Bipartisan Immigration Reform Bill Introduced By Senators Hagel And Daschle

IMMIGRATION LAW & POLICY

Congressional Developments

Bipartisan immigration reform bill introduced by Senators Hagel and Daschle
Immigrants' Rights Update, Vol. 18, No. 1, February 17, 2004

Two weeks after President Bush announced his administration's proposal for comprehensive immigration reform, Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD) introduced bipartisan legislation they hope will help fix the U.S.'s broken immigration system. In broad strokes, their new bill (S. 2010, introduced Jan. 21, 2004) would:

Provide a mechanism whereby most currently undocumented workers could earn permanent legal status;
Significantly reduce the waiting time for immigrants coming to join U.S. citizen and lawful permanent resident family members; and
Create a new temporary worker program that would provide a way for temporary workers who set down roots in the U.S. and choose to stay here to eventually acquire permanent status.

Family Reunification. S. 2010 would reclassify the spouses and minor children of lawful permanent residents as "immediate relatives" not subject to per-country immigration limits. It would provide that visas issued to immediate relatives would no longer be counted against the worldwide 480,000-person cap for family-based immigration. And it would make more visas available to other family categories. According to the bill's authors, U.S. State Dept. data suggest that these changes would eliminate the visa backlog in family immigration categories within about four years.

Earned Adjustment. S. 2010 would allow for adjustment to lawful permanent residence by workers who can prove "continuous physical presence" in the U.S. (apart from brief, casual, or innocent absences) for at least five years before the bill's date of introduction, who pay a $1,000 fine plus fees, and who can meet certain other requirements, such as payment of taxes, knowledge of English and civics (or enrollment in relevant classes), and clearance of a law enforcement and criminal background check. To qualify, individuals would also have to prove that they worked during at least three of the five years before the bill's introduction, and that they worked at least one year after the bill was enacted. Exempted from the work requirement would be children under 20, the worker's spouse, and persons granted humanitarian waivers for such reasons as pregnancy or disability.

An additional "transitional worker" program would be available to some undocumented immigrants who do not satisfy the continuous residence and/or work requirements and who have worked in the U.S. for at least two of the five years before introduction of the bill. An apparent drafting error makes the specific requirements for qualifying for this provision a little murky. Upon application, payment of fine and fees and security clearance, those eligible would be granted a three-year temporary status and would eventually qualify for permanent residence if they work for at least two years after enactment of the bill.

Depending on how the transitional worker program is interpreted, it is likely that a million or more persons who have been in the U.S. in undocumented status would be unable to qualify for either the earned adjustment or the temporary worker visas.

Willing Worker Program. S. 2010 would significantly modify the current H-2B temporary worker program and create a new H-2C program. Together, the two programs would provide up to 350,000 temporary visas each year, a more than five-fold increase over the number of visas available under the current H-2B program. The spouse and children of a participating worker would be permitted to accompany the worker, though they would be ineligible to be employed in the U.S. unless they qualified independently for temporary worker status. The temporary visas would not be available to undocumented immigrants who have lived illegally in the U.S. for more than six months.

A key feature of the new program-and one that strongly differentiates it from the president's guest worker plan-is that a temporary worker's employer or the worker's union would be permitted to petition at any time for the worker to remain in the U.S. permanently. In addition, after three years of maintaining lawful temporary status, workers would not need to rely on their employers (or unions) to petition for them because they would be eligible to petition for themselves.

An employer wishing to make use of the program would pay a per-worker fee and would be required to abide by certain regulations designed to protect U.S. workers. For example, participating employers would be required to attest that they are not involved in a labor dispute, that they have tried and failed to recruit employment-eligible workers already in the U.S., and that they will pay the prevailing wage to the temporary workers. S. 2010 provides for an administrative complaint procedure for violations of these provisions that could result in a fine against the employer and equitable relief for the aggrieved worker, and also in the possibility of the employer being barred from participating in the guest worker program for one or more years. Importantly, though, workers would have no access to court to enforce their rights.

Temporary workers would be entitled to the full protection of federal, state, and local labor laws enjoyed by other workers; and the bill provides, among other things, for whistleblower protections intended to address the particular vulnerabilities faced by guest workers who endeavor to vindicate such rights. But, unfortunately, labor laws have proven notoriously insufficient to protect all workers in the sectors in which immigrant workers are concentrated, and S. 2010 provides no additional resources to improve enforcement of workplace protections such as minimum wage and worker safety laws.

Because labor law enforcement is so ineffective, often the only practical solution available to an exploited worker is to change jobs. S. 2010 would provide for limited implementation of an important feature known as "portability," under which temporary workers would be permitted to change employers without losing their right to remain in the U.S. Under S. 2010, the new employer would have to meet the qualifications and paperwork requirements for participation in the temporary worker program, and would have to file the same petition as the original employer. In some cases the worker would also be required to obtain a waiver from the Dept. of Homeland Security before switching jobs.

More analysis of the Hagel-Daschle immigration reform proposal is available under "Latest News" on the first page of NILC's website, www.nilc.org.