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Senate Approves Sweeping Immigration Bill

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Senate Judiciary Committee Approves Sweeping Immigration Bill

March 30, 2006

BACKGROUND

On Monday, March 27, 2006, the Senate Judiciary Committee completed the markup of Chairman Arlen Specter’s (R-PA) proposed immigration legislation (the chairman’s mark) entitled the “Comprehensive Immigration Reform Act of 2006.”

The bill’s highlights include: a pathway to legalization for the millions of undocumented immigrants in the U.S.; reduction of the family immigration backlog, a temporary worker program; the DREAM Act which would allow undocumented students who have grown up in this country a pathway to legal status so that they can complete their education and get on with their lives; and a modified version of the AgJOBS bill which would provide legal status for certain agricultural workers.  Significantly, the Judiciary Committee bill eliminated a provision in the chairman’s mark that would make being in unlawful status a crime, and it provided a humanitarian exception for provisions that would penalize some assistance to undocumented immigrants.

However, the Judiciary Committee bill includes many harsh enforcement provisions that are of great concern to immigrants.  Some were part of the original Specter bill.  Others were added by amendments offered in committee.

The legalization and temporary worker provisions in the Judiciary Committee bill were elements of the Secure America and Orderly Immigration Act (SAOIA) (S. 1033) introduced in 2005 by Senators John McCain (R-AZ) and Ted Kennedy (D-MA).  These provisions, while a step forward in comprehensive immigration reform, retain flaws we described when the bill was first introduced.  See An Analysis of the Secure America and Orderly Immigration Act of 2005 (PDF).

Approval of the Judiciary Committee bill came on the heels of massive public demonstrations across the country calling for legalization of undocumented immigrants and denouncing punitive enforcement-only bills such as H.R. 4437, passed by the House of Representatives in December 2005.  In the past few weeks, almost a million immigrants and their allies have held marches in Milwaukee, Tennessee, Chicago, Denver, Los Angeles and elsewhere.  In Los Angeles alone, at least 500,000 people marched through the streets of downtown.   These expressions of community sentiment appear to have played a pivotal role in shifting the Senate debate.

The Judiciary Committee’s swift completion of a bill followed a threat by Senate Majority Leader Bill Frist (R-TN) that he would invoke a rarely used parliamentary procedure to bypass the committee and bring his own punitive enforcement-only bill to the Senate floor if the committee was unable to complete its work by Monday, March 27th.  Although the deadline had not yet expired, Sen. Frist took pre-emptive action and introduced his enforcement-only bill on March 16.  The Frist bill, “Securing America’s Borders Act” (S. 2454), contains many punitive provisions from the chairman’s mark, as well as some added sections addressing highly skilled immigrants and limitations on judicial review.  However, the bill does not provide any legal immigration reforms, such as a path to legal status, reductions of the family immigration backlog, or any kind of a temporary worker program.

Debate on immigration reform has now begun in the Senate.  By agreement with the Senate leadership, the Judiciary Committee bill has been offered as a substitute for the Frist bill.  Motions to limit debate on both bills will be filed next week, as well as amendments to improve the bills or make them even more punitive.  At least 60 senators must vote to limit debate.  If neither bill achieves this vote, then Senate action on immigration reform will be at a stalemate.

LEGALIZATION PROVISIONS

The bill passed by the Senate Judiciary Committee included the earned legalization provisions within Title VII of the Secure America and Orderly Immigration Act.   Under SAOIA, undocumented immigrants who were working in the U.S. on January 7, 2004 could qualify for temporary lawful status for 6 years if they pay a $1,000 fine and fees, have complied with tax filing requirements, have not committed certain crimes, and understand or are studying English, U.S. civics and history.  After the 6-year period, applicants who have worked or studied continuously and meet the other requirements of the bill would be able to adjust to lawful permanent resident (LPR) status after payment of a second $1,000 fine and additional application fees.

TEMPORARY WORKER PROVISIONS

The Committee’s bill also includes a temporary worker program that is based on Title III of the Secure America and Orderly Immigration Act.  Foreign workers would be allowed to enter the U.S. and fill available jobs that require few or no skills so long as the applicant demonstrates that he/she has a job waiting in the U.S., pays a $500 fee and application fees and meets security, medical and other conditions.  The guest worker visa would be valid for three (3) years, the visa can be renewed for an additional three years, and after four years the worker could apply to adjust his/her status to LPR status.

ADJUSTMENT OF STATUS FOR AGRICULTURAL WORKERS

The Comprehensive Immigration Reform Act of 2006 would also create a pilot program to allow some undocumented farmworkers to earn adjustment to LPR status. The program was created out of a compromise between advocates for farmworkers and the agriculture industry that resulted in the AgJOBS bill.  It would allow undocumented farmworkers who worked in agriculture at least 150 days within the previous two years before December 31, 2005 to apply for a “blue card.”  If they work an additional 150 work days per year for 3 years, or 100 work days per year for five years, they can apply for lawful permanent resident status.  They must pay a fine of $500, show they are current on their taxes, and that they have not been convicted of certain crimes.  They can also do non-agricultural work during this period.

BACKLOG REDUCTION

The bill includes measures to reduce immigration backlogs.  Immediate relatives (spouses, children and parents) of U.S. citizens would no longer be counted against the worldwide limit of available visas, and those visas would be made available for other family categories.  The number of visas for employment-based visas would be more than doubled.  The children and spouse of a U.S. citizen who have applied for an immigrant visa would be allowed to continue with their application if the citizen dies before the visa is issued.

DREAM ACT

Also included in the bill is the DREAM Act (S. 2075), which would allow immigrant students who have grown up in the U.S., graduated from high school here, and can demonstrate good moral character to initially qualify for “conditional lawful permanent resident” status, which normally would last for six years. During the conditional period, the immigrant would be required to graduate from a 2-year college, attend 2 years towards a 4-year degree, or serve for 2 years in the military. At the end of the conditional period, those who meet at least one of these requirements would be eligible to adjust to LPR status and could apply for citizenship without any further delay.  The bill would also eliminate a federal provision that discourages states from providing in-state tuition without regard to immigration status.

PUNITIVE ENFORCEMENT PROVISIONS

The bill reported out of the Judiciary Committee contains many harsh and punitive enforcement provisions, including provisions that would:

  • Make expedited removal (removal without a chance to have an immigration judge hear the case) mandatory for individuals (except for Mexicans and Cubans) detained within 100 miles of the border and within two weeks after entry;

  • Require mandatory detention of individuals (except for Mexicans and Cubans) caught at a port of entry or land or international land or maritime borders;

  • Make detention more likely by increasing detention space;

  • Vastly expand the number of border patrol agents and further militarize the border without providing the protections needed to hold the government accountable for civil and human rights violations;

  • Overrule Supreme Court decisions on indefinite detention and allow the Department of Homeland Security (DHS) to detain immigrants indefinitely, even when they have not committed a criminal offense and there is no reasonable chance of removal to their home country;

  • Limit courts’ ability to halt (enjoin) government violation of immigrants’ constitutional and statutory rights;

  • Make voluntary departure rules harsher;

  • Greatly expand the definition of passport, visa and immigration fraud crimes in order to criminalize acts such as the omission of information (rather than provision of false information) on immigration-related documents;

  • Bar persons from adjusting status if they admit (conviction not required) a document fraud offense; even a person who has US citizen or lawful permanent resident family members will be inadmissible, if she admits completing an I-9 form with a false Social Security Number to get a job;

  • Increase the penalties for failing to file notice of change of address;

  • Assert that states have “inherent authority” to enforce federal criminal immigration laws;

  • Authorize the entry of a wide range of civil immigration records into the federal National Criminal Information Center criminal database;

  • Expand local agency enforcement of federal immigration law by mandating that DHS reach out to states to enter into a memorandum of understanding to enforce federal immigration law (but without requiring states to enter into those agreements);

  • Unreasonably expand the definition of aggravated felony, which will make even more immigrants deportable and permanently ineligible for legal status;

  • Broaden the definition of “smuggling,” and include in the definition actions taken outside the U.S.;

  • Expand the “smuggling” forfeiture provision to apply to any property; a person who invited an undocumented relative to her house might lose her house

  • Impose immigration penalties on US citizens and LPRs by limiting their rights to petition for their relatives, if the citizens or LPRs have committed certain crimes;

  • Make the Basic Pilot employment eligibility verification program mandatory for all employers despite longstanding problems with inaccuracy of records, lack of privacy protections, and misuse by employers;

  • Greatly restrict the documents that individuals may use to prove identity and work authorization when applying for work; as a result, many citizens and immigrants will be unable to prove their eligibility to work;

  • Use Social Security Administration no-match letters to enforce immigration laws, despite the fact that such letters are often inaccurate, affect work authorized individuals, and lead to wrongful firing and retaliation by employers.

IMPROVEMENTS MADE DURING JUDICIARY COMMITTEE CONSIDERATION OF THE CHAIRMAN’S MARK

During Judiciary Committee consideration, some important improvements were made to the Specter mark by amendments or other action:

  • The provision making unlawful presence a misdemeanor was removed.

  • The humanitarian exception to the provisions making assistance to immigrants a crime of smuggling was broadened to cover non-emergency medical care, counseling, victim services and housing.

  • Refugees, asylees, and certain vulnerable populations would have limited protection from prosecution for the wide range of document fraud provisions.

  • Some of the retroactive application of punitive provisions was eliminated.

  • Limited judicial review of naturalization decisions and delays under current law was retained

  • Title VII of the Specter mark, which would limit all immigration appeals to the Federal Circuit Court of Appeals, and permit such appeals to proceed only in cases where a judge issues a certificate of reviewability within 60 days, in effect preventing most immigrants from appealing adverse immigration decisions.  This title was pulled from the bill by Sen. Specter.  A hearing on the issue will be held in the Judiciary Committee on April 3, and some version of the provision is expected to be offered as an amendment on the Senate floor.

CONCLUSION

The future course of this legislation remains utterly unpredictable.  It could be improved or significantly weakened over the next week, changing the significance of procedural votes and even of the vote about final passage.  Although we recognize that the Comprehensive Immigration Reform Act represents a serious effort to make needed reforms in our immigration system, the National Immigration Law Center cannot support this legislation in its current form because of its punitive provisions.

But regardless of how the debate unfolds, it is imperative for all Senators to hear from the pro-immigrant side of the debate to balance the messages that they are receiving.  Please contact your Senators each day while the debate continues to express your strong support for a path to legalization and reductions in the family immigration backlog, and your opposition to punitive anti-immigrant “enforcement” provisions.

—Joan Friedland, former Immigration Policy Attorney and Monica Guizar, former Employment Policy Attorney