifteen years for noncitizens who were previously ordered removed on the grounds of having committed a crime.

• Create a new ground of inadmissibility for noncitizens who are members of a criminal street gang.

• Revise the statutory provision for reinstatement of removal so that the procedure would apply to applicants for admission, except those who present themselves at a port of entry or who have been paroled, who were excluded, deported, removed, or voluntarily departed the U.S. under such an order, on or after Sept. 30, 1996.  The revision remedies the retroactive application of the current statute to pre-Illegal Immigration and Immigrant Responsibility Act (IIRIRA) deportations and exclusions, and also provides that noncitizens subject to reinstatement may still seek asylum, withholding, and protection under the Convention Against Torture.  However, the revision also allows the DHS to reinstate prior orders without any proceeding before an immigration judge.

      Enforcement of immigration law by state and local law enforcement personnel.  The bill would:

• “Reaffirm” that law enforcement personnel of a state or a political subdivision of a state “have the inherent authority of a sovereign entity to investigate, apprehend, detain, or transfer to Federal custody” noncitizens “for the purpose of assisting in the enforcement of the immigration laws.”

• Require that information be entered into the National Crime Information Center (NCIC) database, which is used by state and local law enforcement personnel across the country, regarding noncitizens against whom a final order of removal has been issued, or who were granted voluntary departure “that has become invalid,” or whose visas have been revoked.

• Provide that states and localities “should” provide to the DHS information about each noncitizen apprehended within their jurisdictions who is “believed to be in violation of an immigration law of the United States.”  The information should be provided within 10 days of the apprehension and should include the noncitizen’s name, address, physical description, driver’s license number, number and type of any other identification document, license plate number and vehicle description, description of the circumstances and reason for the apprehension, photo if available or readily obtainable, and a full set of ten rolled fingerprints if available or readily obtainable.

• Grant immunity from personal liability for state or local law enforcement officers engaged in immigration law enforcement within the scope of their official duties, to the same extent as the immunity given to federal law enforcement officers.

      Worksite enforcement and restriction of identity documents.  The bill would expand the Basic Pilot electronic employment eligibility verification system, currently a voluntary system, and require that it be used by all employers in the country.  Last year, the Basic Pilot system was utilized (with numerous problems) by only about 2,300 U.S. employers (0.04 percent of U.S. employers).  Under the Cornyn-Kyl bill, within a year of the bill’s enactment, all 5.6 million employers in the U.S. would be required to participate in the Basic Pilot.

     The bill also would obligate all workers to obtain a new, machine-readable and tamper-resistant Social Security card that would be required as a national ID and the only document that could be used to prove employment eligibility.  At the time of hire, all workers in the U.S. would have to present the new Social Security card, plus either a federal ID or a state ID or driver’s license that complied with federal standards.  Thus, for the first time every worker would be required to obtain one of these forms of federal or state ID in addition to the new Social Security card.

     The bill would also impose strict restrictions on the circumstances in which states may issue authenticated copies of birth certificates to requestors, and require the Social Security Administration to verify birth certificates in issuing Social Security cards.  The secretary of Health and Human Services and the commissioner of Social Security would be required to work with the states to establish a common data set and data exchange protocol for electronic birth and death registration systems, and implement a system for electronic verification of births and deaths.

THE JACKSON LEE BILL

Rep. Sheila Jackson Lee (D-TEX) introduced HR 2092, the Save America Comprehensive Immigration Act of 2005, on May 4, 2005.  The bill has a very broad reach and not only would establish a legalization program and revise the immigration system, but also would restore more fairness and due process to removal proceedings and combine immigration reform with investing in solutions for U.S. citizen communities that have suffered long-term unemployment and discrimination.
 

Legalization Program

The bill includes a legalization program that would allow undocumented noncitizens to apply for and obtain lawful permanent resident status if they have lived in the U.S. for at least five years and have good moral character and no criminal offenses.  Applicants between the ages of 18 and 65 also would be required to show that they have accepted the values and cultural life of the United States, performed at least 40 hours of community service, and, if under age 65 and not disabled or mentally impaired, that they have completed a course in reading, writing, and speaking English words in ordinary usage.  Children could legalize if they have been physically present in the U.S. and enrolled in school for a period of five years prior to applying, have good moral character, are “fully integrated into life in the United States,” have learned English or are satisfactorily pursuing a course of study to learn it, and, if over age 13, have performed at least 60 hours of community service.  The bill also would update the “registry” date from 1972 to 1986, allowing noncitizens who have continuously resided in the U.S. since this date to apply for lawful permanent resident (LPR) status.

     Unfortunately, the bill’s requirements for the legalization program would disqualify a sizeable percentage of the undocumented population.  The requirement of five years’ residence alone would exclude some 30% of the undocumented population.  The bill would also bar legalization for persons convicted of any criminal offense in the U.S., even where the crime is not among those contained within the criminal grounds of inadmissibility, such as convictions for driving under the influence of alcohol or drugs and firearms offenses. This bar also would appear to include some of the relatively minor offenses for which undocumented immigrants are particularly susceptible due to their lack of status, such as driving without a license and the various offenses for which day laborers are often arrested.  In addition, the bill’s failure to exempt legalized immigrants from criminal and civil liability for conduct related to their employment prior to legalizing would pose difficult problems for many immigrants.  Finally, the good moral character requirement would subject applicants to considerable agency discretion in the application of the requirement, that could also exclude a significant number of immigrants. 
 

No New Temporary Worker Program

The bill does not establish any new temporary worker program.  Rather, it would require employers petitioning for temporary workers under existing programs to demonstrate that they have sought to recruit U.S. citizens or lawful permanent residents for the jobs and that they have made substantial efforts to recruit such workers in minority communities.  The bill also would make it an unfair employment practice for an employer to discriminate against an employee based on the worker’s immigration status, except to the extent authorized or required by law.
 

Family Unification

The bill would further family unification by:

• Doubling the number of family-based visas available worldwide each year;

• Protecting child beneficiaries and applicants for any immigration benefit other than naturalization from “aging out” (becoming ineligible for the benefit upon turning 21 years of age);

• Eliminating the requirement of an affidavit of support for family-based immigration; and

• Allowing surviving spouses, children, and parents who have applied for adjustment to have their applications adjudicated despite the death of a petitioner or primary beneficiary relative.
   

Removal-related Provisions: Restoration of Fairness

The bill also seeks to restore a measure of fairness to the circumstances in which immigrants may be subject to removal, including provisions that would:

• Restore section 245(i) to allow noncitizens who were not inspected or admitted to use adjustment of status if they are eligible and pay a fine.

• Expand the relief of “cancellation of removal” for non-LPRs so that it is available to the same extent as “suspension of deportation” under pre-1997 immigration law.

• Eliminate mandatory detention for noncitizens in expedited removal proceedings.

• Provide relief to noncitizens who were removed for offenses that were not deportable offenses at the time they were committed.

• Revise the grounds of inadmissibility for crimes of moral turpitude and controlled substances to only apply to individuals convicted for such offenses.

• Revise the ground of removability for conviction for a crime of moral turpitude so that it applies only to a conviction where the noncitizen is incarcerated for a period exceeding one year, replacing the current language that applies to any conviction for an offense for which such a sentence “may be imposed.”

• Revise the definition of “aggravated felony” to require that any such offense be a “felony.”

• Revise the definition of a “drug trafficking” aggravated felony to exclude from the definition a conviction for simple possession of a controlled substance.

• Revise the definition of aggravated felonies based on crimes of violence, theft, bribery, and perjury to raise the period of imprisonment required for the definition to apply to a noncitizen from one year to five years.

• Revise the definition of an aggravated felony for smuggling to include only smuggling for commercial gain.

• Revise the definition of “conviction” such that it would not encompass convictions that have been expunged.
   

Miscellaneous Provisions

The bill also provides for adjustment to LPR status of noncitizens who have been granted temporary protected status and been present in the U.S. for over five years, and for Liberians.  It also expands protections for applicants for immigration status under the Violence Against Women Act (VAWA) and for noncitizens who are victims of crimes, and expands their eligibility for benefits.  It also provides that victims of battery or extreme cruelty, sexual assault, or trafficking, and individuals who have been granted T or U status, are eligible for legal representation using Legal Services Corporation funding.

     The bill would also eliminate section 287(g), the provision of immigration law that allows the DHS to enter into memoranda of understanding with state and local governments to allow their law enforcement officers to engage in immigration enforcement.

THE TANCREDO BILL

Finally, on July 18, 2005, Rep. Tancredo introduced a bill in the House, the Rewarding Employers that Abide by the Law and Guaranteeing Uniform Enforcement to Stop Terrorism (REAL GUEST) Act of 2005 (HR 3333).  In promoting the bill, Tancredo has described the proposal as a comprehensive immigration bill that does not include an amnesty.  The bill largely consists of a series of measures to increase immigration enforcement, penalize immigrants currently in the U.S., and increase governmental control and database tracking of all individuals in the country.  Among other things, the bill includes provisions that would:

• Criminalize immigration status violations, making “unlawful presence,” which is not currently a crime, a felony.

• Allow use of the Army and Air Force near the border to prevent illegal immigration.

• Require the electronic fingerprinting of all applicants for U.S. passports and the comparison of the fingerprints with the National Crime Information Center database.

• Require the Social Security Administration to verify the validity of all birth certificates submitted by applicants seeking to obtain a Social Security account number.

• Impose strict restrictions on the circumstances in which states may issue authenticated copies of birth certificates to requestors.

• Require, over a three-year phased implementation period, that all employers use the Basic Pilot employment eligibility verification system, renamed the “Employment Authorization Status Instant Check” or “EASI Check” system, to verify all current employees as well as all new hires.

• Require the SSA annually to notify each employer who has “one or more employees whose social security account number does not match the employee’s name or date of birth in the SSA’s records,” and to require the employer to notify the employee to correct the problem with the SSA within ten days or the employer is required to terminate the employee.

• Prohibit immigrants lawfully present in the U.S. from adjusting their status to lawful permanent resident status except for refugees, asylees, S-status nonimmigrants (informants), T-status nonimmigrants (victims of trafficking, though the bill would eliminate the authority of the DHS to waive most grounds of inadmissibility for them), and U-status nonimmigrants (victims of crimes).

• Eliminate “registry,” the procedure that allows noncitizens who have lived continuously in the U.S. since 1972, but who either never obtained or no longer can prove they obtained LPR status, to become LPRs.

• Prohibit states from providing in-state tuition to undocumented students based on graduation from state high schools unless the same benefit is provided to U.S. citizens regardless of residence, and prohibit the award of federal grants or financial assistance to post-secondary institutions that are determined to be in contravention of this provision.

• Require hospitals to report information regarding undocumented patients to the DHS within 72 hours of treating any undocumented immigrant for whom federal emergency Medicaid reimbursement is sought.

• Establish that state and local law enforcement officers have the authority “to apprehend, arrest, detain, or transfer to Federal custody” noncitizens “in the enforcement of the immigration laws of the United States.”  The bill also would establish a demonstration e-learning pilot project to be located at Cameron University in Lawton, Oklahoma, to train 100,000 state, local and tribal law enforcement officers from Alabama, Colorado, Florida, Oklahoma, Texas, and at least one other state in immigration law.

      The bill also would eliminate all current temporary worker programs, replacing them with a single program, after the DHS certifies to Congress that specified goals for immigration enforcement have been reached.  These goals include full implementation of the US-VISIT system for recording individuals’ entries and exits from the U.S.; completion of the hiring, training, and employment of 10,000 additional Border Patrol agents; obtaining assistance from state and local law enforcement agencies in immigration enforcement with U.S. Immigration and Customs Enforcement responding to every request for assistance received from state and local agencies; and confirmation that at least 80 percent of nonimmigrants who overstay their visas are removed within one year of the overstay.