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Analysis: Current Senate Bill Precludes Real Reform

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Monday, June 25, 2007

(Read statement released with this analysis:  “NILC Opposes Current Senate Bill Because It Would Preclude Real Reform”)

The following summarizes some of the provisions of S. 1639 that are particularly damaging to low-income immigrants and their family members:

Until “triggers” are met, undocumented immigrants in the U.S. will be eligible for no more than “probationary” immigration status.

S. 1639 sets up a 3-stage process in which undocumented persons who arrived before January 1, 2007, may obtain a Z nonimmigrant visa and ultimately adjust to lawful permanent residence.  But in the first stage, until certain “triggers” are met, undocumented immigrants could be granted only a “probationary” immigration status, and they would not be permitted to obtain even the temporary Z visa status.

The triggers include a requirement that the Department of Homeland Security (DHS) establish and demonstrate operational control over 100 percent of the international land border between Mexico and the United States.  It is doubtful that this goal can ever be met, which raises the question of whether the legalization program contained in the “grand bargain” is an illusory one.

Other triggers include the hiring, training and reporting for duty of 20,000 Border Patrol agents; building at least 370 miles of fencing and specified other border barriers; detention of all removable non–U.S. citizens apprehended crossing the U.S.-Mexico border; and establishment and use of identification standards and an electronic employment eligibility verification system.  Finally, DHS must establish that it has received and is processing and adjudicating in a timely manner the applications for provisional status in the Z visa process, which includes completing background and security checks.

DHS’s capacity (particularly in light of the historic incapacity of its immigration agencies and predecessor Immigration and Naturalization Service) to carry out these functions is in serious question.  Noncitizens potentially face a long or indefinite period of provisional status before their applications for Z status are finally adjudicated.

Most individuals granted Z visas would not be eligible for permanent residence for more than a decade.

Under S. 1639, Z visa holders would not be able to adjust their status to lawful permanent residence until at least 30 days after an immigrant visa becomes available for approved immigrant visa petitions filed before May 1, 2005 (the immigration backlog).  The purpose of this provision is to ensure that undocumented people go to “the back of the line” in obtaining permanent residence.

Prior to a confusing amendment offered by Sen. Jon Kyl (R-AZ) and approved by the Senate, the backlog reduction period was estimated to be 8 years.  It is unclear what the effect of the Kyl amendment is on how long Z visa holders must wait to apply to be permanent residents.  Assuming that the period remains 8 years, and assuming that the triggers have been met by that time, 20 percent of Z visa holders would be granted visas each of the next 5 years, years 9 through 14 after enactment.  As a result, the average amount of time in Z visa status would be at least 11 years, and the last undocumented immigrants would not be eligible for permanent residence until 14 years after enactment.  Z visa holders would remain in the precarious Z visa status for this entire period.  

Under S. 1639, Z visa holders, unlike other nonimmigrant visa holders, would not be permitted to change to another nonimmigrant status, nor would they be able adjust to lawful permanent residence except through the Z adjustment process established by the bill.  For example, if a Z visa holder marries, or gets a job that would otherwise permit her to adjust more rapidly, she would not be able to take advantage of the faster avenue to permanent status.

Z visa holders who are unable to maintain continuous full-time employment or school attendance would be deportable.

Z nonimmigrant visa holders between the ages of 16 and 65 would become deportable if they failed to “remain continuously employed full time” until they were able to adjust to lawful permanent residence.  This term is not defined anywhere in the legislation, so it would be defined by DHS, and there would be little or no opportunity to overturn the agency definition even if it were unreasonably narrow. 

The exceptions to the continuous full-time work requirement are narrow:  full-time school; work combined with school; physical or mental disability as defined under the Americans with Disability Act; pregnancy; temporary interruption to work because of a “force majeure” interruption (such as a hurricane, terrorism or war); or for a 180-day interruption due to extraordinary circumstances, in DHS’s discretion.  Given these limited exceptions, depending on the definition adopted, persons who could lose their status and be deported include:

  • A worker injured on the job and placed on workers’ compensation leave but whose injuries do not amount to an ADA disability.

  • A worker who loses his job or is temporarily laid off because of an economic downturn or whose factory closes because the company has moved its operations to a country with lower labor costs and who is out of work for a period of time.

  • A worker who is fired for having complained about safety violations at the worksite.

  • A woman who has recently given birth.

  • An adult unable to work full time because she is caring for young children, or for a disabled child or elderly or disabled parent or other relative.

  • Domestic workers, day laborers, or others who cannot demonstrate full-time employment.

  • Seasonal workers unable to demonstrate continuous employment.

  • Self-employed individuals.

Z visa holders would be vulnerable to deportation due to loss of employment from the moment they obtain their visa until the day, years later, when they become lawful permanent residents, even if they have U.S. citizen children, have bought houses or started businesses, and have established roots in their communities.  S. 1639 provides Z visa holders with job “portability,” permitting them to work for any employer.  But in practice they would fear termination far more than others because the consequences of losing their job would be so dire.  This would make them extremely vulnerable at the workplace and therefore less able to assert their labor and employment rights.

Although the Z visa program is purportedly part of the broader legalization program, in essence these workers would form part of a temporary worker program, working and living under very vulnerable conditions.  They would be bound to the years-long wait, precarious legal status, and family separation that a Z visa would entail.

S. 1639 would ensure the impoverishment of legalizing immigrants by imposing unreasonable fees and fines, raising their taxes, and reducing their Social Security benefits.

Under S. 1639, undocumented persons in the U.S. would be required to pay high fees to obtain Z visa legal status.  These include:

  • For the initial Z visa:  a processing fee of up to $1,500 per person, a penalty of $1,000 for the principle Z visa applicant plus $500 for each additional family member, and a $500 state impact assistance fee.  The initial fees, penalties, and state impact assistance fee for a family of four would be up to $9,000.

  • For renewal after 4 years (visas must be renewed every four years indefinitely):  a processing fee of up to $1,500 for each family member.  The renewal fees for a family of four would be up to $6,000 every four years.

  • For adjustment to lawful permanent residence:  an application fee for each applicant which soon may be $905, plus a penalty of $4,000 for the principal applicant, all in addition to the cost of travel to the applicant’s home country to file the application.  The fees for a family of four would be up to $7,620.

The fees for a family of four through adjustment of status would be up to $28,620, assuming two renewals (or higher if the adjustment of status fees are raised yet again as DHS has done consistently in recent years).

Under an amendment offered by Sen. Jeff Sessions (R-AL) (who opposes the underlying bill) and approved by the Senate, both Y temporary worker visa holders and Z visa holders would be ineligible for the Earned Income Tax Credit (EITC).  The denial of the EITC to lawfully present nonimmigrants has real economic significance.  The EITC lifts working families out of poverty primarily by lowering the payroll and income tax burdens imposed on low-income working families.  In some cases, it also provides a refundable credit to eligible families.

During the debate, Sen. Edward Kennedy (D-MA) said that this would be the first time in U.S. history that we create a two-tier tax system, using the tax system as a form of punishment and demarcating one group of lawful residents to be subject to an inferior set of rules.  According to Sen. Kennedy, 98 percent of the EITC goes to families with children, so the hardship imposed by this measure would be experienced by the children of legalized immigrant parents, many of whom are U.S. citizens.

The average value of the EITC is $2,200, so denying it would amount to a total tax increase of more than $24,000 during the average 11-year period in which a family headed by a legalizing immigrant might wait in legal status before becoming lawful permanent residents under the system created under the bill.  The burden of this tax hike falls on families who will already need to scrimp and save in order to pay the fees and fines levied against a family of four seeking to obtain a green card.

This tax increase, combined with the application fees and penalties, might well cause legalizing immigrants to face an insurmountable financial burden that could effectively prevent them from becoming permanent residents and citizens.  This would defeat a central goal of the bill.

Moreover, the bill would, for the first time, single out those who are not “natural-born” U.S. citizens for discriminatory treatment in access to and computation of Social Security benefits.  Foreign-born persons — both immigrants and naturalized citizens — who obtained their Social Security numbers after January 1, 2004, would be denied Social Security credit for work done while not work-authorized, including work on which they paid income and Social Security payroll taxes.  As a result, even after leaving the Z visa status and achieving lawful permanent residence and even citizenship, not all of their Social Security contributions would be counted towards their benefits when they retire or become disabled.  An audacious amendment filed by Sen. John Ensign (R - NV) and set for consideration when the Senate debate resumes would impose even broader-sweeping new restrictions against foreign-born persons, potentially requiring the Social Security Administration to redetermine the entire past work history of all foreign-born persons, jeopardizing elderly and disabled naturalized citizens who are already receiving retirement or disability benefits.

S. 1639 would establish a large new temporary worker program that fails to meet key bottom-line requirements for such a system.

S. 1639 would establish a temporary worker Y visa under which workers may, if they have a job lined up in the U.S. with a certified employer, be admitted for 2 years.  They would be able to extend the period of admission twice, but they would be required to live outside the U.S. for 1 year between each period of authorized admission.  In other words, they could work in the U.S. for 2 years, then leave for 1 year, then work in the U.S. for 2 years, then leave for a year, and then work again in the U.S. for 2 years for a total of 6 years of work.  This would be unworkable for Y visas holders or for employers who want a reliable workforce.

These temporary workers would have no realistic path to permanent residence because they would be required to qualify for permanent residence under the same new “merit”-based system as others applying from outside the U.S.  But they would be extremely unlikely to have the requisite number of points based on employment, education, and English language ability to qualify them for permanent residence status.  The inability to obtain lawful permanent residence would most likely result in the creation of a large pool of undocumented formerly temporary workers.

The temporary workers also would not have true job portability — the ability to change employers freely if they are mistreated.  Rather, they would only be able to switch to another employer that has also been certified under the Y visa program.  This limitation would make them vulnerable to exploitation, including being paid at a lower rate and having to work under unsafe conditions, and unable to complain about these conditions or discrimination.  Because these workers would be required to return home for yearly intervals, they would be less likely to organize collectively to improve their working conditions or to join unions.

The Senate bill does little to address in its new temporary worker program the rampant exploitation of existing H-2A and H-2B temporary worker programs.  For example, it does not hold labor recruiters and employers jointly liable or increase oversight and monitoring by the U.S. Department of Labor of predatory employers that misuse these visa programs to import cheaper labor and displace U.S. workers.

S. 1639 devalues family ties and would enshrine in law years of family separation.

Z visa holders would endure years of separation from spouses and children who live outside the U.S.  During the time they hold probationary status or a Z nonimmigrant visa, they would be prohibited from petitioning to bring their spouses and children to the U.S.  The result would be an unconscionably long separation from close family members.
When Z visa holders obtained lawful permanent residence, they would then join the long line of other lawful permanent residents petitioning on behalf of their spouses and children for a reduced overall number of immigrant visas.

Temporary worker Y visa holders would not be permitted to bring their families to the U.S. unless they could satisfy hard-to-meet requirements of wages 150 percent above the poverty level and unless they had medical insurance (a requirement that few low-wage earners would be able to meet).  Even then, their ability to bring their families would be limited:  a family member who accompanied a worker during the first 2-year period would be barred from doing so during the second period, and one who came during the second 2-year period would not be able to do so during the third.

The inability of Z and Y nonimmigrants to bring their families to the U.S. would be compounded by the bill’s abandonment of a family-based immigration system in favor of an untested point system that gives little weight to family relationships.  The bill reduces the number of immigrant visas that will be available for family members, and it eliminates the ability of U.S. citizens to petition for siblings and adult children.  The shift to a point system would judge immigrants based on their opportunities in other societies rather than their potential in ours.  This runs directly counter to historic American values.

Failure to assure confidentiality of application information would deter eligible individuals from applying. 

For immigration reform to be effective, current undocumented immigrants must be persuaded that it is safe to present themselves to a government agency that they have come to mistrust.  They will need assurances that the information they provide on their applications about their histories, their employers, and their families will not be used against them or their loved ones.

S. 1639 would do the opposite.  It contains sweeping provisions mandating disclosure of information in legalization applications in connection with criminal or national security investigations as well as investigations of a civil violation.  Even a civil violation totally unrelated to immigration (for example, failure to obtain a business license) would sweep away confidentiality.  The provision would permit a fishing expedition for information, with no oversight or limits whatsoever.

Under the bill, there would not be any confidentiality protections if a Z visa or adjustment application were administratively denied.  The breach of confidentiality would not be limited to cases where fraud, criminal violations, public safety, or national security are at issue.  Application information could be disclosed where an application was denied because the applicant did not meet the requirements related to English proficiency, physical presence, work, knowledge of civics, health, or many other reasons.  Application information could be used against an applicant even when a case had been appealed to a court, and even when a court ruled in the applicant’s favor.

The risk to immigrants from disclosure of information that could lead to their deportation would have no time limits, since information in a legalization application could be used against legalizing immigrants and their families indefinitely.

S. 1639 would establish an unworkable electronic employment eligibility verification system that would be a detriment to all workers.

S. 1639 would require every employer in the United States to verify the employment eligibility of their workforce — immigrants and U.S.-born workers — through a new Electronic Employment Verification System (EEVS).  In fantastical fashion, S. 1639 mandates that this massive new system be up and in place in all workplaces and for all new hires within 18 months, and that it be applied to the entire existing U.S. workforce within 36 months.  These timelines are absurdly short for such a massive undertaking involving new regulations, agency capacity, new computer algorithms, training, planning, and equipment for millions of employers.

The EEVS established by S. 1639 is not workable, does not provide strong due process protections, does not protect against discrimination, and does not protect privacy.   The most troubling provision is the requirement in Title I that the guest worker and legalization programs for which it provides may not be implemented until the EEVS (including the use of “secure” documentation and digitized photographs that do not currently exist) is implemented.  Because of this pressure, the focus will be on getting the EEVS up and running as quickly as possible, rather than on implementing an accurate system that actually works without adversely impacting authorized workers.

In addition to containing this “trigger” provision, the bill does not address the weaknesses in the current electronic verification system (the Basic Pilot program), which has been in existence since 1997 and has been plagued by problems, including inaccurate databases, flawed design and employer misuse of the program.  Only about 17,000 employers nationwide currently participate in the Basic Pilot, and its expansion to mandatory use by over 7 million employers with 160 million workers would be a complicated and logistical challenge in the best of circumstances.

Besides creating an unreasonable and unworkable implementation timeline, the bill also weakens the antidiscrimination protections in current law.  The process for confirmation of employment eligibility could punish workers for DHS errors, and workers will have insufficient due process protections.  The documentation requirements — which rely heavily on state compliance with the REAL ID Act and use of a not-yet-in-existence biometrically-enhanced Social Security card — are unattainable.  Finally, employers, state and federal government agencies, and the Social Security Administration would be required to turn over to DHS confidential information about workers, with little in the way of privacy protections and no remedies for misuse of personal information.

This unworkable mandatory EEVS program is likely to result in tens of thousands of documented immigrants and U.S. citizens losing their jobs because of database inaccuracies and because the time periods provided for workers to correct their data and save their jobs are inadequate.  In addition, the proposed EEVS program will do nothing to address the probability that the country’s undocumented population will, in all likelihood, actually grow as a result of (1) people overstaying their Y visas and (2) Z visa holders losing their jobs, thus failing to meet the continuous employment requirement and sliding into the underground economy.