After months of negotiations and delays, the Senate began debate on May 21^st on immigration reform legislation based on a bipartisan compromise reached between several Senators (including Democrats Kennedy (MA), Feinstein (CA), and Salazar (CO) and Republicans Kyl (AZ), Graham (SC), and Martinez (FL)) and the Administration.  While the compromise embraces some of the basic principles of comprehensive immigration reform, including an earned legalization program for undocumented immigrants, S.1348 raises a number of concerns for immigrant advocates because of significant changes it makes to regulate the future flow of immigration.  Below is a summary of the key features of the compromise as well as information on current amendments and the legislative outlook. 

Summary of S.1348

 

Enforcement

 

The legislation establishes a set of enforcement triggers that must be met before the new temporary (non-agricultural) worker programs and second phase of the earned legalization program (described below) may take place.  These triggers include: the hiring of additional border patrol agents, construction and deployment of additional fencing and border security technology, the ending of so-called “catch and release” through increased detentions, full implementation of a new employment eligibility verification system, and the “timely” processing of applications for new “Z” visas (explained below).

 

The legislation assumes (based on assurances from Homeland Security Secretary Michael Chertoff during negotiations) that these measures can be completed within 18 months of enactment of the bill and requires the President to submit a progress report to Congress every 90 days.  In addition to border enforcement, the legislation also provides for greater interior enforcement of immigration laws by stiffening laws and penalties related to gang violence, document fraud, and illegal entry and reentry.  The legislation further details the strengthening of employment verification and employer penalties for non-compliance.

 

Temporary Worker Program

 

S. 1348 would create a new temporary worker program comprised of visas for non-seasonal temporary workers (Y-1), seasonal temporary workers (Y-2A agricultural and Y-2B non-agricultural, formerly H-2A and H-2B), and spouses and minor children (Y-3).  All Y workers must be matched with willing employers before a visa is granted and employers must demonstrate that no U.S. worker could be found for that job and must pay the prevailing wage.  The different visas have different time limits, options for renewal, and numerical caps. Some worker protections are included, but the path to permanent residency is extremely limited and the limits on accompanying family members discourage family unity.

 

 

Restructuring the System

 

Despite the inclusion of a plan to reduce the current family immigration backlog, S.1348 would undermine family reunification and fundamentally alter our nation’s family-based immigration system by eliminating or reducing a number of family categories and replacing them with a new merit-based points system that values highly-skilled workers over family unity.  Details of the new proposal are fairly complicated, but would severely limit future family-based immigration creating a new backlog, further family separation, and likely increase future illegal migration by separated family members.  Under S.1348, all visa applicants as of May 1, 2005 would be part of an 8 year backlog reduction effort. Applicants after May 1, 2005 (including some 800,000 family members of U.S. citizens and lawful permanent residents (LPRs) currently in the system), would forfeit any fees already paid and have to reapply under the new system.

 

The new system would eliminate the family preference categories for unmarried adult children of U.S. citizens, married children of citizens, unmarried children of LPRs, and brothers and sisters of adult citizens. All future applicants from these categories would be subject to the new point system in which points for family ties are extremely limited. In addition it would set a new cap of 40,000 per year for parents of U.S. citizens, set a cap of 87,000 per year for spouses and children of permanent residents, and create a new a new “visitor” visa (100 day limit per year) for parents of U.S. citizens and for spouses and minor children of Y-1 visa holders. The only family category without a cap will be spouses and minor children of U.S. citizens and the eliminated visas will be reallocated to a new merit-based point system that emphasizes job skills, education, and English language ability.  

 

Earned Legalization Program

 

S.1348 provides a process by which undocumented immigrants in the country before January 1, 2007 could eventually earn permanent residency and citizenship. The process would begin with a new “Z” visa program (6 months after the bill is enacted) that would grant temporary legal status and work and travel authorization. Applicants would have to pay significant fines and fees (as much as $9,000 for a family of 4), complete a detailed application form, submit to a background check, and provide evidence of continuous presence, employment or education. The probationary “Z” visa would be good for 4 years and could be renewed indefinitely (for a fee of $1,500 per person) subject to work and English language requirements.  After 8 years (the projected time necessary to clear current backlogs), “Z” visa holders would be eligible to apply for a green card if they meet certain criteria.  Green cards cannot be given to “Z” visa holders until backlogs (family and employment-based) as of May 1, 2005 are cleared.  The principal green card applicant would then have to pay an additional $4,000 fine and return to his/her home country to apply at the U.S. consulate there. 

 

S.1348 also includes the DREAM Act, an earned legalization program for undocumented students, and AgJobs, an earned legalization for undocumented agricultural workers.

 

Amendments

 

Over 100 amendments, both positive and negative, have been filed to S.1348, but it remains to be seen how many will be debated and voted on.  Already there have been votes on 12 amendments. The most positive that has passed is a Feinstein (D-CA) amendment to include the Unaccompanied Alien Child Protection Act (PDF) in the legislation. Some troubling amendments to allow local law enforcement to check immigration status and to strip the legalization program from the bill were defeated.

 

Faith-based and immigrant advocacy groups are now pushing hard for passage of several family-related amendments:

1. A Hagel-Menendez amendment to change the cut-off date for family backlog reduction from May 1, 2005 to January 1, 2007 (to ensure that all petitions before 2007 are included in the backlog reduction – currently some 800,000 applicants are excluded because of the May 2005 cut-off);
2. A Hagel-Clinton amendment to reclassify spouses and minor children of lawful permanent residents as “immediate relatives” and remove them from a harmful cap that has caused lengthy family separation; and 
3. A Dodd-Clinton amendment to increase the cap on visas for parents of U.S. citizens to 90,000 (the current average per year) and to extend the length of the “visitor” visa. 

Additional positive amendments are being negotiated to improve the merit-based system to give more points for family ties, to sunset (automatically end unless extended by new legislation) the new merit-based system after five years, and to improve protections for immigrant victims of domestic violence and human trafficking.  However, additional harmful amendments, including limitations on due process protections for immigrants and on the legalization program, are also likely. 

 

Analysis

 

While far from a perfect bill, S.1348 has at least moved the immigration debate forward in the Senate. The outcome, however, remains uncertain as the compromise is a very fragile one and a number of amendments could sink the deal.  Many agree that it is important for the process to continue to move because if the Senate fails to pass a bill, then the House won’t even consider legislation this year and further action will likely be delayed until AFTER the presidential election. Given the brokenness of our current system, the continuing separation of families, the ongoing ICE raids that are devastating communities, and the harsh anti-immigrant actions being taken by a number of state and local governments, many believe that it is critical to get legislation passed as soon as possible. The remaining question is whether the attempted solution to the problem will be effective or whether it will make the situation worse.

 

Though the current Senate bill offers some much needed hope for a pathway to citizenship for the undocumented, it is an arduous pathway and it comes at the cost of future family immigration. It also fails to offer any opportunity of permanency for new temporary workers, creating a second class of U.S. workers that undermines protections for all workers. Significant improvements, particularly the inclusion of all of the family-related amendments noted above, are still needed before many faith-based and immigrant advocacy groups, including the National Advocacy Center, can consider offering support for the legislation and many may still not do so.  The National Advocacy Center will continue to monitor the debate and offer support for amendments to improve the Senate bill in hope that further improvements can be made in the House should the Senate bill pass.

 

For More Information

 

Q&A on the Senate Bill (PDF)—National Immigration Forum

Section-by-Section Summary of the Senate bill (PDF)—American Immigration Lawyer’s Association

Justice for Immigrants Action Page (brief summary of key amendments)—USCCB