A Way Forward for Immigration Reform
By Sue Weishar, Ph.D.
Finally there appears to be a way for millions of undocumented immigrants in the U.S., the majority of who have lived here for more than ten years and have strong family and community ties, [1] to earn legalization and eventually citizenship. On Wednesday, April 17, 2013, a bi-partisan group of eight U.S. Senators (the “Gang of Eight”), introduced sweeping immigration legislation that, if enacted, will result in substantial reform of our country’s broken U.S. immigration system.
The Gang of Eight’s 844 page bill, titled “Border Security, Economic Opportunity, and Immigration Modernization Act of 2012,” is the product of many compromises from both sides of the aisle. Democrats had insisted on a path to citizenship for undocumented immigrants, but to ensure such a provision they had to agree to Republican demands to “secure the border” first. The bill allocates over $5 billion to meet new border security targets including hiring 3,500 more Customs agents, constructing additional border fencing, and expanding electronic surveillance systems.
Republicans were concerned that if the path to legalization looked too straightforward, critics could dismiss it as “amnesty.” Therefore, Democrats had to agree that undocumented applicants for legalization pay a substantial fine of $2,000-- including $500 upfront. Considerable debate on how to handle future flows of low-skilled workers resulted in the W non-immigrant visa. Although employers will not be required to pay the transportation costs to the U.S. for these workers, W visa holders will not be tied to one employer, their spouses and minors may be admitted and given work authorization, and they will be protected by whistle blower protections in enforcement provisions included in the legislation. W visa workers will also get the chance to apply for legal permanent residency after six years of employment in the U.S.
The proposed legislation gives special consideration to DREAM Act eligible students and agricultural workers by providing simpler and shorter paths to legalization. In a surprising and hopeful development, immigrants without a criminal record who have been deported will be eligible to apply for Registered Provisional Immigrant [RPI] status and rejoin family members in the U.S. Unfortunately deported immigrants who have been prosecuted for the crime of re-entry will not be eligible for this benefit.
In addition to provisions spelling out a legalization program and tying legalization to border security triggers, the proposed legislation:
- requires all employers to eventually use the E-verify system;
- creates a new, merit-based visa program that will offer legal permanent residence based on a point system that would take into account education, employment, family ties, and length of residence in the U.S.; and
- eliminates two family-based visa categories. [2] [After ten years the Senate legislation would result in a shifting of the present weight of family-based visas from 75 percent of the current annual visa total to 50 percent.]
See a summary of the bill’s provisions prepared by the Migration Policy Institute.
Some of the most vocal opponents to the Gang of Eight legislation include three Gulf South U.S. Senators. In a press conference two days after the bill was introduced, Sens. Jeff Sessions (R-AL) and David Vitter (R-LA) condemned the bill, calling it an “immediate amnesty” with just the “promise” of law enforcement. In a press release, Tea Party favorite Senator Ted Cruz (R-TX) complained that the bill lacked clearly defined metrics to measure border security, but did not indicate what such metrics should be. Regardless, poll after poll show widespread support for legalizing undocumented immigrants among voters, including Republicans. In addition to the four Republican leaders who helped to craft the bill, prominent conservative leaders, including Congressman Paul Ryan, Senator Rand Paul, and anti-tax activist Grover Norquist, have shown they want to be part of comprehensive immigration reform efforts.
Political analyst Chris Weigant believes the bill has a good chance of passing in the U.S. Senate. If all Democratic senators, the four Republican members of the Gang of Eight, and just one more Republican senator support the bill, it will have the 60 votes it needs to survive the Senate. The challenge will come in the U.S. House of Representatives. Weigant worries that even if the House manages to pass a bill, Speaker of the House John Boehner could appoint hardliners to the conference committee, thus ensuring no compromise with the Senate is ever reached. Republicans could then take political cover with voters by blaming Democrats for killing immigration reform legislation. Clearly, how Speaker Boehner decides to handle immigration reform will be critical.
The Senate bill is immense and complicated. Several of its provisions require that certain goals or requirements be fulfilled in specified time periods in order to “trigger” the implementation of other provisions. The chart below is an attempt to clarify key dates and time periods for the bill’s provisions having to do with legalization of undocumented immigrants.
| KEY DATE OR TIMELINE | PROVISION |
|---|---|
| December 31, 2011 | To be eligible for Registered Provisional Immigrant (RPI) status, an undocumented immigrant must prove continuous legal status since December 31, 2011. Applicants 21 years and older must pay a filing fee, $500 penalty, and assessed taxes. Deported immigrants can apply for RPI status outside of U.S. if physically present before 12/31/11 and were deported for non-criminal reason AND have U.S. Citizen (USC) or Legal Permanent Resident (LPR) spouse or child. Ineligibility criteria include three misdemeanors or one felony. |
| Up to 6 months after bill enacted | Unauthorized immigrants must wait up to six months for Department of Homeland Security (DHS) to provide Congress with a strategy for increasing border security and a strategy for improving border fencing BEFORE they will be allowed to adjust to RPI. |
| One year | Application period is for only one year after final regulations issued, with the possibility of an 18 month extension. |
| Six years | Initial RPI status is good for six years. RPI status allows for work authorization and permission to travel outside country and return. RPI immigrants are not eligible for any federal means-tested benefit programs and cannot petition family members to join them. RPI status is renewable for another six years upon payment of filing fee and another $500 penalty with proof of regular employment and evidence that applicant’s income/resources are not less than 100% of federal poverty line throughout admission as a RPI. Tax liabilities must be fully paid for RPI status to be renewed. |
| Ten years | If the currently family-based backlog is cleared AND enforcement triggers are met, an RPI immigrant may adjust to Legal Permanent Resident (LPR) status. Requirements include: payment of filing fee and $1,000 penalty; proof of continuous presence; payment of taxes; knowledge of English and U.S. civics; and evidence that average income/resources are not less than 125% of federal poverty line. |
| Three years | After three years as an LPR, RPI immigrant may apply for citizenship. |
| Five years | DREAM Act eligible students can apply immediately for citizenship after five years in RPI status. They do not have to pay a fine to apply for RPI status. There is no upper age limits for DREAM Act eligible applicants. |
| Three years or Five years | Undocumented farm workers (or spouse or children) who have been working in the U.S. for 100 work days in the two-year period ending 12/31/12 can qualify for the Agricultural Card Program after passing background checks and paying fee and $100 fine. They can apply for LPR status after working in agricultural employment for either three years (at least 150 days/year) or five years (at least 100 days/year), show payment of taxes, pass criminal background checks, and pay $400 fine. |
[1] The Pew Hispanic Center estimates 11. 1 million unauthorized immigrants were living in the U.S in 2011. See http://www.hispanicallyspeakingnews.com/latino-daily-news/details/pew-report-a-nation-of-immigrants-a-portrait-of-the-40-million-including-11/21640/ A 2010 analysis of the total unauthorized population at that time (11.2 million) found that 63% had resided in the U.S. for ten or more years and 46% were parents of minor children. About 5.5 million children in 2010 had at least one parent who was an unauthorized immigrant. Of this group of children, about 82 percent (4.5 million) were US citizens by birth and 18 percent (1 million) were unauthorized immigrants themselves. Louisiana was home to approximately 57,808 unauthorized immigrants in 2010, less than 1.4% of the state’s total population. (Nationally, unauthorized immigrants composed 3.7% of the total population in 2010.) See http://onlinelibrary.wiley.com/doi/10.1111/imre.12022/abstract
[2] F3 (Third preference category) for married sons and daughters of U.S. citizens and F4 (Fourth preference category) for siblings of U.S. citizens. F4 will be eliminated 18 months after enactment.