SUMMARY & ANALYSIS
Border Security, Economic Opportunity, and Immigration Modernization Act of 2013
Last updated AUGUST 15, 2013 | Resumen en español (PDF)
La traducción de este resumen al español no ha sido actualizado desde la introducción inicial del proyecto de ley.
At this historic juncture, the U.S. Senate has passed the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S.744), which, if enacted, would comprise the largest-scale overhaul of our immigration system in more than 25 years. Significantly, the bill would provide a road to U.S. citizenship for perhaps as many as 11 million unauthorized immigrants, allocate billions for militarization of the southern border, and restructure the family immigration system. The bill also would create stringent enforcement and deportation measures, and it would ramp up workplace enforcement by mandating that employers use an electronic employment eligibility verification system (E ‘Verify). As we assess the impact of this legislation and any potential legislation introduced in the House of Representatives, NILC will continue to advocate for a new immigration process that is fair and accessible for low-income immigrants.
TITLE I: BORDER SECURITY
- Initial implementation. Within 6 months of the bill’s passage, the secretary of the U.S. Department of Homeland Security (DHS) would be required to craft a strategy to increase surveillance at all southern border sectors and to extend the existing barriers along the U.S.-Mexico border so that they total 700 miles of barriers/fencing. The goal of the strategy would be to apprehend 9 out of every 10 immigrants who attempt to enter the country at these border sectors without permission (also known as a 90 percent effectiveness rate).
- Funding. The bill allocates an astronomical $46.3 billion for border enforcement.
- Commission. An advisory Southern Border Security Commission would be established no later than one year after the bill’s enactment. The DHS secretary may use $2 billion in funding to carry out the activities recommended by the commission.
- Use of force. Use-of-force policies and trainings would be implemented, along with a complaint procedure. U.S. Customs and Border Patrol officers, along with other federal law enforcement officials, would be subject to a prohibition on racial or ethnic profiling.
- Trigger to begin legalization. Before registered provisional immigrant (RPI) status is granted to unauthorized immigrants, the DHS secretary must certify that implementation of the U.S.-Mexico border strategy has begun.
- LPR trigger.Before RPIs can adjust to lawful permanent resident (LPR) status (i.e., obtain a “green card”), the DHS secretary must:
- Certify that the U.S.-Mexico border surveillance and fencing strategy has been “substantially deployed” and is “substantially operational”;
- Deploy 38,405 full-time active-duty Border Patrol agents along the southern border;
- Implement a mandatory electronic employment eligibility verification system (E ‘Verify), to be used by all employers in the U.S.; and
- State that DHS is using an electronic system to identify those who are exiting the country at air and sea ports of entry.
The allocation of massive amounts of funding to the U.S.-Mexico border at a time when the federal government has mandated spending cuts for education and infrastructure is wasteful. According to a Jan. 2013 report by the Migration Policy Institute, the federal government spends more on federal immigration enforcement than on all other principal federal criminal law enforcement agencies combined, with nearly $18 billion spent in fiscal year 2012 alone.
During these tough economic times, Americans agree that resources should be used wisely and effectively. Recent polling data suggests that the majority of Americans prefer that funding be invested in fighting drug and weapons trafficking as opposed to going after immigrants who cross the border without authorization. In the past, border militarization has led to excessive use of force and racial profiling of border residents. We wholeheartedly support the use-of-force training and a racial profiling prohibition, however. Border communities have been demanding more accountability and oversight of border enforcement. Any future efforts at strengthening the border should focus on meeting those community demands.
TITLE II: IMMIGRANT VISAS
Registered Provisional Immigrant (RPI) Status
In order to be eligible for RPI status, a person must:
- Have been physically present in the U.S. on or before Dec. 31, 2011,
- Have maintained continuous presence up until the date of application,
- Have settled any assessed federal tax liability,
- Not have been convicted of certain criminal offenses, and
- Not have been a lawful permanent resident, asylee, refugee, or present in the U.S. in a lawful nonimmigrant status.
After 6 years of having RPI status, the person to whom it was granted must apply to renew it. After 10 years in RPI status, the person would be eligible to apply for LPR (or “green card”) status. An additional 3 years in LPR status is required before individuals may apply for U.S. citizenship.
- Fees and fines. Fees paid by the applicant must cover the cost of the application process, and fines would be assessed as follows: $1000 at RPI application ($500 may be paid when filing the initial application and $500 at renewal), and $1000 at adjustment to a green card.
- Back taxes. A person with RPI status must also pay any back taxes owed since he or she was granted the status.
- Time limit to file. Immigrants may file for RPI status up to one year after the time that the final regulations are published by DHS. The DHS secretary may extend this limit for an additional 18 months.
- Ability to apply for family members. A person with RPI status would also be able to apply for RPI status for dependent children or his/her spouse, provided they were in the U.S. on the date the RPI status was granted to the principal applicant and also that they were present in the U.S. on or before Dec. 30, 2012.
- Individuals in custody or removal proceedings. Individuals who are apprehended by immigration authorities before the application period, are in removal proceedings, or have been ordered removed would be able to apply after establishing eligibility for RPI status.
- Individuals outside the U.S. Individuals who departed from the U.S. subject to an order of exclusion, deportation, removal, or voluntary departure, and who are outside the U.S. or who reentered unlawfully after Dec. 31, 2011, without receiving DHS consent to reapply for admission would not be eligible to apply for RPI status. However the DHS secretary may waive this bar for spouses or children of a U.S. citizen or LPR, parents of a child who is a U.S. citizen or LPR, or individuals who meet certain requirements under the DREAM-related provisions that are included in the bill. In addition, prior to granting this waiver, DHS must determine whether the person has a criminal conviction, notify and consult with any victim to determine whether to grant the waiver, and notify the victim that the waiver was granted.
- Who is not eligible. Those who have been convicted of the following are not eligible for RPI status: a felony, an aggravated felony, 3 or more misdemeanors (other than immigration status–related convictions), certain foreign offenses, and unlawful voting. Aggravated felonies can include minor offenses such as shoplifting.
- Nationality-based additional security screening. DHS is required to conduct an additional security screening of RPI applicants, spouses, and children who resided in a country or region “known to pose a threat, or that contains groups or organizations that pose a threat to the U.S.”
- Requirements for renewal. At renewal, RPIs must demonstrate that they have been employed regularly and are not likely to fall below the federal poverty level.
- Requirements for lawful permanent residence (LPR status or “green card”). At the stage of applying for adjustment to LPR status, RPIs must demonstrate that they are employed regularly and show that they are likely to have income or resources at 125 percent of federal poverty level wages or satisfy certain education requirements. They must also demonstrate that they are pursuing a course of study in English and U.S. history/civics.
- Waiver. The DHS secretary would have the authority to waive certain restrictions for humanitarian purposes, to ensure family unity, or if it is in the national interest.
While we are pleased that the bill would provide a road to citizenship for unauthorized immigrants, we have grave concerns about affordability and other roadblocks that would limit who can actually get on the road to citizenship. More than a quarter of undocumented families have annual incomes lower than $20,000, and fines totaling $2000 pose a significant hurdle for these families. In addition, a work requirement is unnecessary. Unauthorized immigrants already participate in the labor force at high rates (94 percent for men between the ages of 18 and 64), and requiring proof of regular employment (with no gap longer than 60 days) from those who seek to renew their status will be difficult for many low-wage immigrants in irregular or seasonal employment and creates an unnecessary level of governmental red tape. Many immigrants have a desire to learn English, but, given the limited availability of English-as-a-second-language courses, we are concerned that many will be unable to satisfy the English requirement. If this requirement remains in the bill, we must ensure that immigrants have the ability to access affordable courses. We have grave concerns that the additional national security screening based on national origin will likely result in racial profiling of religious and ethnic minorities. Given the government’s inhumane detention and deportation practices, it is important that this bill provide an opportunity for people who have been deported, and who are either DREAMers or have a U.S. citizen or LPR immediate family member, to be reunited with their families.
An expedited road to citizenship would be available to those who entered the U.S. before the age of 16, graduated from high school (or received a GED) in the U.S., and attended at least 2 years of college or served 4 years in the uniformed services. DREAMers would apply for RPI status, and, after 5 years, would be eligible to apply for adjustment to LPR status. They then would be able to apply immediately for U.S. citizenship.
- No age cap. There would be no upper-age limit for those who apply under this provision. This makes sense, since the relevant issue is the person’s age at the time of entry into the U.S., not his or her current age.
- DACA streamlining. The DHS secretary would have the discretion to establish streamlined procedures for people already granted Deferred Action for Childhood Arrivals (DACA).
- No penalty for offering in-state tuition. The bill would repeal a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 that prohibited public universities from offering in-state tuition rates to undocumented students on the basis of residence in the state, unless they offered the same rates to nonresidents of the state.
- Educational loans. RPIs who entered the U.S. prior to age 16 (and agricultural workers with blue card status) may qualify for federal work-study and federal student loans. They remain ineligible for federal Pell grants until they adjust to LPR status.
These provisions comprise the best version of the DREAM Act to date. We are particularly heartened by this expedited process for DREAMers that recognizes the special circumstances of those brought to the U.S. at a young age. We urge the DHS secretary to establish streamlined procedures for DACA recipients.
Family- and Employment-based Immigration
The bill provides for significant changes to the family- and employment-based immigration system, including the elimination of certain immigration/visa categories altogether and the lifting of visa caps for others. A new “merit-based” system would be created, and the substantial backlog in the current preference system would be eliminated.
- Eliminated categories. The bill would eliminate family-based visas for siblings of U.S. citizens and set a cap at age 31 for married sons and daughters of U.S. citizens seeking immigrant visas. These changes would take effect prospectively, 18 months after the date of enactment of the bill, and people could file visa petitions to immigrate these relatives up until this effective date.
- Uncapped categories. Importantly, spouses and children of LPRs would be considered immediate family members and therefore would no longer be subject to arbitrary visa caps. Spouses and children of those receiving Science Technology Engineering and Math (STEM) visas, other professionals, and foreign doctors would also be able to have their spouses and children join them.
- Merit-based “Track One” immigrant visas. The bill initially would allocate 120,000 immigrant visas per year for Track One visas, a number that could increase by as much as 5 percent each subsequent year as long as unemployment remains under 8.5 percent, up to a cap of 250,000 visas. The visas would be allocated based on a point system that takes into account various factors, including educational degrees, employment experience, the needs of U.S. employers, U.S. citizen relatives, and age.
- Merit-based “Track Two” visas. Track Two visas would be available for people who are currently beneficiaries of backlogged employment- and family-based visa petitions, for immigrants who have been waiting for a visa for at least 5 years, and also for individuals who have been lawfully present in the U.S. for at least 10 years. Family members with pending petitions would be allocated transitional merit-based visas such that they should all be allocated over the 7-year period from 2015 to 2021.
- Repeal of the Diversity Visa Program. The Diversity Visa Program would be repealed as of Oct. 1, 2014, although noncitizens who were selected in the diversity visa lottery in fiscal year 2013 or 2014 would remain eligible to receive a visa under the program.
- V nonimmigrant visas. The bill would create a new nonimmigrant V visa for the beneficiaries of family visa petitions to live and work in the U.S. while waiting for their immigrant visas to be approved.
- No provision for same-sex couples. The Uniting American Families Act is not included in the bill, thereby relegating same-sex couples to second-class status and creating further family separation.
- W nonimmigrant visas. The bill would create a new worker program for low-skilled workers who will work for 3 years for registered employers in an occupation with labor shortages, with the ability to renew the visa for an additional 3 years. W visa holders would have the ability to eventually apply for merit-based green cards and to switch to another registered employer and job at will. Dependents would be able to join the W visa–holder and would receive work authorization.
While we are disappointed with the proposed elimination of the sibling and the diversity visa categories, we are hopeful that the proposed aggressive backlog reduction measures would address the current bottleneck. We support measures to eliminate visa caps on immediate family members so that spouses and parents can be reunited quickly. It is notable that people who have been lawfully present for 10 years, such as those with temporary protected status (TPS), would essentially get credit for the years they have been in the U.S. and would be able to adjust to LPR status immediately. Further analysis of the merit-based visa system is needed to understand its impact on low-income workers and families.
Access to Public Benefits and the Affordable Care Act (ACA)
- Federal public benefit programs. Individuals granted RPI status, “blue card” status (agricultural workers), and V nonimmigrant visas will not be eligible for the following “federal means-tested public benefits” programs: nonemergency Medicaid, Children’s Health Insurance Program (CHIP), Supplemental Nutrition Assistance Program (SNAP or food stamps), Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI) for the duration of their provisional status. When most of these individuals adjust to LPR status, they will be forced to wait at least five additional years before becoming eligible for these programs. As a result, an individual with RPI status who is otherwise eligible for public benefits would not be able to enroll in programs such as Medicaid and SNAP for 15 years.
- Social Security credit. Individuals with RPI status and visa over-stayers may not claim credit for any quarter of coverage earned between 2004 and 2014 in which they were not authorized to work. This provision applies to quarters used in determining eligibility for Title II Social Security retirement benefits as well as Social Security Disability Insurance (SSDI).
- Affordable Care Act. Individuals granted RPI, blue-card, or V nonimmigrant visa status will be able to buy private health insurance at full cost through the insurance marketplaces created under the Affordable Care Act (ACA). However, during the duration of their provisional status, these individuals will not be eligible for the ACA’s premium tax credits and cost-sharing reductions that will help make health insurance affordable for low- and middle-income, working families. Also, those with RPI, blue-card or V nonimmigrant visa status will not be subject to the ACA’s requirement to have health insurance or pay a tax penalty.
Currently eligible individuals with a B visa (temporary visitors for business or pleasure) or F visa (students, as well as their spouses and children) will also be excluded from the ACA’s premium tax credits and cost-sharing reductions and also are not subject to the ACA’s health insurance requirement or tax penalty. However, unlike individuals granted RPI, blue-card, or V nonimmigrant status, B and F visa holders won’t be able to purchase private health insurance full cost through the ACA-created insurance marketplaces.
Other categories of immigration status that are included in the bill, including workers in expanded H-category visas, low-skilled workers who obtain W visas, and individuals who adjust to LPR status from RPI or blue-card status or through the clearing of the visa backlogs, will be eligible for the ACA and related subsidies under existing law while in that status. They will not be eligible for federal means-tested public benefits until they adjust to LPR status and then meet the five-year waiting period.
The unduly harsh restriction on Social Security credit denies credit for up to 10 years of work performed and Social Security taxes paid by these individuals. Under the bill’s provisions, individuals granted RPI status, blue-card status, and V visas are arbitrarily and harmfully denied access to affordable health care and nutrition assistance for 5 to 15 years. B and F visa holders are also unnecessarily excluded. Yet during this same period, these individuals are expected to work in order to provide for themselves and their families. But no one can predict when he or she will fall ill or be injured in an accident, which is why individuals on the road to citizenship and those studying or working here for extended periods of time need access to affordable health care to fulfill their American dreams.
TITLE III: INTERIOR ENFORCEMENT
This title contains many subparts, including: a section that requires employers to use an electronic employment eligibility verification system; worker protections, including the POWER Act; asylum and refugee provisions; immigration court reform; and new provisions related to violations of immigration law that constitute crimes.
Electronic Employment Eligibility Verification System (EEVS)
The bill would require all employers to use the federal government’s EEVS to verify the employment eligibility of newly hired employees; the requirement would be phased in by employer size. The EEVS provision contains significant due process and worker protections for U.S. citizens and employment-authorized individuals who are affected by a system error. An example of an electronic employment eligibility verification system is E-Verify.
- Implementation. Employers with more than 5,000 employees must begin using the EEVS, for newly hired employees and employees with expiring work-authorization documents, within 2 years after the regulations are published. Similarly, employers with more than 500 employees must begin using the EEVS within 3 years, and agricultural employers and all other employers must begin using the EEVS within 4 years.
Increased Worker Protections
- Hoffman Plastic fix. The bill would create an important legislative fix of the Supreme Court’s decision in Hoffman Plastic Compound, Inc. v. NLRB, 535 U.S. 137 (2002), by specifying that neither back pay nor any other damages (except any reinstatement remedy prohibited under federal law) shall be denied to an individual based on his or her immigration status.
- POWER Act. The bill increases legal protections for immigrant workers who are wrongfully terminated or who experience significant workplace abuse. The bill would bolster legal remedies to immigrant workers who are fired in violation of labor laws, while providing for U-visa relief for whistleblowers who experience serious workplace abuse, exploitation, or retaliation.
We continue to be concerned about forcing all employers to use an EEVS. Requiring that employers use the EEVS could have particularly significant consequences especially for work-authorized women and immigrants about whom government databases have incorrect information due, for example, to marriage-related name changes or hyphenated last names. The protections included in this provision represent the minimum level of due process for U.S. citizens and work-authorized individuals who face possible job losses due to this mandate. If the mandate is enacted, it must be accompanied by a generous legalization program, otherwise workers will go further underground and face exploitation by unscrupulous employers. A mandatory EEVS program will undoubtedly make it very difficult for any future undocumented worker — or any current worker excluded from this proposed legalization program — to get a job. Abusive employers who want to game the system may still do so by trying to exploit workers. The inclusion of the POWER Act provisions are critical to providing those workers with the ability to hold those employers accountable.
- No fix to racial profiling laws. The bill contains no language to make clear that state laws that inevitably result in racial profiling by law enforcement, such as Arizona’s SB 1070, violate the U.S. Constitution and are preempted by federal immigration law.
The bill misses the opportunity to neutralize dangerous state and local laws and policies that result in racial profiling and to further discourage or preempt states and localities from enacting such laws in the future.
- Single level of administrative review. The DHS secretary would designate a single level of administrative review for denials or revocations of RPI status. The applicant for RPI status would have 90 days from the date of the negative decision to administratively appeal a denial or revocation of RPI status, “unless delay was reasonably justifiable.” Notably, there would be a stay of removal pending appeal, newly discovered or previously unavailable information would be allowed, and there would be no accrual of unlawful presence during administrative appeal.
- Review in federal court. The bill provides for judicial review of denied RPI applications or revocations of RPI status in federal district court in the judicial circuit where applicant resides. The judge would have discretion to issue a stay of removal (meaning the noncitizen could not be deported) pending appeal, and there would be no accrual of unlawful presence during the judicial review. These determinations could then be appealed to the circuit court of appeals. For individuals seeking to appeal a denial or revocation of RPI status in connection with an order of removal, however, judicial review would be available only in the circuit court of appeals, if the decision had not already been upheld in a prior decision.
- Information on applications or provided by employers. The bill limits disclosure of information on applications, except in some narrow instances for criminal prosecution or investigations. It also allows audits for immigration fraud schemes. Employers will not be held liable for having hired unauthorized immigrants for whom they provide information to support RPI applications.
Detention/Bond/Alternatives to Detention and Stipulated Orders of Removal
The bill makes a number of important changes to the massive immigration detention system. It includes provisions to ensure timely custody and bond determinations and to allow for greater use of alternatives to detention. It also includes critical provisions to oversee the nation’s sprawling immigration detention system, to attempt to ensure that facilities meet the government’s own minimum standards for detention conditions.
- Bond. The bill contains a host of provisions to increase the ability of detained immigrants to get bond quickly and to have an immigration judge review decisions to hold an immigrant in custody.
- Stipulated orders of removal. The bill requires an in-person hearing before an immigration judge to determine whether the individual who has signed a stipulated order of removal did so knowingly, voluntarily, and intelligently. This is a much-needed provision to ensure that stipulated orders of removal comport with due process.
- Oversight of detention facilities. The bill requires the DHS secretary to inspect all immigration detention facilities annually and, in addition, calls for unannounced inspections. It imposes significant financial penalties for failure to comply with detention standards at any immigration detention facility. These penalties are an important first step in ensuring that facilities that fail to meet basic standards face consequences and that noncitizens in detention have access to basic services.
New Grounds of Inadmissibility
The bill includes several changes to immigration law that would increase the number of people who would not be admitted into the U.S. or who would be removable from the U.S.
- Fraud. Creates new, stringent civil and criminal penalties for misuse of a passport, likely including instances in which a worker uses a fraudulent passport or a passport that belongs to another person for employment eligibility verification purposes. The bill takes steps to punish notario fraud and other unscrupulous people who defraud people needing help with the immigration process. It creates penalties of fines and incarceration of up to 10 years for people who provide fraudulent immigration services, as well as fines and incarceration of up to 15 years for a person who misrepresents him/herself as an attorney or accredited representative.
- Gang, DUI, domestic violence. New grounds of inadmissibility include convictions for gang activity, 3 convictions for driving under the influence, sexual abuse, and domestic violence.
We oppose expanding grounds of inadmissibility and removability, especially in the absence of a judicial process in which the equities can be balanced as to whether the noncitizen should be allowed to remain in the U.S. These changes will result in the continued separation of families and the destabilization of our communities at a time when deportations have reached a record high of over 400,000 per year.
There is much to digest in this broad reworking of our current immigration system. While the bill proposes many positive changes, we continue to be concerned about onerous roadblocks on the road to citizenship, punitive health and benefits provisions, expensive and unnecessary militarization of our southern border, a harsh employment eligibility verification requirement for all employers, and increased criminal bars and penalties that will limit who gets a fair day in court. These provisions should be reexamined as the bill moves through the legislative process. Lessons from past immigration reforms have taught us that if we do not get it right this time, workers and families will continue to suffer the consequences.
Detailed Analyses of
Three of the Bill’s Titles
Title I: Border Security (PDF)