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Policy Update: Immigration Bill Debate Begins in Senate

April 24, 2013 - Posted by Maurice Belanger

On Tuesday, April 16, Senate negotiators who have been meeting for the past several months to draft legislation to reform our immigration system introduced their legislation. The bill, S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act is 844 pages. There are many complex provisions that will be analyzed thoroughly in the coming days. Below are some highlights of the legislation, based on summaries that have begun to circulate.

The Gang of Eight’s Cultural Revolution

The first thing to be said about the bill is that it is written. The group of senate negotiators, four Democrats and four Republicans, found a way to break through Congress’ culture of partisanship and polarization and produce a bill that represents all responsible points of view. It is not perfect, but it is carefully balanced, with everyone giving up some of what they would like. The eight senators appeared at a press conference on April 18 and pledged to hold together as the bill moves through the Senate.

Timeline

In the senators’ press conference, Senator Schumer pledged an open process. He noted the bill had been publicly released, and that by the time a substantive markup begins, everyone will have had three weeks to read the bill and prepare amendments. Senator Leahy, Chair of the Judiciary Committee, has promised an extensive markup. Senator Reid has pledged to take up the bill on the Senate floor in June. Hearings on the bill were held this week in the Senate Judiciary Committee. On April 22, there was a hearing with more than 20 witnesses on four panels. On April 23, there was another hearing with the Secretary of the Department of Homeland Security Janet Napolitano. On April 25, the Committee will begin consideration of the bill, but on that day it is expected only that Senators will make opening statements, and substantive markup will begin the week of May 6, after the Senate returns from a week-long recess.

Legalization

Registered Provisional Immigrant
The bill offers most undocumented immigrants an opportunity to apply for legal status and, through a complicated and lengthy process, eventually obtain citizenship. Undocumented immigrants who were here since December 31, 2011, may apply for registered provisional immigrant status (RPI), which will provide work authorization, legal status and authorized travel abroad and return. The application would include a fee (to be determined), a fine of $500, payment of any taxes owed, and passing a criminal background check. Along with the primary applicant, spouses and unmarried children under age 21 may be included as long as they qualify and were in the U.S. prior to December 31, 2012.

RPI status is valid for six years and can be renewed for an additional six years for an additional penalty of $500 and another to-be-determined application fee. Once the existing green card backlog is cleared, and certain border security and employment verification triggers are met, provisional immigrants may adjust to permanent status, at which time they again must clear another criminal background check and pay an additional $1,000 fine and application fees. An immigrant who adjusts through this process could apply for naturalization after another three years as a permanent resident.

Provisional immigrants adjusting to permanent resident status must meet the same English and U.S. history and government requirements as naturalization applicants, though once they have met these requirements they will not again be tested when applying for citizenship. In the alternative, applicants must show they are “satisfactorily pursuing a course of study” in English and U.S. history and government.

The DREAM Act
A version of the DREAM Act is included in this legislation, allowing existing DACA beneficiaries to immediately obtain RPI status, and others who did not apply or did not qualify under the DACA policy, to apply as well, if they entered the United States before the age of 16. There is no upper age limit for these applicants to apply. Furthermore, after completing the RPI requirements, these DREAMers would qualify for citizenship and permanent residence at the same time; they do not have to wait the additional three years.

Agricultural Workers
The legislation sets up a separate path to legalize agricultural workers. Undocumented agricultural workers may first apply for “blue card” status, if they have performed at least 575 hours or 100 days of agricultural work in the two-year period ending December 31, 2012, and meet other requirements. Applicants must pay a $100 penalty plus a filing fee (to be determined). Persons granted blue card status will be authorized to work and to travel outside the U.S. and be re-admitted.

Blue card holders may adjust to permanent residence no earlier than five years after the date of enactment, if they can show, along with other requirements, that they continued to work in agriculture for 100 work days during each of five years during the eight-year period beginning on the date of enactment, or for 150 work days during each of three years during the five-year period beginning on the date of enactment. When adjusting to permanent status, they must pay a $400 fine, plus application fee. Spouses and children may also be included on the adjustment application.

Legal Immigration

The legislation includes sweeping changes to our legal immigration system.

Merit Visas
The Diversity Visa program will be replaced with a new merit-based immigration system that will be a third path to permanent residence, alongside family-sponsored and employment-based immigrants. Individuals can self-apply, and would qualify based on the number of points they accumulate for, among other things, the ability to speak English, their education, their length of residence in the U.S., family relations in the U.S., and length and type of employment. Initially, 120,000 visas are set aside for merit-based immigrants but that number can fluctuate up to 250,000 in future years based on demand and the U.S. unemployment rate.

Another track of the merit system provides visas to reduce the backlogs in the family- and employment-based immigration systems.

Family-Based Immigration
The family-based immigration system will be changed. The spouses and children of legal permanent residents will become “immediate relatives” (the same as spouses and children of U.S. citizens) and are no longer subject to an annual cap. The minimum number of visas allocated for the remainder of the family preference system (that does not include “immediate relatives”) will be reduced from 226,000 to 161,000. The preference system is changed to eliminate the category of brothers and sisters of U.S. citizens and to set an age cap for the category of married sons and daughters of U.S. citizens. (Only those under the age of 31 at the time a petition is filed will be eligible to gain an immigrant visa through the family preference system.) Changes to the family preference allocations go into effect on the first day of the fiscal year that is at least 18 months after the bill’s enactment.

The per-country ceiling for family-based immigrants will rise from 7 percent to 15 percent.

The waiver for the three- and ten-year bar to admission will be made less onerous for immigrants with close family members in the U.S.

Employment-Based Immigration
The employment visa system will be changed as well. Immigrants who would be included in the current employment first preference category will be exempt from numerical limits. (These include certain immigrants with extraordinary abilities, professors and researchers, certain multinational executives and managers, doctorate degree holders and certain physicians.) Also exempt from numerical limits are certain foreign students who graduate from U.S. universities with advanced degrees and job offers in a STEM field.

Numerically limited employment-based visas allocated in the preference system will go to: members of the professions holding advanced degrees in non-STEM fields or from non-US universities and foreign medical graduates (40 percent); skilled workers, professionals and other workers (40 percent); certain special immigrants (ten percent); and investor/job creation immigrants (ten percent). Restrictions on the “other worker” sub-category are removed (currently, limited to a maximum of 5,000 per year out of the 3rd preference category). A new sixth preference category is created for immigrant entrepreneurs. The cap for this category is 10,000 annually.

The per-country ceiling for employment-based immigrants is eliminated.

Temporary Workers

Temporary Agricultural Workers
Two new agricultural temporary worker “W” visas are created to set up legal immigration channels for agricultural workers in the future. A W-2 worker comes to the U.S. to work for a specific employer under a contract specifying wages and working conditions. A W-3 worker meeting the requirements of the program may work for any “Designated Agricultural Employer” (DAE). The visas provide for a three-year period of admission, renewable for three years, after which time the worker must depart the U.S. for a period of at least three months. A W-2 worker may find employment with another DAE after completion of his or her contract. A W-2 worker is free to move from one employer to another, as long as the employer is a DAE. There are many provisions pertaining to worker protections and requirements for employer participation in the program.

For the first five years of the program, the number of W agricultural worker visas allocated will be 112,333, plus or minus any adjustments for demand, usage, and economic factors that may be made by the Secretary of Agriculture. After the first five years, the cap will be set by the Secretary of Agriculture based on availability of workers in the U.S., demand for agricultural workers and other factors. The current H-2A agricultural worker program will be phased out.

H-1B Nonimmigrant Workers
The H-1B cap would fluctuate between 110,000 and 180,000. For any given year, the exact number would be calculated by a formula set out in the legislation. Exemption from the numerical cap for graduates of U.S. universities would increase from 20,000 to 25,000, but limited to graduates in STEM fields. There are a number of provisions aimed at making sure employers do not use H-1B workers to replace American workers or undercut the wages of American workers. H-1B workers who are terminated by their employer would have 60 days to file for a change, extension, or adjustment of status.

H-2B Nonimmigrant Workers
Provisions are added to the existing H-2B seasonal non-agricultural worker program to protect against abuse by employers. Returning workers are exempt from the numerical cap for this program.

W Nonimmigrant Workers
The legislation creates a new category of nonimmigrant workers who come to perform work in the U.S. in occupations that require little to medium on-the-job training. The visas have a term of three years, and are renewable for three years. Employers seeking these workers must participate in a national registry, where jobs are listed and certified. Overseeing the system will be a new Bureau of Immigration and Labor Market Research, which will be housed at U.S. Citizenship and Immigration Services (USCIS). The annual number of visas allocated will start off at 20,000 for the first year, and rise to 75,000 in the fourth year, after which the new Bureau will determine the annual number of W visas to be allocated. Visas will not be issued for jobs in areas where the unemployment rate is greater than 8.5 percent, though there are exceptions. Special caps apply for construction industries. W applicants would register with an embassy or consulate for a registered job to apply for a visa. Once in the United States, a visa holder may leave his or her job and begin work for another employer in a job that is in the registry. The W workers and employers would be kept track of via a system similar to the one used currently to keep track of foreign students in the United States.

Refugees and Asylees
The legislation removes the one-year filing deadline for filing asylum applications. It expands the categories of family members who may qualify for derivative asylee or refugee status to include the children of the spouses of asylees or refugees and the grandchildren of asylees or refugees. The legislation provides for presidential designation of specifically-defined groups for resettlement in the U.S. The legislation provides new protections for stateless persons under certain circumstances.

The number of U nonimmigrant visas (for victims of or witnesses to criminal activity) is increased from 10,000 annually to 18,000.

Integration

The legislation expands the mission of the Office of Citizenship within USCIS and changes its name to the Office of Citizenship and New Americans. It will be charged with coordinating programs across the federal government that are relevant to immigrant integration. The new office will also provide advice and assistance to state and local governments. A temporary, inter-agency Task Force on New Americans will coordinate among federal agencies to set immigrant integration goals for the government and develop a plan for implementing those goals. A public/private United States Citizenship Foundation will accept donations to augment funding for the work of the Office of Citizenship and New Americans.

The legislation expands exemptions from the citizenship test for certain elderly immigrants.

Border and Interior Enforcement

Triggers
The legislation sets up several border and interior enforcement triggers that must be met before undocumented immigrants may register for RPI status initially or later adjust to permanent residence. Before the registration process may commence, the Secretary of the Department of Homeland Security (DHS) must develop a Comprehensive Southern Border Strategy for maintaining effective control between ports of entry at a 90 percent effectiveness rate. The Secretary must also develop a Southern Border Fencing Strategy to identify where additional fencing should be deployed along the southern border—including double and triple fencing. Once the Secretary submits to Congress a Notice of Commencement of implementation of these two strategies, the registration process may begin for Registered Provisional Immigrant status.

Before Registered Provisional Immigrants may adjust to permanent status, another set of triggers must be met. The Secretary must certify that the Comprehensive Southern Border Security Strategy has been substantially deployed and is substantially operational; the Southern Border Fencing Strategy has been substantially completed; the E-verify electronic work authorization system has been implemented; and an electronic exit system is in use at air and sea ports of entry.

There are exceptions to the triggers for Agricultural workers and DREAM Act eligible immigrants. Other exceptions are provided for in specific circumstances.

Border Security
The legislation allocates more resources for border enforcement. Customs and Border Protection (CBP) must hire 3,500 more officers by the end of the 2017 fiscal year. $50 million are allocated annually through fiscal year 2018 for Operation Streamline in the Tucson border sector. (This initiative criminally prosecutes persons for illegally crossing the border.) $50 million are allocated annually through fiscal year 2018 for Operation Stonegarden, which gives grants to local law enforcement entities along the border. $3 billion is allocated to carry out the Comprehensive Southern Border Strategy, and $1.5 billion is allocated for border fencing. The State Criminal Alien Assistance Program (in which states are reimbursed for the detention costs of undocumented immigrants who have committed crimes) is allocated $950 million through fiscal year 2015. The bill authorizes CBP personnel to have immediate access to federal lands within 100 miles of the border in Arizona.

The bill also contains a number of provisions to remedy or mitigate problems related to federal agent misconduct. Training is required for CBP officers, Border Patrol agents and Immigration and Customs Enforcement (ICE) officers to cover, among other things, civil, human, constitutional and privacy rights. There is a provision to establish a Border Oversight Task Force that will make recommendations on border enforcement policies and their impact on border communities. There is also a provision for more training of border community liaison officers. There is a provision to expand the mission of the USCIS Ombudsman’s office and change its name to the Department of Homeland Security Immigration Ombudsman, which will be charged with monitoring CBP and ICE as well as USCIS.

Electronic Worker Verification System
The legislation establishes an electronic worker verification system, and mandates its use by all employers, phased in over time. Federal agencies must begin using the system upon enactment of the legislation (if already using E-Verify) or within 90 days. Employers with more than 5,000 employees will be required to start using the system for new hires and for employees with expiring work authorization within two years after publication of regulations. Employers with more than 500 employees will be required to use the system for such employees within three years. All employers will have to use the system within four years of the publication of regulations for their new hires or for those with expiring work authorization.

The 134-page section of the bill dealing with the work authorization system contains a number of provisions specifying documents that may be used to establish identity and authorization to work; procedures to contest an erroneous finding of the system; and enhanced penalties on employers who fail to use the system or who abuse the system.

The legislation specifies that state laws relating to employment authorization are pre-empted, except in the case of state and local authority over business licensing.

The bill authorizes $1 billion for an Interior Enforcement Account. It requires at least an additional 5,000 ICE and USCIS positions within five years, to monitor the electronic verification system and to enforce compliance.

Other Enforcement Measures
The legislation provides for a mandatory exit data system for noncitizens leaving by air or sea ports of entry. New grounds of inadmissibility and removal are created for: gang participation; three or more convictions related to drinking and driving; and domestic violence. Penalties are increased for illegal entry and re-entry.

Protections for Immigrants and Detention Reform
The legislation prohibits federal law enforcement from profiling on the basis of race or ethnicity. It requires appointed counsel to represent unaccompanied minors and persons with serious mental disabilities, as well as other vulnerable groups when necessary. Legal Orientation Programs must be made available to all immigration detainees within five days of initial detention.

There are a number of anti-trafficking provisions that aim to protect workers who are recruited from abroad by labor contractors. There are provisions to fight immigration service fraud.

There are a number of provisions requiring greater reliance on secure alternatives to detention and providing for bond hearings and redetermination hearings. Provisions in the bill require detention facility compliance with detention standards, and provide for penalties for facilities that fail to meet those standards.

The Right Moment

As with so many issues, politicians are catching up with the public. Introduction of this legislation comes in the wake of several public opinion polls that have shown broad public support for immigration reform that provides an opportunity for undocumented immigrants to become legal.


  • Gallup Poll (April 9, 10): "Suppose that on Election Day you could vote on key issues as well as candidates. Would you vote for or against a law that would allow illegal immigrants living in the United States the chance to become U.S. citizens if they meet certain requirements?" (Would vote for: 69%)

  • CNN/ORC International Poll (April 5-7): Allowing undocumented workers to stay in the United States and apply for citizenship if they have been in the country for several years, have a job, and pay back taxes is supported by 84% of the public.

  • NBC News/Wall Street Journal Poll (April 5 – 8): "As you may know, there is a proposal to create a pathway to citizenship that would allow foreigners who have jobs but are staying illegally in the United States the opportunity to eventually become legal American citizens. Do you strongly favor, somewhat favor, somewhat oppose, or strongly oppose this proposal?" (Total favor: 64%)

  • Quinnipiac University Poll (March 25 – April 1): "Which comes closest to your view about illegal immigrants who are currently living in the United States? (A) They should be allowed to stay in the United States and to eventually apply for U.S. citizenship. (B) They should be allowed to remain in the United States, but not be allowed to apply for U.S. citizenship. (C) They should be required to leave the U.S." (Stay and apply for citizenship: 59%; stay but not allowed citizenship: 11%).

  • ABC News/Washington Post Poll (March 27 – 30): "Overall, do you support or oppose a path to citizenship for illegal immigrants?" (Support: 57%)

  • Main Street Alliance (of small business owners, March 14 – 25): “As Congress works to set up an immigration process for future immigrant workers, do you think this process should include a roadmap to citizenship, or should it be a temporary guest worker program with no roadmap to citizenship?” (Favor citizenship: 61%)

  • Small Business Majority (of small business owners, March 4 – 10): “We would be better off if people who are in the country illegally became legal taxpayers, so they pay their fair share and can work toward citizenship in the future.” (Agree much or somewhat: 74%)

  • Fox News (February 25 – 27): "Do you favor or oppose allowing illegal immigrants to remain in the country and eventually qualify for U.S. citizenship, as long as they meet certain requirements like paying back taxes, learning English, and passing a background check?" (Favor: 72%)


In addition to these broad surveys about how the public feels about immigration reform, there is unprecedented activity among many constituencies in support of immigration reform. For example, on the day the Senate bill was introduced, dozens of evangelical leaders were in Washington to press Congress to tackle immigration reform. There is a big uptick in conservative support for reform legislation.

Still, the bill faces many challenges in the Senate. The debate will play out over the next two months.


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