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As the
Comprehensive
Immigration Reform Act of 2006 (S 2611) was
debated on the Senate floor and among the public at large
over the past two weeks, attention focused on one issue more
than any other: Should undocumented immigrants who live and
work in the United States be granted a path to citizenship?
To the Senate's credit, on Thursday, May 25, when it voted
62 to 36 to approve the bill, it answered this particular
question in the affirmative. But the heavily amended bill
that the Senate finally approved -- one of the most sweeping
and comprehensive immigration reform proposals ever to be
passed by either house of Congress -- is a multi-headed
monster, composed of a myriad complex and poorly integrated
provisions. While some of these measures would enact
desperately needed reforms, others would substantially
undermine the goals of those reforms or run contrary to core
American values.
Features of S 2611 as Passed by the Senate
The main
features of S 2611 include:
· path to legal status: Provide various paths to legal
status with differing requirements for an uncertain number
of the estimated 11-12 million undocumented immigrants who
live, work and pay taxes in the U.S.
Each
legalization mechanism provided for in the bill would
provide temporary status or temporary worker status for a
substantial number of years to certain non-U.S. citizens,
followed by permanent residence for those who qualify. The
mechanisms would include: (1) "earned adjustment" for those who
have lived and worked in the U.S. since April 5, 2001; (2) "deferred mandatory departure" (DMD)
for those who entered between April 5, 2001, and January 7,
2004 (who must leave the U.S. within 3 years but could
return under the new guest worker program, with the
possibility of ultimately obtaining permanent status); (3)
AgJOBS, for those who have worked in agriculture for at
least 2 years; and (4) the
DREAM Act, for individuals
brought to the U.S. at the age of 15 or younger at least 5
years before the date S 2611 is enacted.
Unfortunately, it is certain that many currently
undocumented immigrants would not be able legalize under
these provisions -- even if they meet the residence and work
requirements -- because of the complications and barriers
that are discussed below.
· backlog reduction: Greatly
reduce the immigration backlogs that currently cause family
separation and business frustration.
Among
the changes: (1) Immediate relatives (spouses, children and
parents) of U.S. citizens would no longer be counted against
the worldwide limit of available visas, and those visas
would be made available for other family categories; (2) the
number of employment-based visas would be more than doubled;
and (3) a U.S. citizen's child or spouse who has applied for
an immigrant visa would be allowed to continue with his or
her application if the citizen dies before the visa is
issued.
An
amendment added on the Senate floor would restrict future
immigration by persons from certain countries by reducing
the number of "diversity visas" to 18,333 from
the current level of 55,000 and replacing these with a like
number of new visas for persons with advanced degrees.
Diversity visas, also known as lottery visas, are made
available
to individuals from countries with historically
low levels of immigration to the U.S. In recent years, a
high proportion of these visas have gone to people from
Africa.
· more guest workers: Expand and reform the existing
H-2A guest worker program for agricultural workers (part of
AgJOBS) and create a new H-2C program granting up to 200,000
annual visas for low-skilled workers and others whose job
types are not covered by current guest worker provisions.
H-2C visas
would be valid for three years and could be renewed once for
a total of six years. Workers would be able to switch from
one approved employer to another and would be able to adjust
to lawful permanent resident status at any time via an
employment-based immigrant visa petition by the employer or,
after four years, via a self-petition that would require a
U.S. Dept. of Labor certification that there are not
sufficient U.S. workers who are able, willing, qualified,
and available to fill their job.
· employment eligibility verification:
Expand the problematic "Basic Pilot" electronic employment
eligibility verification system -- currently being used on a
voluntary basis by a few thousand employers -- to a
mandatory program that must be applied to all 50 million
annual new hires in the U.S.
The
expansion would be phased in over an 18-month period.
An amendment added
during floor debate would make the system
somewhat more workable and would provide protections against
erroneous disapprovals, privacy lapses, discrimination, and
other abuses. Despite the improvement, the new program
would not address the core flaws inherent in any such
system. It would bring us closer to implementation of a
national ID, and unless the underlying problems are
addressed it would push large numbers of employers and
workers alike into the burgeoning underground cash economy,
devoid of regulations.
· "border enforcement."
Numerous provisions of S 2611 are intended to reduce illegal
border crossings. But experience suggests that these
provisions will further militarize the border without
providing the protections needed to hold the government
accountable for civil and human rights violations and
without reducing the undocumented population. These
measures include:
→ Construction
of 370 miles of triple-barrier fencing and 500 miles of
vehicle barriers;
→ Increasing
the number of Border Patrol officers from 11,300 currently
to more than 25,000 by 2011;
→ Authorizing
use of the National Guard to patrol the border with Mexico
until 2009;
→ Making
expedited removal (removal from the U.S. of a noncitizen
without the person being afforded a chance to have an
immigration judge hear his/her case) mandatory for
individuals (except for Mexicans and Cubans) detained within
100 miles of the border and within two weeks after entry;
→ Requiring
mandatory detention of individuals (except for Mexicans and
Cubans) caught at a port of entry or land or international
land or maritime borders.
· "interior enforcement":
Increase penalties and reduce due process protections for
those charged with immigration violations, while increasing
state and local enforcement of immigration laws.
For
example, S 2611 would:
→ Overrule
Supreme Court decisions on indefinite detention
by allowing the Dept. of Homeland Security (DHS) to detain
immigrants indefinitely, even when they have not committed a
criminal offense and there is no reasonable chance that they
can be removed to their home country (e.g., because that
country will not accept them);
→ Make
detention more likely by increasing detention space;
→ Limit
courts' ability to halt (enjoin) government violation of
immigrants' constitutional and statutory rights;
→ Bar persons from adjusting status if they
admit (conviction not required) a document fraud offense
(Even a person who has U.S. citizen or lawful permanent
resident family members will be inadmissible -- if the
person admits completing an I-9 form with a false Social
Security number to get a job.);
→ Greatly expand the definition of passport,
visa, and immigration fraud crimes, including the
criminalization of omission of information (rather than
provision of false information) on immigration-related
documents;
→ Unreasonably
expand the definition of "aggravated felony," which will
make even more immigrants deportable and permanently
ineligible for legal status;
→ Broaden
the definition of "smuggling" and include in the definition
actions taken outside the U.S., and expand the "smuggling"
forfeiture provision to apply to any property (Under this
provision, a person who invited an undocumented relative
into his or her house might lose the house.);
→ Expand
state and local enforcement of immigration laws by: (1)
authorizing state and local police to enforce federal
criminal immigration laws; (2) authorizing reimbursement
for training, transportation, and other expenses;
(3) mandating that DHS reach out to states to enter into
memorandums of understanding to enforce federal immigration
law (but without requiring states to enter into such
agreements); (4) authorizing the entry of a wide range of
civil immigration records into the federal National Criminal
Information Center database; and (5) changing the definition
of the crime of "entry without inspection" (committed by
60-75 percent of undocumented immigrants) to a "continuing
offense," which would have the effect of authorizing state
and local police to enforce this immigration offense;
→ Impose
immigration penalties on U.S. citizens and lawful permanent
residents by limiting their rights to petition for their
relatives, if the citizens or lawful permanent residents
have committed certain crimes;
→ Increase
the penalties for failing to file notice of changes of
address; and
→ Make
voluntary departure rules harsher.
· english as the national language.
S 2611 would declare English to be the "national language"
of the U.S. and would provide that, unless otherwise
provided by law, individuals do not have a legal entitlement
to services or materials in any other language. It also
would provide that if there is a discrepancy between a form
provided in English and in another language, only the
English version governs. Finally, it would provide new
guidelines that could make the English and civics tests that
naturalization applicants are required to take more
difficult to pass.
Barriers to Legalization
The actual
number who would be able to legalize under the various
provisions listed above is difficult to determine because of
complications and barriers built into the bill that would
prevent many from qualifying. For example, among the
approximately two million undocumented immigrants who have
entered the U.S. since January 7, 2004, only those who are
the children or spouses of others who legalize will be able
to adjust their status. Other barriers include
·
cost. For most noncitizens who
qualify, the minimum cost of legalizing under the earned
adjustment program, in fines and fees, would likely exceed
$4,000. For many, this expense would be compounded by a
tax increase that would solely apply to legalizing
immigrants. Provisions added during Senate floor debate
would substantially increase the tax liability of legalizing
immigrants for past tax years by: (1) extending the number
of years for which back taxes are required; (2) tacking on
interest and penalties; (3) prohibiting immigrants from
calculating their taxes using the credits available to all
other taxpayers; and even (4) precluding refunds of
overpayments in those years. These tax provisions,
described by some during the Senate debate as vengeful and
unfair, appear to apply even to immigrants who have already
paid their taxes in full. They would substantially increase
the cost of legalizing and therefore the ability to do so
for many individuals. Requiring so large an expenditure
from such a predominantly low-income population would border
on extortion.
·
english-language
ability. As passed by the Senate, S 2611
would requires all applicants for earned adjustment to pass
the naturalization test for English and civics, although the
bill provides for age and disability exceptions to this
requirement. The same floor amendment that would make
English the national language of the U.S. also would
eliminate the option of meeting the English and civics
requirements by satisfactorily pursuing a course of study in
English of civics.
·
minor past crimes.
Provisions of S 2611 would preclude individuals who have
committed minor crimes years ago from obtaining legal
status.
·
uncertainty and
confusion. The overlapping paths to legal
status, each with its own set of requirements and
exclusions, would likely confuse immigrants, social service
agencies, and government employees alike, resulting in
missed deadlines and opportunities. Of particular concern
is the process for deferred mandatory departure available to
those who entered the U.S. between April 5, 2001, and
January 7, 2004. These individuals would be required to
sign away all rights to judicial review of future decisions
by immigration authorities, and then they would be required
to leave the U.S. within three years and return under one of
the existing immigrant or nonimmigrant categories. The
assumption is that almost all would return under the new
guest worker classification, but it is doubtful that this
process would work as intended.
Next Steps
Immigration
reform now will be taken up by a House-Senate conference
committee that will attempt to bridge the wide divide
between S 2611 and
HR 4437, popularly known
as the Sensenbrenner bill, which the House passed
in December. Unlike the Senate bill, HR 4437 would not
provide a path to legal status for undocumented immigrants.
It would not address family backlogs or make any other
helpful changes to our broken immigration system. The House
bill also contains many harsh provisions not included in the
Senate version, such as a drastic reduction in immigrants'
access to federal courts.
The conference
committee will negotiate over each detail of difference
between the House and Senate versions in an effort to
synthesize a single compromise bill. A majority of the
House conferees and a majority of the Senate conferees must
agree to the compromise version before it will be reported
back to the floor of each chamber for a final vote. The
Senate Republican and Democratic leadership agreed in
advance on the composition of the Senate's contingent of
conferees for the immigration bill, which will include a
majority of senators who have consistently supported a
comprehensive solution to our immigration problems,
including a path to citizenship for undocumented immigrants.
In contrast,
the House conferees will be appointed by Speaker Dennis
Hastert (R-IL), and their decisions will be controlled
entirely by the House leadership, which has pledged not to
permit a conference report to emerge unless supported by a
majority of Republican House members. This erects a very
high bar for any proposal that includes positive features,
given that nearly half of those representatives are members
of the House's "Immigration Reform Caucus," headed by Rep.
Tom Tancredo (R-CO).
Because of the
healthy Senate vote in favor of a comprehensive (though
flawed) approach, the Senate conferees will have a strong
mandate to retain the core concept of a path to citizenship
in S 2611 and to fight against provisions in the House bill
that would make the punitive aspects of the bill even
harsher. Despite expressions of optimism by some senators
in the past week or so, it will be very difficult for them
to find common ground with the House conferees, who are
likely to be intransigent. There is speculation that
Speaker Hastert may decide not to appoint any conferees as a
way of preventing uncontrolled negotiations on the bill.
In any case,
it is unlikely that a resolution will be forthcoming soon.
It is even possible that the conference committee will not
come to agreement until after the election, when Congress is
expected to meet in a lame-duck session to complete work on
the budget.
Conclusion
It is a shame
that the complex and ambitious Senate bill fails to live up
to the noble aspirations of its authors. But in the current
anti-immigrant environment, passage by the full Senate of
legislation that at least aspires to provide a path
to legal status for most undocumented immigrants in the U.S.
and to address family- and employment-based legal
immigration backlogs is a remarkable accomplishment, one
that is best explained by the emergence of a burgeoning
national immigrant rights movement from sea to sea, border
to border, and nearly all points in between.
Our goal at
NILC is to ensure that the bill that ultimately becomes law
is a significant improvement over the current version of
S 2611. We recognize that the needed improvements are
unlikely to happen in this conference, but at a minimum it
is critically important that the Senate conferees remain
resolute rather than give in to House demands for a bill
that would more closely resemble the one that the House
passed in December. Our job as advocates is to press the
conferees to retain the positive provisions of the Senate
bill and to improve those that are problematic. If
immigrant communities remain active and involved -- if the
movement for real reform grows -- then our supporters in
Congress may well come back after the election with the wind
at their backs and with a mandate for the kind of change
that will be good for immigrants, and good for the nation as
a whole.
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FOR MORE
INFORMATION, CONTACT
Josh Bernstein,
director of federal policy | 202.216.0261 x.2
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