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Senate Judiciary Considers Flawed Bill

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Senate Judiciary Committee Considering Flawed Immigration Reform Bill

Thursday, March 2, 2006

Last week, Sen. Arlen Specter (R-PA) circulated a draft of his long-awaited immigration reform proposal (the Comprehensive Immigration Reform Act of 2006).  The draft will form the basis for Senate Judiciary Committee consideration of immigration reform starting today, and likely continuing with consideration of amendments each Thursday for the next two to three weeks.  Senator Specter is the chair of that committee.

If passed by the Judiciary Committee, the bill will then go to the Senate floor, where Senate Majority Leader Bill Frist (R-TN) has scheduled debate to start on March 27.  This schedule could change, and the bill could look a lot different when it comes out of the Judiciary Committee than it does today.  If passed by the Senate, the bill will likely go to a House-Senate conference committee, where differences between it and the bill passed by the House of Representatives last December, HR 4437 (the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005), will have to be reconciled.  The result may well be a law that incorporates many of HR 4437's egregious provisions.

What is in the bill?

Weighing in at 305 pages, the Specter draft, or "chairman's mark," is a severe disappointment, to say the least, especially since it incorporates many of  HR 4437's more punitive and extreme provisions.  But unlike House Judiciary Committee Chair F. James Sensenbrenner Jr., HR 4437's principal author, Senator Specter has made an effort in his chairman's mark to address the problems with our current immigration system in a manner that goes beyond fences, punishment, and "enforcement" alone.

Unfortunately, however, the Senate bill's proposed temporary worker program and its proposal to create a new status for undocumented immigrants are both deeply flawed.  If adopted, they would create a permanent second class status for many immigrants, encourage exploitation of immigrant workers, and deprive immigrants of rights otherwise taken for granted in the U.S.

Enforcement Provisions

Some nonexhaustive samples of the "enforcement" provisions in the Specter draft include:

  • Increased border control mechanisms without balancing provisions to protect the rights of border communities;

  • More stringent detention provisions, including restoration of policies under which non-U.S. citizens could be detained indefinitely under certain circumstances;

  • Further broadening of the definition of "aggravated felony," which already includes many relatively minor offenses (a conviction for such an offense precludes an immigrant from nearly all forms of immigration relief);

  • New bars to naturalization for lawful permanent residents;

  • Criminalization of immigration status violations (and by making unlawful presence in the U.S. a continuing criminal offense, this provision automatically would enlist state and local law enforcement officers in immigration enforcement);

  • Criminal penalties for "facilitating" illegal entry into the U.S., a formulation that could be interpreted to outlaw the work of many nonprofit agencies, or for "encouraging" an undocumented immigrant to remain in the U.S., a broad new crime that could apply to the family members of undocumented people or other innocent parties;

  • Restrictions making "voluntary departure" (a form of immigration relief that allows immigrants to avoid being ordered removed from the U.S., and the government to avoid the expense of removal proceedings) less available;

  • A massive new mandatory electronic employment eligibility verification system with few safeguards to protect workers from errors, misuse, or privacy lapses; and

  • Restrictions on judicial review that would prevent most immigrants from having their day in court.

Other Provisions

In addition to its enforcement provisions, the Specter draft includes provisions that: Aim to reduce family immigration backlogs; Set up a huge new guest worker program to address the future flow of immigrant workers; and Establish a new "nonimmigrant conditional worker" status for undocumented workers who have lived and worked in the U.S. since Jan. 4, 2004.

Guest Worker Provisions

The guest worker program would permit an unlimited number of individuals to come to the U.S. from abroad to work for 2 terms of up to 3 years each (for a total of 6 years) in types of jobs not covered by other guest worker categories.  This status would not provide any opportunity for the guest worker to adjust to permanent status at the end of the 6-year authorized stay.  A guest worker could leave his or her job during the authorized period of stay, but if the worker could not find another one with an eligible employer within 45 days, the worker would have to return to his or her country of origin.  To be eligible to hire guest workers under this program, an employer would be required to pay a fee and attest that the positions for which it is hiring meet a long list of requirements.  The spouse and children of guest workers under this program would be able to come to the U.S., but would not be allowed to be employed here.  At the end of the second 3-year term, guest workers under this program would be required to return to their home countries for at least 1 year.  The proposal makes no provision for allowing such workers to remain in the U.S. if they put down roots here.

Nonimmigrant Status for Undocumented Workers

The new program for undocumented workers who already live in the U.S. would apply to individuals who were in the U.S. and employed as of Jan. 4, 2004.  They would be eligible to apply for a new "nonimmigrant conditional worker" status that would last indefinitely if they remained continuously employed.  It would permit them to live and work in the U.S. and to be readmitted after traveling abroad.  But their status would be precarious, and they would remain in a conditional status indefinitely, with no route to permanent resident status or U.S. citizenship:

  • All 9 to 11 million undocumented people who would be potentially eligible for this program would be required to apply within the 9-month period between 3 months and 1 year after the provision's enactment.

  • Those who failed to apply during this period would not only lose their right to obtain the new status, but also would  be unable to apply for other forms of relief from removal, such as, for example, the relief that is available for victims of domestic violence.

  • Applicants for nonimmigrant conditional worker status would be required to waive their right to contest any future action brought against them by the government to remove them from the U.S., regardless of the legitimacy of the action (however, if they were to apply for asylum or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, they would be allowed to contest the government's removal action against them).

  • The employers of undocumented people applying for nonimmigrant conditional worker status would be required to submit an affidavit for each such worker attesting to his or her current employment and, to continue employing such workers, would also have to pay a $500 fee for each one.

  • The nonimmigrant conditional worker could not work for just any employer, but would be limited to positions that meet the requirements for hiring guest workers -- such as, for example, that the employer has filed a petition with the U.S. Dept. of Homeland Security and paid a fee, and has attempted to recruit U.S. workers for 90 days prior to hiring the undocumented person.

  • Nonimmigrant conditional workers who lose their job and are unable to find another with this limited pool of employers within 45 days would also lose their nonimmigrant status and be required to leave the U.S.

  • Nonimmigrant conditional workers would not be eligible for any new federal public benefits, and, depending on how the provision is interpreted, they could actually lose access to the few benefits that they now can receive, such as emergency health care, as well as testing for and treatment of communicable diseases.

  • The spouse and children of a nonimmigrant conditional worker would be able to remain in the U.S., but would not be authorized to be employed here.

These requirements arguably would leave undocumented workers and their families even more vulnerable and more subject to exploitation than they are now.  Consider, for example, the impact on undocumented students who have grown up in the U.S.  If they were in school and not working on Jan. 4, 2004, they would not be eligible to remain in the U.S. unless they have a parent or spouse who qualifies for the nonimmigrant conditional worker program.  Even if they do have a qualified parent or spouse, such a student would not be able to be employed legally in the U.S., either now or in the future.  If the spouse or parent subsequently leaves the U.S. or otherwise loses the status, the student would also lose his or her ability to remain.  If, on the other hand, the student was employed in the U.S. as of Jan. 4, 2004, and thus decided to apply for nonimmigrant conditional worker status, to obtain and remain in the status the student would be required to be continuously employed by one of the certified guest worker employers, a requirement that would likely result in his or her having to drop out of school.

Section-by-Section Summary Available

With the assistance of other groups, including NILC, staff from the U.S. Conference of Catholic Bishops have prepared a complete section-by-section summary of the Senate bill (PDF).

Next Steps

As discussed above, the chairman's mark will be considered in the Senate Judiciary Committee starting today.  During this committee markup, Senators are expected to introduce a multitude of amendments, some of which would greatly improve the bill, others that would make it even more punitive.  Among the latter, we can expect amendments containing proposals to build a fence along the U.S.-Mexico border, to coerce state and local police into enforcing civil immigration laws, and many others. Among the former, we can expect amendments to strike or modify many of the most extreme "enforcement" provisions, as well as efforts to rewrite the bill to make it more closely resemble the immigration reform proposal introduced by Senators John McCain (R-AZ) and Ted Kennedy (D-MA), the Secure America and Orderly Immigration Act (S. 1033).  Other improvements such as the DREAM Act may also be offered as amendments.

At this time, the outcome of this debate is far from certain.  It is very possible that a bill very much like the one passed by the House in December (HR 4437)could be enacted by this Congress and signed by the president unless more outrage against such an outcome is expressed in the coming weeks and months.

We will provide updated information as this bill progresses through Congress.