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Democrats Unveil “Conceptual Proposal” for Immigration Reform

April 30, 2010 - Posted by Maurice Belanger

(To read this in Spanish, click here.)

On Thursday, Senate Majority Leader Harry Reid, along with Assistant Senate Majority Leader Dick Durbin, Senate Judiciary Committee Chair Patrick Leahy, Immigration Subcommittee Chair Chuck Schumer, and Senators Dianne Feinstein and Bob Menendez held a press conference to release a "Conceptual Proposal for Immigration Reform."

For months, Senators Schumer and Lindsey Graham (R-SC) have been in discussions about the contents of an immigration reform bill.  In the past couple of weeks, Senator Graham has backed away from support of immigration reform, insisting that climate change legislation, something he has also been working on (with Senators Kerry and Lieberman), come up first in the Senate.

With the clock ticking on this Congressional session, Democrats decided to release their framework, containing ideas from the bipartisan discussions, and invite other Republican partners without waiting for time to expire.

The ideas contained in the proposal are a starting point for a bill that is meant to get through the Senate.  That means, of course, that it has to be clear about how immigration laws will be enforced in the future.  The rules are proposed to be enforced, however, in the context of a generous program to bring undocumented immigrants out of the shadows and to reform the family- and employment- based immigration systems to eliminate backlogs, to reduce future bottlenecks, and to create more legal channels for immigrant workers.

Treatment of Undocumented Immigrants: The proposal would allow the 11 million undocumented immigrants now living in fear of deportation to begin a process that will result in legal status and a normal life without fear of being torn from their family.  Undocumented immigrants present in the U.S. from the date the bill is introduced will be eligible for an initial registration program that, assuming no problems are uncovered during a security screening process, will give them provisional status with work authorization and ability to travel abroad.  The registration period begins without regard to enforcement triggers mentioned in another part of the proposal (we'll get to that later).  AgJOBs and the DREAM Act are included.

Once the family backlogs are clear, assumed to be eight years, legalizing immigrants will be able to petition for permanent resident status.  Eligibility will be determined by criteria similar to what has been included in previous reform bills—acquiring English language skills, passing criminal background and security checks, and paying taxes.

Spouses and minor children of persons who have gained provisional status would be eligible to join their legalized family member.

This proposal gives immigrants who have been living in the U.S. in Temporary Protected Status, and who have always worried that the time would come when they had to leave the U.S., would be able to apply for legalization.

Family Immigration:  The proposal would clear backlogs in the family immigration system over a period of eight years.  It does not specify how that will be done.  In the future, spouses and minor children of permanent residents will be treated as "immediate relatives," putting them in the same category as spouses and minor children of U.S. citizens.  The remainder of the family preference categories will fall under the same overall numerical cap, except that the per-country ceiling will be raised from 7 to 10 percent of total admissions.

In other words, the proposal aims to eliminate current backlogs that have kept family members separated for years, and it makes changes that should reduce the likelihood that major backlogs will develop in the future.

The proposal would also allow the permanent partners of U.S. citizens and lawful permanent residents to obtain immigrant visas, and for refugees and asylees it would eliminate the one-year gap between the grant of refugee or asylee status and application for permanent residence, thus eliminating duplication and speeding integration.

As mentioned above, spouses and minor children of persons who have gained provisional status would be eligible to join their legalized family member.

Immigrant Workers:  The proposal for the first time provides a meaningful number of visas for lower-skilled immigrants who will be able to come on a special temporary, three-year visa for non-seasonal, non-agricultural workers.  Workers who wish to become permanent residents may change their status if they meet certain "integration metrics."  Otherwise, this visa is renewable once.  The number of visas available will adjust up and down depending on what is happening in the economy.  It is the lack of visas available for these workers in the current system (just 5,000 per year) that has been the main driver of illegal immigration.

Current temporary worker programs will have strengthened worker protections, and the agricultural worker program (H-2A) will be reformed in accordance with the agreement between farm worker advocates and farmers enshrined in AgJOBS. 

The proposal also increases opportunities for high-skilled immigrants to become permanent residents by, among other things, offering permanent residence to foreign students who graduate from U.S. universities and eliminating per-country visa caps for employment-based immigrants.

Enforcement:  The proposal starts off with a discussion of "triggers" that must be met during the eight years that legalizing immigrants are in provisional status before they adjust to permanent status.  The triggers include an increase in the Border Patrol, ICE worksite enforcement inspectors, technology and infrastructure on the border, increased immigration court resources, and other items.  There are no specifics (number of Border Patrol agents, etc.) included in the proposal.

Outside of the "triggers" section, more Border Patrol personnel, equipment, and infrastructure are provided for, as will as more resources and personnel at ports of entry.  The US-VISIT exit/entry tracking program will be expanded to all ports of entry.

Penalties are increased for various violations of immigration law.

Enforcement Accountability:  In addition to a listing of more resources, there are provisions to increase accountability of personnel deployed on the border.  For example Customs and Border Protection officers will receive training on avoiding racial profiling and how to deal with vulnerable populations, including children and victims of trafficking.  States will be prohibited from enacting their own immigration rules.  A Border Communities Liaison Office will be established, responsible for conducting outreach to community members and for implementing a standardized complaint process.

The proposal would require minimum standards of detention, both for government-run and privately-owned detention facilities.  It would require the government to, prior to transferring a detainee, wait until arrangements have been made for a detainee's children, and to give "due consideration" to the best interests of a child in decisions relation to detention or transfer.  It strengthens protections for children and certain vulnerable populations.

The proposal would provide incentives for victims of labor law violations to cooperate with law enforcement.  The proposal does not eliminate the controversial 287(g) program, but it would require jurisdictions participating in it to collect and maintain data that will help determine whether they are in compliance with the law.

Biometric Social Security Card:  The bulk of the proposal is devoted to describing a new method of employment verification that involves a Social Security card with a biometric identifier.  Senator Schumer, who Chairs the Immigration Subcommittee, has been a promoter of biometric identifiers to reduce unauthorized employment. 

The card will contain a photograph and another biometric identifier, and will be able to identify the individual without an employer having to access a central database (though work authorization would be verified by on-line database).  The identifiers would not be stored in a central database.  Use of the card for purposes other than employment authorization would be prohibited.  Individuals would have various remedies, including court remedies, should they be wrongly denied work authorization due to faulty data.  Various protections would be put in place for misuse of the system.

Within five years after the date of enactment, the new biometric Social Security card will be the only document accepted to prove work authorization.  Penalties would be increased on employers who hire someone not authorized to work.

The proposal would require the establishment of a national birth and death registration system.

More Information:  The above was a brief sketch of the proposal.  You can find more detailed information in the following materials:

  • The American Immigration Lawyers Association (AILA) has posted this summary on their Web site.

  • AILA has also posted the proposal (Real Enforcement with Practical Answers for Immigration Reform, or REPAIR) on its Web site here.

  • The reaction of Reform Immigration FOR America can be found here.

What's Next?  The proposal is not a bill.  It contains ideas that could be included in a bi-partisan bill, and it is an invitation for Republicans to join the conversation.  At some point, Republicans are going to have to do more than refuse to do anything.  We also need the President to step up and lead on this issue.  We are in an environment where getting anything done is not going to be easy.  But there is still time, and if Congress can summon the will, they can certainly pass immigration reform.  Pressure to act is getting more intense, and it will be stepped up on May 1st.

Outside of Congress, many will take issue with the proposal as it was introduced.  There is certainly plenty of room for improvement.  However, any bill that might move through the Senate and get the 60 votes required to pass will necessarily contain controversial elements.  If this proposal becomes legislation, it will represent the best chance for taking care of the urgent matter of relieving the fear of deportation and family separation that will only grow in the years to come if Congress fails to pass immigration reform this year.

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