By Muzaffar Chishti, Claire Bergeron, and Faye Hipsman
Migration Policy Institute
Release of a bipartisan Senate immigration blueprint and a White House plan in January marked the opening salvo of what’s sure to be a busy year on the immigration front in Washington. (Photo courtesy of Vcelloho/Wikimedia)
February 13, 2013
For the first time since 2007, immigration reform has moved back into the US political limelight. In his first State of the Union address since re-election, President Obama this week urged Congress to enact a sweeping immigration reform, receiving one of the evening’s rare bipartisan standing ovations.
Two weeks earlier, the White House and a bipartisan group of eight key senators unveiled separate proposals that call for a fundamental overhaul of the nation's immigration laws. In a clear sign of the altered political mood, both blueprints include legalization programs for many of the nation's estimated 11 million unauthorized immigrants, a subject that until recently was considered a third rail of US politics. The plans similarly also call for continuing to strengthen immigration enforcement and substantive reform of the legal immigration system.
The new frameworks are only the first step in what is sure to be a complex and contentious legislative process. No legislation introducing any of these proposals has yet been introduced, and congressional hearings are just now getting underway. (The House Judiciary Committee's was the first to be held in the 113th Congress on February 5, and the Senate Judiciary Committee has invited Homeland Security Secretary Janet Napolitano to testify at another hearing scheduled for February 13.) Moreover, there are significant differences between the two proposals — and much more resistance to any immigration reform package that includes legalization is expected in the Republican-controlled House of Representatives. All of these factors mitigate against a speedy legislative outcome.
Nevertheless, the newfound momentum for action is accentuated by a far stronger general agreement within both parties on the need to resolve an issue that has eluded the body politic for more than a decade but gained new importance with the November 2012 election results.
The Senate "Gang of Eight" Proposal
The first new blueprint was unveiled on January 28 by four Republican and four Democratic senators informally labeled the Gang of Eight. Its opening section deals with unauthorized immigrants, and it is the most notable element in the bipartisan framework. The senators' plan would allow unauthorized immigrants to register with the federal government, pay a fine and taxes owed, and pass a background check to receive probationary legal status enabling them to live and work legally in the United States. Individuals with probationary status who pay additional fines, learn English and civics, and demonstrate a history of past work and current employment, would ultimately be eligible to apply for lawful permanent residence (LPR or green card status). The registration process would take place while border security continues to be strengthened.
However, granting LPR status to "probationary" immigrants would be contingent upon the Secretary of Homeland Security certifying that additional border security measures have been implemented. These measures would include an increased number of Border Patrol agents, the deployment of additional unmanned aerial vehicles and surveillance equipment to the border, and the completion of an entry-exit system that tracks visitors to the United States. To provide guidance regarding the issuance of such a certification, the framework calls for the creation of a Southwest border commission comprised of governors, attorneys general, and community leaders who live along the border.
Also under the Gang of Eight framework, those with probationary status would be required to go to "the back of the line" to apply for green cards. This means their applications would be decided only after current applications in the family- and employment-based visa categories have been cleared. Currently, wait times in these visa categories can span years, and in some cases decades. The proposal calls for creating a shorter — and more direct — pathway to permanent resident status for two discrete groups of unauthorized immigrants: individuals who entered the United States as children and certain agricultural workers.
The senators' plan also calls for significant changes to the current legal immigration selection system. These include reducing visa backlogs for family-sponsored and employer-sponsored immigrants and awarding additional immigrant visas to foreign nationals who have received a master's degree or Ph.D. in science, technology, engineering, or math from an American university. The plan also outlines support for a "workable program that meets the needs of America's agricultural industry" and for allowing additional low-skilled immigrants to come to the United States during periods of labor shortages. Details on how to structure these programs were not fleshed out in the proposal.
The White House Plan
The day after the Gang of Eight plan was unveiled, President Obama announced his own set of principles for reforming the nation's immigration system. In a rally-style setting in Las Vegas, NV, the president outlined goals that generally mirrored those advanced by the senators: increased border security, a pathway to citizenship for many of the nation's unauthorized immigrants, mandatory employment verification, and reforms to the current legal immigration system.
Beyond those top-line areas of agreement, there were several differences. Perhaps most significantly, the White House plan would create a new "provisional legal status" but would not condition the actual granting of LPR status on the implementation of additional border security measures. Like the senators' plan, however, President Obama's proposal would require eligible provisional legal status immigrants to wait until current legal immigration backlogs have been cleared before they could apply for LPR status.
Unlike the senators' proposal, the White House plan would create new criminal penalties aimed at transnational criminal organizations and employers that knowingly hire unauthorized workers. It calls for increased funding for the nation's immigration courts, and would create a new visa category for employees of federal science and technology laboratories. Finally, the president's plan would offer an "expedited opportunity to earn their citizenship" for unauthorized migrants who were brought to the United States as children and who attended college or served honorably in the armed forces for two years.
Likely Sticking Points
While the two plans appear to indicate general agreement on many key principles, aspects of both proposals have already proven contentious for some on Capitol Hill and beyond. The most critical of these: Legalization, with a path to eventual US citizenship, for unauthorized immigrants. The concept provoked a strong reaction from many conservative House Republicans, who argue that granting of citizenship would only encourage future illegal immigration. House Judiciary Committee Chairman Robert Goodlatte (R-VA), presiding over the February 5 hearing on immigration reform, framed the issue as the "question of the day," asking San Antonio Mayor Julian Castro whether there was any compromise between "the extremes of mass deportation and a pathway to citizenship."
Also controversial is whether US citizens and legal permanent residents could sponsor their same-sex partners for immigration benefits. The White House proposal explicitly states that US citizens and LPRs should be able to seek visas on the basis of a "permanent relationship with a same-sex partner." However, Senators John McCain (R-AZ) and Marco Rubio (R-FL), two influential Republican members of the Gang of Eight, have expressed serious reservations about including such a provision. Speaking at an event hosted by Politico, Senator McCain argued that extending eligibility to same-sex partners could "derail" the overall bill.
Finally, major questions remain about whether to provide additional visas for low-skilled workers to fill existing (and future) US labor needs. While the senators' proposal calls for creation of a "workable program to meet the needs of America's agricultural industry ... to find agricultural workers when American workers are not available to fill open positions," the White House plan includes no such proposal. At the House Judiciary Committee hearing, congressmen from both parties voiced divergent views on the subject. Some argued that employers in sectors such as agriculture are unable to find a sufficient number of American workers to fill labor needs. Others voiced concerns over potential employer exploitation of foreign workers and the risk that they would compete for jobs with US workers.
Comprehensive Immigration Reform: Peering into The Past
The last time that the United States enacted legislation that combined strengthened enforcement measures with a legalization program for unauthorized immigrants was the Immigration Reform and Control Act of 1986 (IRCA), signed into law by President Reagan. IRCA had three components. First, it introduced major improvements and authorized significant budget increases for border security and immigration enforcement. Second, IRCA sought to implement a worksite enforcement system and for the first time made it unlawful for employers to knowingly hire unauthorized workers. Lastly, IRCA established a legalization program for the unauthorized population in the United States. A general legalization program for those who had been living in the United States for more than five years granted temporary and then permanent legal status to 1.6 million individuals, while a second program for special agricultural workers (SAW) legalized an additional 1.1 million unauthorized immigrants who had worked in agriculture.
More recently, in 2006 and 2007, immigration legislation combining strengthened enforcement with a legalization program gained renewed public support and backing from President George W. Bush. Immigration reform bills debated in the Senate in 2006 and 2007 included provisions that, similar to IRCA, would further heighten border security and immigration enforcement. The bills also sought to strengthen workplace enforcement by requiring all US employers to enroll in the E-Verify electronic employment verification program and to verify the immigration status of new hires. Third, the bills included measures that intended to legalize a substantial share of the existing population of unauthorized immigrants. While the 2006 legislation proposed to legalize those who had lived in the United States for at least several years and demonstrated a strong employment history, the 2007 bill called for legalization for those living in the United States at the time of the bill's passage only after certain enforcement "triggers" were satisfied. Unlike IRCA, the 2006 and 2007 bills included major changes to the legal immigration system to manage future employment-based permanent and temporary immigration to the United States. The 2006 bill died in the House after being passed in the Senate. The 2007 bill died in the Senate.
The Road to Compromise?
Even as immigration reform has gained momentum in political and public circles, it remains anyone's guess whether Congress will be able to send a major immigration reform package to President Obama's desk. An early indicator of success would be the number of votes that such legislation would receive in the Senate, where there is generally more bipartisan agreement on the issue. Members of the Gang of Eight have expressed hope that their plan can be channeled into a bill that would receive a broad Senate majority; in particular, Senator McCain has stated that the group is "seeking 80 votes." Widespread bipartisan support in the Senate would undoubtedly place increased pressure on the House, where support for sweeping immigration reform is far more tenuous, and where key lawmakers have indicated a preference for piece-meal reform rather than an over-arching bill.
Equally important will be whether any compromise can be forged on the contentious issue of citizenship for unauthorized immigrants. Backers of the new proposals have suggested that these concerns may be abated by requiring eligible immigrants to wait for a prolonged period before they are permitted to apply for LPR status — the first step to qualifying for citizenship. Others, however, argue that citizenship would be too generous, and that eligible unauthorized immigrants should receive a legal status that falls short of citizenship. Even as that debate continues, it is clear there is one group of unauthorized immigrants that has won broad-based support in both political parties: those who arrived in the United States as minors. House Majority Leader Eric Cantor (R-VA), in a recent speech, endorsed a path to citizenship for "those who were brought to this country as children and who know no other home."
Policy Beat in Brief
USCIS Issues New Guidance Indicating that Deferred Action Beneficiaries Are Lawfully Present. On January 18, US Citizenship and Immigration Services (USCIS) issued updated guidance on the Deferred Action for Childhood Arrivals (DACA) program, clarifying that the Department of Homeland Security (DHS) considers DACA beneficiaries to be lawfully present in the United States. The new guidance will, in some cases, clarify whether DACA beneficiaries are eligible to apply for state benefits such as driver's licenses, identification cards, and in-state college tuition rates, as the term "lawfully present" is frequently used in state laws to establish eligibility for those benefits.
Already, two states — Iowa and Michigan — have reversed policies that would prohibit DACA beneficiaries from obtaining state-issued driver's licenses. Both states had previously determined that DACA beneficiaries would not be able to apply because they were not considered to be lawfully present.
The DACA program, announced in June 2012, allows certain unauthorized immigrant youths who arrived in the United States as children to apply for work permits and temporary protection against deportation. As of January 17, USCIS had received 407,899 applications for DACA benefits, and approved 154,404 of those cases.
Federal Judge Allows DACA Lawsuit to Move Forward. A federal judge in Dallas issued an order stating that a lawsuit filed by Immigration and Customs Enforcement (ICE) agents in October 2012 against Homeland Security Secretary Janet Napolitano, ICE Director John Morton, and USCIS Director Alejandro Mayorkas may move forward. The lawsuit challenges the constitutionality of ICE's prosecutorial discretion guidance, established in an ICE memorandum in June 2011, and the DACA program, announced in June 2012, and claims that as a result of these policies ICE agents are being required to violate federal laws. While the new order clears the way for future litigation of the ICE agents' claims, it dismissed the claims of the state of Mississippi, which had joined the lawsuit and argued that those granted deferred action under DACA impose severe fiscal costs on the state. US District Judge Reed O'Connor found that Mississippi's claims were "insufficiently concrete" and "conjectural." The ICE agents, represented by Kris Kobach, Kansas Secretary of State and architect of several controversial state immigration laws, are seeking to suspend the DACA program.
- Read the new decision here.
OIG Report Finds Error in Medicare Coverage for Unlawfully Present. A recent report by the US Department of Health and Human Services Office of Inspector General (OIG) found that the Medicare program, administered by the Center for Medicare and Medicaid Services (CMS), paid $91 million for health care services provided to a sample of 2,575 unauthorized immigrants from fiscal year (FY) 2009 through FY 2011. Medicare provides health insurance to individuals 65 and older with disabilities or permanent kidney disease, but cannot cover health-care services for noncitizens who are unlawfully present in the United States. The report found that CMS data systems, which link primarily with the Social Security Administration, did not systematically identify beneficiaries whose immigration status disqualified them from coverage in a timely manner and thus the agency erroneously made payments to care providers. According to the report, CMS plans to implement a program that will detect and recover improper and lost Medicare payments.
New USCIS Fee Takes Effect. Effective February 1, USCIS will require applicants for immigrant visas to pay an additional immigrant fee of $165. The fee, payable online, will be due after the State Department issues the applicant an immigrant visa and sends their visa package, and before the applicant travels to the United States. According to USCIS, the fee will cover the cost of completing the processing of permanent residence applications and issuing green cards in cases that are initiated and adjudicated in consulates abroad. USCIS processes approximately 36,000 immigrant visa packages each month.
2012 Sees Slight Uptick in Border Patrol Apprehensions. US Customs and Border Protection (CBP) announced that in FY 2012, the Border Patrol made nearly 364,768 apprehensions nationwide, 356,873 of which occurred on the border with Mexico. This represents an approximate 7 percent increase over apprehensions in FY 2011 which totaled 340,252 nationwide, including 327,577 on the Mexican border. FY 2012 apprehensions represented a 50 percent decrease since FY 2008 and a 78 percent decrease from FY 2000. Apprehensions are the most common metric used to estimate illegal border crossing attempts. In FY 2012, CBP officers prevented nearly 145,000 inadmissible individuals from entering the United States through ports of entry, down from 215,600 in FY 2011.
State and Local Policy Beat in Brief
Atlanta ICE Office Targets Employers for Hiring Violations. ICE's Atlanta Field Office, responsible for Georgia, North Carolina, and South Carolina, audited 105 businesses for unauthorized hiring practices during FY 2012 and fined 41 employers a total of almost $900,000, the third highest amount among the agency's 26 field offices in the country. The Newark and Chicago ICE field offices ranked first and second, with $2.1 million and $1.4 million imposed in fines respectively. According to the Atlanta Journal Constitution, ICE conducted 3,020 audits, imposed $12.4 million in fines, and charged 240 managers with criminal violations in FY 2012 nationwide, a significant increase since 2009 when ICE conducted 1,444 audits, assessed $1 million in fines and made 114 employer arrests. ICE's increased focus on employers who hire unauthorized workers has been accompanied by a reduction in worksite arrests of unauthorized workers, and is part of a strategy adopted by the Obama administration to use employer sanctions to stem illegal hiring practices.
287(g) Terminated in Danbury, CT. Last month, the federal government ended its 287(g) partnership with the city of Danbury, CT. Under the agreement, law enforcement officials are authorized to enforce certain federal immigration laws and can access federal immigration databases. The program identified 14 unauthorized immigrants in Danbury in FY 2011, and four in FY 2012. While critics of 287(g) contend that the program undermines the relationship between immigrant communities and local law enforcement and leads to racial profiling, Danbury's police chief said it enabled officers to use discretion. Secure Communities, a program that screens all arrestees against federal immigration databases during the booking process, is operational in Danbury.