Solving the Unauthorized Migrant Problem: Proposed Legislation in the U.S.

Both the size of the United States' unauthorized population and the inability of the immigration system to adequately handle influxes have returned comprehensive immigration reform to the national debate. Several legislative proposals are pending before the 109th Congress.

These bills recognize the size of the unauthorized population, but each proposal advocates a different method for reducing it, including in some cases by trying to anticipate and accommodate further flows through guest worker programs.

The two leading proposals are the "Secure America and Orderly Immigration Act" (S. 1033/ H.R. 2330), a bipartisan, bicameral bill introduced by Senators John McCain (R-AZ) and Ted Kennedy (D-MA), and concurrently by Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL); and the "Comprehensive Enforcement and Immigration Reform Act" (S. 1438), sponsored by Senators John Cornyn (R-TX) and Jon Kyl (R-AZ). The "Secure America and Orderly Immigration Act" also enjoys the sponsorship of Senators Sam Brownback (R-KS), Joe Lieberman (D-CT), Lindsey Graham (R-SC), and Ken Salazar (D-CO) as well as 15 additional House co-sponsors.

Both of these proposals have, to varying degrees, embraced the "three-legged stool" approach established by the Immigration Reform and Control Act (IRCA) of 1986: enforcement, employer sanctions, and legalization.

Two other comprehensive immigration reform bills have been introduced in the House: the "REAL GUEST Act" (H.R. 3333) by Representative Tom Tancredo (R-CO) with two co-sponsors and the "Save America Comprehensive Immigration Act" (H.R. 2092) by Representative Sheila Jackson-Lee (D-TX) with 21 co-sponsors. Jackson-Lee supports the Kennedy-McCain bill and views her legislation as a complementary bill that addresses specific issues.

Below is a comparison of each piece of legislation on four areas: enforcement, employer sanctions, legalization, and guest worker programs.

For an expanded comparison, please download the side-by-side chart (PDF).

Enforcement

The authors of each bill have addressed the public desire for stronger immigration enforcement in various ways.

The Cornyn-Kyl bill puts forward a robust and detailed plan for increased border and interior enforcement. The bill would

• authorize appropriations for the acquisition of technology and hiring of Border Patrol agents, Department of Homeland Security (DHS) investigators, Customs and Border Protection (CBP) inspectors, and both DHS and the Department of Justice (DOJ) attorneys.
• expand the use of expedited removal to all sectors of the U.S.-Mexico border and would increase the detention capacity for Immigration and Customs Enforcement (ICE).
• clarify the "inherent right" of states and municipalities to assist in the enforcement of federal immigration law, and would prohibit policies that prevent law enforcement officers from sharing information on immigration status with DHS.

The Tancredo bill also emphasizes enforcement. It would

• increase the number of CBP officers, ICE attorneys, fraud investigators, and detention and removal officers.
• allow for the military to be deployed to support the border patrol.
• clarify that state and local law enforcement officers may assist in the enforcement of federal immigration law.
• make entry without inspection and unauthorized presence in the United States felony offenses.

The Kennedy-McCain bill gives DHS more latitude in designing the measures it sees as necessary for effective border control. The bill would

• call on the department to design and implement a strategy for control of the southern border.
• mandate increases in personnel and technology, and would authorize the necessary appropriations, but not in any specific amount.
• require DHS to develop and coordinate a plan of action with state, local, and tribal authorities to combat human smuggling, though it does not vest local or state authorities with an expansion of powers to enforce immigration law.
• call for DHS to work in concert with other North American governments to secure their external borders.
• require the U.S. to provide technical assistance to Mexico for the screening of third-country nationals and to help Mexico secure its southern border.

The Jackson-Lee bill does not focus strongly on enforcement, but it would increase by 5,000 the number of CBP inspectors over the next five years, and would allow state and local government to determine whether or not to participate in immigration law enforcement.

Employer Sanctions

In response to President Bush's (unspecified) request for stronger employer sanctions against those who continue to employ unauthorized immigrants, each bill's authors have crafted new ways to penalize such employers.

In regards to employer sanctions, both McCain-Kennedy and Cornyn-Kyl would create a series of similar mechanisms for enforcing employer violations of labor laws. These bills would

• require that employers participate in an electronic system for work authorization verification.
• require a reduction in the number of documents currently acceptable to prove authorization and the issuance of secure, tamper-resistant cards with biometric identifiers for use as visas.
• double the upper and lower bounds defining the range of fines employers could be charged for different types of IRCA violations.

The Tancredo bill would also require a work authorization system and would provide more severe penalties for employers who violate labor laws. Specifically, the bill would replace penalty ranges with flat fees set at more than double the current maximum amounts.

In contrast, the Jackson-Lee bill focuses primarily on the adverse impacts on minority native-born employees, encouraging employers to make attempts to advertise and contract American minority employees. It also establishes immigration status-related intimidation as an unfair labor practice.

Opportunities for Unauthorized Immigrants

The greatest variation among the legislative proposals is their approach to the current unauthorized population. While the Jackson-Lee and Kennedy-McCain bills would offer ways for the currently unauthorized to achieve legal status, the Cornyn-Kyl bill only would provide the opportunity to accept Deferred Mandatory Departure status (with no chance for permanent adjustment of status), and the Tancredo bill would offer no program at all for unauthorized immigrants.

The Cornyn-Kyl bill would

• allow qualified unauthorized migrants to remain legally in the United States for up to five years by accepting Deferred Mandatory Departure status. (The mandatory departure scheme creates incentives for migrants to leave in fewer than five years by levying a progressively increasing fine for each year a migrant remains in the United States, beginning two years after the bill's enactment.)
• not permit migrants to adjust to legal permanent resident status at the end of their Deferred Departure period, but they may leave the United States and apply for immigrant or non-immigrant admission without penalty.
• cause migrants to lose a year of guest-worker eligibility for each year spent in Deferred Departure status.

The Kennedy-McCain proposal seeks to implement "earned legalization," in which unauthorized migrants would

• apply for an H-5B visa, which would be valid for three years and renewable once.
• demonstrate that they had been working without authorization in the United States on May 12, 2005; paid taxes; and had satisfactorily completed a criminal and security background check. They would also need to be studying English, as well as U.S. civics and history, at the time of application.
• be assessed a $1,000 penalty and would have to pay application fees.
• adjust to legal permanent resident status after holding an H-5B visa for six years and paying a second $1,000 fine.

Similarly, the Jackson-Lee bill would

• grant earned legalization to immigrants who have resided in the U.S. for five years, who demonstrate knowledge of English, who have no criminal convictions, and who complete 40 hours of community service.
• update the Immigration and Nationality Act (INA) registry date from 1972 to 1986, allowing unauthorized migrants who have resided in the United States since that date to adjust to legal permanent resident status.

Guest Worker Programs

While the Jackson-Lee bill does not consider formal guest worker programs, the other bills each contain a provision to deal with the flow of foreign temporary workers to the United States.

Types of visa

The Cornyn-Kyl bill would

• create a class of guest worker visa (W) that would be effective for a period of two years. The visa could be renewed twice—for a total of six years—but renewal would only come after a one year interlude spent outside the country. (W visa holders who work in the U.S. for less than six months as seasonal agricultural workers would not have to satisfy this requirement and neither would those who commute to the U.S. and maintain a residence in their country of origin.)
• not create an automatic path to permanent residency through the W-visa, but W-visa holders would be able to adjust to legal permanent resident status through extant legal channels, such as the existing family reunification, diversity lottery, and employment immigration programs.

The Kennedy-McCain bill would

• create the H-5A visa, which would be valid for a period of three years and renewable once, with no waiting period between renewals.
• allow an adjustment of status at the end of four years — through self-petitioning or at any point through the sponsorship of the employer.

In contrast, the Tancredo bill would eliminate all current H visa categories and replace them with a single H category that would give H-visa holders 365 days over a two-year period, subject to renewal. H-visa holders would not be eligible to adjust to LPR status under any circumstances.

Portability of visas

The Cornyn-Kyl and Kennedy-McCain bills would vest their new guest worker visa categories with portability. The Tancredo bill does not address the issue.

• The Cornyn-Kyl plan would allow 30 days to find new employment after dismissal or resignation.
• The Kennedy-McCain bill says workers would need to find new employment within 60 days of dismissal or resignation.

Employer's role and visa allocation

Under the Kennedy-McCain H-5A program

• employers would have to attest that they have attempted to hire an American worker — and have been unable to do so — through the America's Job Bank, an electronic database run by the Department of Labor.
• workers with H-5A visas would have to be hired as employees, rather than as independent contractors.
• initial allocation of 400,000 H-5A visas would have to be adjustable on the basis of annual demand.

Under the Cornyn-Kyl proposal

• employers would need to prove they have attempted to hire an American worker.
• a task force on guest workers could make recommendations about visa allocations to the Department of Labor.

The Tancredo bill also would require employers to demonstrate that they have attempted to hire an American worker. Additionally, it would require employers not to have laid off citizen workers in the previous six months.

Requirements for participation

The Cornyn-Kyl bill would

• require that in order for a country's citizens to participate in the guest worker program, their government would need to enter into an agreement with the United States to help facilitate return migration.
• create a worker investment fund to further create incentives for guest workers to return to their country of origin.
• mandate health insurance for all participants that would be provided either by themselves, their employer, or their country of origin.
• require visa applicants to pay a $500 fee.

The McCain-Kennedy bill would

• require cooperative international programs that would create and foster economic opportunity in the source countries.
• require visa applicants to pay a $500 fee.

The Tancredo bill would

• require applicants to waive government assistance.
• deny citizenship to children of H-visa holders unless the child's other parent was a U.S. resident or legal permanent resident.
• Require visa applicants to pay an unspecified fee.

Families

The Kennedy-McCain bill would allow the families of H-5A workers to accompany them to the United States, whereas the Cornyn-Kyl bill would only allow for a 30-day visit during any one year. The Tancredo bill would make no provisions for families of guest workers.