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As Congress contemplates major changes to the
immigration system, advocates and a growing grassroots
movement of immigrant communities have pressed the Senate to
go beyond the House's narrow, punitive-only approach and to
consider "comprehensive" reforms addressing the systemic
inequities of our immigration system. One such inequity is
the continued exclusion of millions of immigrants --
including lawfully present individuals -- from basic
safety-net services and work supports that their tax dollars
fund and that are available to other U.S. residents. In
particular need of reconsideration are the failed policies
underlying the 1996 welfare law, which introduced severe new
restrictions on immigrant eligibility for federally-funded
services, departing from a more inclusive tradition. Over
half of all states chose at their own expense to cover one
or more of the essential services no longer funded by the
federal government, investing in preventive health care, for
example, as a matter of sound public health policy.
However, states have been unable to fill in all of the gaps
created by this historic cost shift, resulting in deep
hardships for immigrant families, including U.S. citizen
children of immigrant parents.
Nevertheless,
the debate over immigration reform has seemed an
inhospitable setting to promote improvements to the rules
excluding immigrants from benefits programs. Advocates for
proposals to offer immigrants who are living and working in
the United States an opportunity to legalize their status
portray undocumented immigrants as exceptionally
hard-working. This positive depiction, strikingly accurate
according to employment data, can be undercut by discussions
of public benefit needs, even with respect to programs that
support workers. Opponents of legalization invariably
highlight the potential costs of offering a pathway to
permanent status, particularly in public benefits
expenditures, even if those costs would not surface for
years and without considering the offsets from the increased
taxes that legalized immigrants with higher earnings would
pay.
In such a setting, proposing
progressive benefits reform has often appeared
counterproductive, and even holding the line on program
rules has posed a challenge. In fact, the legacy of the
broad five-year bar imposed under the 1996 welfare law can
be traced to the last time that the U.S. enacted a major
legalization program. Because of concerns about cost
burdens, undocumented immigrants who secured status under
the Immigration Reform and Control Act of 1986 (IRCA)
generally were barred from major federal public assistance
programs for five years after legalizing.
The risks of proposing a broad
reassessment of benefits rules in this context have seemed
particularly worrisome in the rancorous environment of the
ongoing immigration debate and under the current Congress.
Although major improvements in the laws governing benefits
eligibility are desperately needed, there is also ground
that could be lost.
Understanding this risk, some
advocates cautiously have pressed senators to offer
benefits-related amendments on behalf of special populations
with particularly dire needs, such as a time-limited
extension of Supplemental Security Income (SSI) eligibility
for refugees and other humanitarian immigrants and the
elimination of the five-year bar for victims of domestic
violence and other serious crimes who are otherwise eligible
for immigration relief. Thus far, such efforts have not
been successful.
Misleading
Analysis of Budgetary Impact
Even so,
opponents of legalization have attempted to use the specter
of "runaway" public benefits costs as a tool to undermine
comprehensive immigration reform. Sen. John Kyl (R-AZ),
whose own bill (S 1438) would prevent undocumented
immigrants from obtaining lawful permanent resident status,
said of legalization's impact on Medicaid: "It could be
pretty big, and one of the problems is nobody knows how
big." Sen. Jeff Sessions (R-AL), speaking of legalization
proposals he fiercely opposes, said, "There is no doubt
about it, American taxpayers will pay if this legislation
passes . . . . [I]t will be a drain on our programs." After
referencing a number of public benefits such as Medicaid and
food stamps, a writer in the National Review even
asserted, "Neither Congress nor the Bush administration
seems to realize that when illegal aliens who earn low wages
are transformed into guest-workers or recipients of amnesty
who earn low wages, they will immediately become eligible
for all these government programs" (Jim Boulet Jr., "The
Costs of Amnesty: Who's Got the Bill?," National Review
Online, Mar. 30, 2006).
These claims are difficult to
reconcile with the structure of proposed legalization
programs and how those programs intersect with existing
rules governing immigrant eligibility for public benefits.
For example, the recent Hagel-Martinez compromise proposal
(S 2611, 2612), which modifies the comprehensive immigration
reform bill approved by the Senate Judiciary Committee,
offers its least encumbered pathway to legalization for
undocumented workers who have lived in the U.S. for the past
five years or more. Such individuals would be eligible to
apply for a conditional status and then, after six to eight
years, become eligible to apply for lawful permanent
residence. Once LPR status is granted, they would become
"qualified" immigrants for public benefits purposes.
However, even after obtaining such "qualified" status, they
would be required to wait an additional five years before
becoming eligible to apply for the major federal public
benefits programs. The implications are distressing: the
proposed legalization program combines with existing
benefits rules to create a public policy that would
effectively impose a 16 to 18-year residency requirement
(5 past years and 11 to 13 future years) before which
legalized immigrants become potentially eligible for federal
benefits such as Medicaid. Of course, only a minority of
legalized immigrants would actually become eligible for such
programs so many years from now, since they would also have
to meet all other program criteria (e.g., low-income,
disability, age, and family status). The imposition of such
a lengthy benefits exclusion on persons who have already
established deep roots in the U.S. and who are fully
expected to remain here marks a further departure from our
country's tradition of providing a core safety net for all
citizens and immigrants living in the U.S. permanently.
Segregating one class of persons from essential services
also undermines the much touted goals of integrating
immigrants into communities and will thwart any national
efforts to achieve progress in areas such as health,
nutrition, and economic security.
Even under the restrictive rules
currently in place, comprehensive immigration reform
proposals necessarily would carry some public
benefits-related costs. The Congressional Budget Office (CBO)
is in the process of producing a cost estimate on the Hagel-Martinez
proposal, including costs to the food stamps and Medicaid
programs. However, the bulk of these costs are expected to
flow not from the legalization of undocumented immigrants,
but instead from a reduction in the backlogs of family-based
immigration visas. Because the law would reduce the
heartbreaking delays that prevent reunification of close
family members, it would increase the number of individuals
who would enter the country legally as LPRs. Some of these
individuals eventually would become potentially eligible for
benefits. With respect to the smaller eventual costs
associated with undocumented immigrants who legalize, the
budget rules that CBO uses preclude any consideration of the
increased tax revenues and economic development attributable
to the immigrants' ability to work legally. As immigrants
move into better jobs, they also gain greater access to
private health insurance and other employer-sponsored
benefits.
Proposed
Benefits-related Amendments in the Senate
Prior to the Senate's Easter
recess, over 300 amendments were filed to an
enforcement-only immigration bill (S 2454) offered by
Senate Majority Leader Bill Frist (R-TN). One of those
amendments was the comprehensive immigration reform bill
approved by the Judiciary Committee. The Judiciary
Committee bill, on which the Hagel-Martinez proposal is
layered, will likely continue to anchor the Senate debate.
Although benefits issues generally took a back seat in the
wrangling over amendments, some of the amendments would
affect access to benefits and services. For example:
Sen. Jeff Sessions filed an
amendment (SA 3401) stating that neither undocumented
immigrants granted conditional status through legalization
nor persons granted temporary guest worker status "shall be
granted any public benefit as a result of the changed status
of the alien." It seems unlikely that this amendment will
gain traction or be considered a priority. Federal public
benefits already are generally foreclosed to immigrants who
are not "qualified," and the legalization and guest worker
provisions do not confer "qualified" status.
Sen. John Ensign (R-NV) filed an
amendment (SA 3294) that would prohibit payment of Social
Security benefits based on quarters of coverage during which
an immigrant was not in possession of a Social Security
number authorized for employment. Under current law, a
non–U.S. citizen must be lawfully present (in the U.S.) in
order to collect Social Security. However, as a matter of
basic fairness, lawfully present immigrants can secure
credit for any past quarters in which they actually worked
and paid Social Security taxes. Ensign's proposed
restriction is a rehashed version of earlier attempts to
deny current Social Security payments to lawfully present
immigrants based on past immigration status. In 2003, when
the Senate Finance Committee was considering a similar
proposal, then Social Security Administration (SSA)
Commissioner JoAnne Barnhart wrote a letter noting that "in
a significant number of cases, it could make the
adjudication of applications for benefits much more
difficult and prone to error." Barnhart identified "the
most daunting obstacle" as "the absence of any longitudinal
records of the immigration status of noncitizens who have
been admitted to the United States and who have been
authorized to work." Available records merely reflect the
current status of each immigrant, yet "without the
development and maintenance of historical immigration
records of each noncitizen, SSA would have no ability to
verify information furnished to us when these individuals
apply for benefits." Even in the face of such opposition
from SSA, Ensign's amendment might pose a threat to contend
with. After all, it is estimated that undocumented
immigrants pay over $6 billion in Social Security taxes per
year, propping up an underfunded retirement system. Barring
lawfully present immigrants from securing credit for past
earnings could ensure that the funds remain unclaimed. Some
might view this as an attractive, if desperate, partial
measure towards shoring up Social Security funding.
Amendments by Senators Hillary
Clinton (D-NY) and John Cornyn (R-TX) aim to generate
funding to assist state and local governments in paying for
some of the costs associated with providing services to
immigrants. The amendments touch on a genuine structural
problem in the way in which immigrant services are
financed. Immigrants pay a fair share of taxes; however,
due to restrictions on federally funded public benefits, a
fair share of that money does not flow back to states to pay
for services for immigrants to the same degree as to
citizens. While a more direct solution to this problem
would be to restore immigrant eligibility for public
benefits, the indirect approach of transferring money back
to states deserves consideration. However, the Clinton and
Cornyn amendments, as currently written, have flaws.
Cornyn's amendment (SA 3373) would
impose an additional "health and education" fee on
undocumented immigrants applying for conditional status.
The fee, placed on top of two sequential $1,000 fines as
well as application processing fees, would amount to $500
plus an additional $100 for each spouse or child
accompanying the principal applicant, increasing the total
fees and fines imposed on undocumented applicants for
conditional status to almost $3,000. The fee then would be
placed in an account that "shall remain available to the
Secretary of Health and Human Services, in consultation with
the Secretary of Education, to provide financial assistance
to health care providers for health and educational
services" to conditional immigrants. No details are offered
on key questions, such as how health care providers will be
assisted financially, or why health care providers are
expected to provide both health and education services. The
amendment would impose an identical fee on would-be migrants
applying for guest worker status, although it is not clear
whether that fee substitutes for the existing $500 fee in
the Judiciary Committee bill or constitutes an additional
fee. Another section of the amendment could have more
profound implications for the guest worker program,
preventing many countries from meeting the terms of the
bilateral agreements required between the U.S. and sending
countries. It would require that the guest worker's home
country "provide a minimum level of health care, as
determined by the Secretary of Health and Human Services, to
nationals of the home country who are participating in a
temporary worker program in the United States," without
offering any indication of how a foreign county could, as a
practical matter, provide health care to workers in the
U.S.
Clinton's amendment (SA 3372) is
more promising. As a modification to the Judiciary
Committee bill, it aims to ensure that a portion of the two
$1,000 fines already required of undocumented persons
seeking conditional status and, subsequently, LPR status are
returned to states to pay for health, education, and public
safety services for immigrants. Billions of dollars would
be allocated to states according to a formula that favors
states with large numbers of immigrants and high recent
growth in immigrant population. One weakness of the
proposal is the lack of any clear maintenance-of-effort
requirement: state and local governments seemingly would be
permitted to use the new money as a substitute for existing
spending on services to immigrants rather than providing new
services. In essence, states that already spend money on
immigrant health, education, or public safety services would
be able to shift the money within their budgets. An
additional and related concern is the amendment's failure to
specify which types of health, educational, or public safety
services are permitted. The open-ended structure would
allow the money to be spent on initiatives that could
actually harm immigrants and undermine public safety, such
as state and local enforcement of immigration laws.
Advocates will need to provide
input on these benefits-related amendments and monitor other
implications of immigration reform on access to benefits as
the Senate refocuses its attention on immigration.
By
Jonathan Blazer,
NILC public benefits policy attorney
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