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Sweeping Senate Bill Sets the Stage for Fundamental Overhaul of U.S. Immigration System
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Sweeping Senate Bill Sets the Stage for Fundamental Overhaul of U.S. Immigration System

April 26, 2013
Policy Beat
By Muzaffar Chishti and Faye Hipsman

After months of negotiations, a bipartisan group of U.S. senators informally called the "Gang of Eight" on April 17 introduced long-awaited legislation for a sweeping overhaul of the nation's immigration system. The introduction of the 2013 Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) marked the opening salvo for what is bound to be a long deliberation in Congress of a bill that sets the tone for changes that reach into nearly every corner of U.S. immigration policy. Though conditions for action on immigration reform seem more promising than they've been since 2001, supporters of comprehensive immigration reform confront a tight legislative calendar, a difficult political dynamic in the House of Representatives, and an early stumbling block precipitated by the April 15 Boston Marathon bombings.

While most of public attention has been drawn to one aspect of the 844-page bill — a legalization program for many of the nation's estimated 11 million unauthorized immigrants — it is clear that the legislation's architects seized an opportunity to incorporate a variety of landmark measures that, when taken together, recast some of the long-established principals of U.S. immigration law in scope not seen since 1965.

The heart of the legislation — its provisions to manage the future flow of immigration — would, over time, tilt the current legal immigration system away from its predominant emphasis on family reunification toward meeting U.S. labor market needs. In the process, it would establish far greater flexibility for employers to access foreign workers when they are needed, for workers to move within the labor market, and for a system to determine the number of workers admitted into the country.

A Greater Focus on Employment-Based Immigration

According to The New York Times' analysis of the bill, the share of family-based immigration in annual admission of lawful permanent residents (LPRs) would shift from 75 to 50 percent. To that end, one of the most significant provisions is the creation of new merit-based points system, through which 120,000 to 250,000 immigrants per year would be admitted based on a list of government-established attributes: age, education, work experience, English language proficiency, employer demand, and presence of U.S. relatives. On employment-based permanent legal immigration, there would be no caps on visas granted to individuals with extraordinary ability, outstanding researchers, multinational executives, and noncitizens with Ph.D. degrees or advanced degrees in science, technology, engineering, and math (STEM) from a U.S. university. Furthermore, the spouses and children of employment-based immigrants would no longer be counted toward numerical caps. On the family-based side, visas for spouses and minor children of LPRs would no longer be capped. However, U.S. citizens could no longer sponsor their siblings or their married children over the age of 31.

Flexibility

In another significant change, the bill would create a new legal channel for low-skilled temporary workers in non-agriculture occupations called the W-1 visa. The number of those admitted in this category would be adjusted in accordance with the labor market needs and conditions in the U.S. economy. In its first year, 20,000 visas would be available. But in later years, the numbers could be set as high as 200,000. Workers would enter on three-year renewable visas, be able to change their employers, and eventually seek LPR status. Employers would have access to new workers if their sponsored workers leave their employment.

A New Enforcement Regime

S. 744 would also set in motion a far-reaching workplace enforcement measure that would impact employers of all sizes and in all occupations. Designed to prevent employment of unauthorized immigrants, within five years of enactment of the law, all U.S. employers would be required to use a federal electronic employment eligibility verification system, most likely E-Verify. E-Verify enables employers to check whether new hires are permitted to work in the United States. Under the bill, large businesses with over 5,000 employees would be given two years to begin using the system; businesses with over 500 employees would be given three years; and all other employers would be required to use E-Verify within four years. Employers would face stiff penalties for violations of this mandate.

To reduce the incidence of noncitizens overstaying their authorized period of stay (currently estimated to be 40 to 50 percent of the total unauthorized population), the bill directs DHS to implement an exit system at all air and sea ports of entry by December 2015. This would supplement the existing system to track noncitizens at their point of entry.

Additionally, the bill would usher in new levels of surveillance at the southern land border, including the operation of drones 24 hours per day, seven days per week. Furthermore, the legislation authorizes $4.5 billion—and possibly as much as $6.5 billion—for increases in enforcement at the U.S.-Mexico border for spending on additional fencing, personnel, and technology.

Legalization

Finally, the Senate bill would grant Registered Provisional Immigrant (RPI) status to unauthorized immigrants who have been physically present in the United States since December 31, 2011, pass a criminal background check, and pay taxes assessed and a fine. After ten years in RPI status, these persons could gain a green card if they demonstrate a consistent employment record or pursuit of education, and learn English. Three years after LPR status, they would be eligible for citizenship. However, no adjustment from RPI to LPR status would be permitted until certain border security and interior immigration enforcement requirements have been met.

In a special concession, DREAMERs (unauthorized immigrants who arrived in the country before age 16 and meet certain additional criteria) and agricultural workers would be given an expedited path to LPR status and citizenship.

Other important changes in the bill include:

  • Increase in H-1B visas (which allow U.S. businesses to employ foreign workers in jobs requiring expertise in specialized fields) to 110,000 (with potential to be adjusted to 180,000 over time); however, large businesses (with over 50 employees) would be prohibited from having a workforce made up of over 50 percent H-1B workers.
  • Elimination of the diversity visa program
  • Elimination of the one-year requirement for filing asylum applications
  • Establishment of an independent immigration agency to make periodic recommendations to Congress and the executive branch regarding adjustments to employment-based immigrant and temporary worker flows.

(Read MPI's detailed analysis of S. 744, comparing the legislation to the earlier 2006 and 2007 Senate immigration bills.)

Members of the Gang of Eight wholeheartedly endorse the bill and all indications thus far are that they intend to remain unified as it winds through the Senate. Meanwhile, proponents of immigration reform from both parties have generally welcomed it as an important first step, but Democrats have expressed concerns about the elimination of certain family-based and diversity categories. Meanwhile, Republicans appear to be troubled about the low numbers allotted initially to the W visa program. Opponents of immigration reform have criticized the bill as an "amnesty" for lawbreakers, and an invitation to future illegal immigration. They have also criticized the border security measures as inadequate and that allow too much discretion to DHS officials.

The Boston Bombings

On April 15, as senators readied their bill for introduction, two bombs were set off at the finish line of the Boston Marathon, killing three and injuring over 200.

The bill's momentum—fueled by constant speculation over its impending introduction—was briefly interrupted. Coverage of the attacks consumed national media, overshadowing the introduction of the legislation and prompting its sponsors to cancel a scheduled press conference out of respect for those affected by the attacks.

After the revelation that the bombing suspects were two Russian-born brothers of Chechen heritage who came to the United States as minors in the early 2000s pursuant to a grant of political asylum to their father, questions were raised about possible lapses in the immigration system. Several lawmakers, including Senator Charles Grassley (R-IA) and Senator Rand Paul (R-KY) suggested that vulnerabilities exposed in the Boston attacks should be addressed before Congress turns to making broader immigration reforms.

However, supporters and sponsors of the bill, both Democrats and Republicans, have taken the opposite stance, arguing that if anything, the Boston events increased the need for swift action on immigration reform. In a joint statement, two of the Gang of Eight members, Senators Lindsey Graham (R-SC) and John McCain (R-AZ), stated that "immigration reform will strengthen our nation's security by helping us identify exactly who has entered our country and who has left." Their views gained a boost when 2012 GOP vice presidential nominee Paul Ryan, a congressman from Wisconsin with significant support in conservative circles, said Boston has impressed the need to "fix and modernize our immigration system."

Though the early focus after the bombing was on the immigration system and its possible failures, attention quickly shifted to the intelligence community after word that Russian authorities had contacted both the FBI and CIA in 2011 to express concerns that one of the bombing suspects, Tamarlan Tsarnaev, had possible ties to extremists.

While the Boston attacks knocked the immigration reform debate off stride for a few days, there was a sharp contrast to the political reactions in the aftermath of the September 11 terrorist attacks. After 9/11, lawmakers shelved all consideration of immigration reform for years and raced to enact strict procedures for visa issuance, tracking, and registration of foreign citizens. Because the 9/11 hijackers traveled to the United States with valid visas even though some were known to intelligence and law enforcement agencies, serious weaknesses in the immigration enforcement system were revealed, prompting Congress and the federal government to invest billions of dollars in staffing, new technology, and programs to make the system dramatically more effective.

Legislative Timeline

Beyond any implications resulting from the Boston bombing, the efforts for immigration reform in Congress also face a race against the clock.

After several missed deadlines on its introduction, the Senate bill is finally gearing up for action. Hearings began in the Senate Judiciary Committee on April 19, and the committee is expected to begin considering amendments to the the bill on May 9 and report it out for a vote in the full Senate in June.

President Obama, who has been seeking to keep the pressure on Congress to act, has demanded that the legislation reach his desk by the end of September. With a limited number of working legislative weeks left in both the Senate and the House before Congress' month-long recess in August, the clock is ticking for legislation to clear both legislative chambers.

In the House, there are reports that a bipartisan "secret gang" of members is drafting a broad reform bill but introduction of comprehensive legislation does not appear to be imminent. However, House Judiciary Committee Chairman Robert Goodlatte (R-VA) has indicated a preference for a piece-meal approach to legislation, and stated on April 25 that the committee will begin introducing individual proposals, beginning with a guestworker program and an employment verification system, within the week. It is unclear whether the two paths can find a common ground.

Furthermore, while House supporters of immigration reform can be found on both sides of the aisle, the issue faces powerful opposition from parts of the GOP. Many conservative House members represent districts with little immigrant constituency and face the threat of a primary challenge if they appear to be soft on immigration. According to Representative Mario Diaz-Balart (R-FL), a key member involved in immigration talks, the House bill will be "a lot tighter [and] stricter" than the Senate bill.

Though for President Obama immigration reform is clearly a top priority, in Congress immigration legislation faces competition from other legislative priorities. Pressure is mounting on lawmakers to reconcile appropriations bills, agree on a federal budget, act on increasing the nation's debt limit, and pass an ambitious farm bill. Still, while immigration legislation must compete with these other priorities, the momentum for its consideration is stronger and spans more fronts than it has in decades.

Policy Beat in Brief

Supreme Court rules on Deportation and Marijuana Case. On April 23, the Supreme Court ruled in Moncrieffe v. Holder that "the social sharing of a small amount of marijuana" does not carry the automatic consequence of deportation. Justice Sonia Sotomayor wrote the seven-justice majority's opinion, while Justices Samuel Alito and Clarence Thomas each dissented with separate opinions. The case originated when Adrian Moncrieffe, a Jamaican citizen, was found with 1.3 grams of marijuana during a 2007 traffic stop in Georgia and later pled guilty to possession with intent to distribute, a felony in Georgia. He was sentenced to five years of probation. DHS sought to remove him as having committed an aggravated felony, which carries an automatic consequence of removal. The majority opinion concluded that since it was unclear whether the offense committed rose to the level of an aggravated felony, the respondent should be given the benefit of the doubt and not automatically face removal.

H-1B Cap for FY 2014 Quickly Reached. In early April, U.S. Citizenship and Immigration Services (USCIS) announced that within one week of opening the H-1B application period for employment beginning in FY 2014, it had received 124,000 petitions, thus reaching the annual statutory cap of 85,000 H-1B visas (65,000 plus 20,000 for nonimmigrants with U.S. masters degrees). As a result, USCIS used a computer generated lottery process to select which 85,000 petitions will be processed for a grant of a visa in the upcoming fiscal year. The FY 2014 filing period was the first time since 2008 that USCIS received enough H-1B petitions to reach the cap within days. The H-1B visa program enables U.S. employers to sponsor high-skilled foreign nationals such as scientists, computer programmers, and engineers to work in the United States for up to six years.

Temporary Protected Status Extended for Nicaragua, Honduras; Deferred Enforced Departure extended for Liberia. On April 3, DHS Secretary Janet Napolitano announced that Temporary Protected Status (TPS) would be extended for nationals of Nicaragua and Honduras through January 5, 2015. Individuals from those countries who already have TPS have been given a 60-day period from April 3 to June 3, 2013 to re-register for the program. Both Honduras and Nicaragua have been designated for TPS since January 1999, after the region was devastated by Hurricane Mitch in fall 1998. Since 1990, the United States has granted TPS, which includes protection against deportation and permission to work, to nationals of designated countries that are deemed unsafe for repatriation due to ongoing armed conflict or a national disaster. Currently, eight countries are designated for TPS status—El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.

On March 15, President Obama announced that Deferred Enforced Departure (DED) for Liberians would be extended for 18 months, through September 30, 2014. Due to armed conflict and civil unrest, Liberia was designated for TPS until country conditions improved in 2007. Since that time, for foreign policy reasons, Liberians who were originally granted TPS have been protected from deportation under DED, which also provides work authorization. Liberia is currently the only country covered by DED.

  • Learn about TPS and DED on USCIS' website.
  • Read President Obama's memorandum on DED for Liberians.

Electronic I-94 System to Begin Roll Out.. On April 30, Customs and Border Protection (CBP) will begin rolling out electronic I-94 arrival/departure records for foreign nationals entering the UnitedStates on nonimmigrant visas. It replaces the current paper I-94s that are issued. The new procedures will first be implemented at airports in Charlotte, Orlando, Las Vegas, Chicago, Miami, and Houston, and will be phased in at other major air and seaports throughout April and May. Arrival and departure records will be available to travelers on a new website (www.CBP.gov/I94). According to the agency, the new paperless system will streamline the entry process for travelers, facilitate security, and save $15.5 million per year. Paper I-94s will still be issued at land ports of entry.

  • Read about the electronic I-94 roll out on CBP's website.

Court Ruling, DOJ, DHS Guidelines Provide Safeguards for Mentally Disabled.. On April 23, a federal district court in California ordered Immigration and Customs Enforcement (ICE), the Attorney General, and the Executive Office of Immigration Review (EOIR) to conduct psychiatric evaluations of, provide legal representation to, and afford timely bond hearings to immigrant detainees with mental disabilities who are not capable of representing themselves in immigration hearings. The ruling in the case, Franco-Gonzalez v. Holder, applies to detainees in California, Washington, and Oregon.

Just one day before the ruling, the Department of Justice (DOJ) and DHS issued a new nationwide policy for unrepresented immigration detainees who are not mentally competent to represent themselves in immigration proceedings. The new safeguards will include screening and improved measures to identify detainees with serious mental disabilities, competency hearings and independent psychiatric or psychological examinations, the provision of legal representation to these individuals, and bond hearings for such detainees who have been held in immigration detention for at least six months. These protections are expected to be fully in place by the end of 2013.

Immigration Rallies Held across the Country. Immigration reform supporters organized a "Rally for Citizenship" on April 11 to press lawmakers to enact immigration reform. The rally, which attracted thousands, was held in front of the U.S. Capitol in Washington, DC, and featured speeches from members of Congress, representatives from faith-based organizations, immigration advocacy groups, and labor unions. Additional rallies for immigration reform were simultaneously held in various places across the country.

  • Read about the rally in the Washington Post.

State and Local Policy Beat in Brief

Oregon Enacts Tuition Equity Bill. On April 2, Oregon Governor John Kitzhaber signed into law a bill that allows unauthorized students in Oregon to pay in-state tuition rates at public universities. To qualify, students must have attended school in the United States for at least five years, studied at an Oregon high school for at least three years and graduated, and have the intention to become a U.S. citizen or lawful permanent resident. Currently, 13 states permit unauthorized students to pay in-state tuition rates, while six states bar this policy.

Section of Georgia's Immigration Law Blocked. A U.S. district court in Atlanta has struck down a key provision of the Georgia Illegal Immigration Reform and Enforcement Act of 2011, commonly known as "HB 87." Section 7, which criminalized the transporting and harboring illegal immigrants while committing another crime (such as a traffic violation), and made it a crime to encourage unauthorized immigrants to enter the state, was permanently enjoined as preempted by federal law.

South Carolina Cites Businesses for Noncompliance with Mandatory E-Verify.. In the first year that South Carolina began enforcing its E-Verify mandate, the state's Department of Labor cited 323 employers for noncompliance after conducting an audit of 4,000 businesses. According to a state government official, none of the cited businesses lost operating licenses, and none were repeat offenders. In 2011, South Carolina passed a law requiring all businesses use E-Verify, a federally run electronic system that enables employers to determine whether new hires are authorized to work. Employers of farm workers, maids, and fishermen are exempt from the mandate. Currently, 20 states require some or all employers to use E-Verify.

Indiana Law Ruled Unconstitutional. On March 29, a U.S. district court in Indiana permanently enjoined parts of the state immigration enforcement law, SB 590. The blocked sections would have permitted warrantless arrests of noncitizens and prohibited the use of consular IDs as identification forms. The ruling found that SB 590 violated the Fourth Amendment by allowing state and local law enforcement to "effect warrantless arrests for matters that are not crimes." Indiana state government officials will not appeal the decision. Indiana's SB 590 was passed in 2011, and was modeled after Arizona's notorious immigration enforcement law, SB 1070, which was struck down by the Supreme Court in June 2012.

Montana Immigration Enforcement Law Partially Enjoined. On March 26, a state district court in Montana struck down certain sections of the state's legislative referendum LR 121, a ballot measure approved by voters on November 6, 2012. The measure seeks to bar noncitizens that entered the country illegally from state services such as licenses, employment, benefits, and financial aid by requiring proof of citizenship or lawful status. In December 2012, several groups and one individual filed a lawsuit to enjoin the measure on the grounds that it was preempted by federal law and that it violated the right to privacy, due process, and equal protection. While the ruling did not block all provisions of the measure, it will prevent the state from using exclusively the federal Systematic Alien Verification for Entitlements (SAVE) database to determine and individuals' eligibility for benefits. It also bars the state from defining an "illegal alien" as an individual who entered the country unlawfully (even if he or she now resides lawfully). This is the first decision in Montana to address the constitutionality of a state law that enforces federal immigration law.

 

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