Carnegie Reporter, Vol. 3, No. 3 | Immigration Legislation: Solutions for a Broken System

By Karen Theroux

In May 2005 Senators John McCain (R-AZ) and Edward M. Kennedy (D-MA) introduced legislation aimed at reforming the troubled U.S. immigration system. If enacted, The Secure America and Orderly Immigration Act (S 1033) would, among other provisions, afford millions of undocumented immigrants in the United States the opportunity to obtain legal status as temporary guest workers and get on the path to citizenship. It would also allow residents of other countries who want to come to the U.S. to seek the same status - if they can prove that a job is waiting for them here.

Months in the making, this bipartisan bill addresses many additional immigration-related concerns, from homeland security, fraud and crime to family unification, health care and civics and English-language education. By acknowledging the contributions of undocumented workers to the economy and offering a realistic way for the unauthorized resident population in the U.S. to earn lawful permanent status, the bill's sponsors claim this legislation could correct fatal flaws in existing immigration policy in a just and humane manner. According to Kennedy, "we need to modernize our broken immigration system.... And we need policies that continue to reflect our best values as a nation - of fairness, equal opportunity and respect for the law."

McCain stressed another essential aspect of the proposed bill. "Homeland security is our nation's number one priority. This legislation includes a number of provisions that together will make our nation more secure." The bill (outlined in more detail below) would allow undocumented immigrants to obtain temporary work visas while requiring them to pay fines and back taxes and to apply for a green card. It provides for a secure identification document for legal job seekers, and a restructured enforcement system to ensure that employers who hire immigrant workers comply with new laws. By allowing many more workers to enter the country legally, the bill aims to ease pressures on border agents, freeing them to concentrate on stopping terrorists, drug and human traffickers and other criminals. Another significant provision is an effort to partner with neighboring countries to control the flow of their citizens to jobs here by working to offer better economic opportunities at home.

With an estimated 11 million undocumented immigrants in the country, often with children or spouses who are citizens, and an underground economy measured in multiple billions, the stakes for policy reform are high. President Bush has challenged legislators to enact immigration laws that will "make us proud." Does the McCain/Kennedy bill measure up? Many conservative and liberal groups concerned with immigration issues agree that it does. To them, stronger enforcement coupled with expansion of the legal channels through which immigrant workers - who are essential to the economy -- can enter the U.S., represents the only realistic answer to our immigration crisis. Having high-profile sponsors from both sides of the aisle might seem to bode well for the bill, but despite its bipartisan origins, there are plenty of critics claiming it's really all about amnesty. They argue that letting millions of people who have broken the law off the hook is out of the question, and the only cure for our ailing immigration system is making our borders airtight.

With this (mainly conservative) concern in mind, last July Senators John Cornyn (R-TX) and Jon Kyl (R-AZ) introduced the Comprehensive Enforcement and Immigration Reform Act of 2005 (S1438). This bill would escalate enforcement by adding over 11,000 Border Patrol Agents plus $5 billion in technology and infrastructure over 5 years to curtail illegal border crossing. Among the many points of departure between it and Kennedy/McCain are: limiting of temporary work visas to two years (compared to Kennedy/McCain's three years with a one-time renewal, for a possible total of six) after which the immigrant must return home; expansion of "expedited removal," a streamlined means of forcing undocumented aliens to leave the U.S.; requiring that all undocumented immigrants leave the U.S. immediately, with the option of re-entering legally. Though popular with anti-immigration groups, Cornyn/Kyl, has come under criticism for marginalizing immigrants and failing to recognize their contribution to the community or the marketplace.

Cornyn/Kyl or McCain/Kennedy? Cracking down or opening up of legal pathways - which view is more likely to prevail? As things stand now, "McCain/Kennedy focuses more on the humanitarian challenge at the border and the broader market disorder that large scale unauthorized immigration breeds. And it is better in acknowledging the social and economic facts on the ground," wrote Demetrios G. Papademetriou of the Migration Policy Institute. "Cornyn/Kyl focuses more on the economics of the issue and tries explicitly to address the enforcement issues comprehensive reform must confront." Congress must decide, and no one expects a quick resolution. Yet, with consensus, there's hope that comprehensive immigration reform--a smarter, fairer system combining more effective enforcement and respectful treatment of immigrants and their families -- could be enacted by the 2006 elections.

A rundown of each bill's provisions may shed some light on how two potentially opposing efforts could become one:

McCain-Kennedy-Kolbe-Flake-Gutierrez
THE SECURE AMERICA AND ORDERLY IMMIGRATION ACT

Border Security

Requires the development of border security initiatives.
Establishes a Border Security Advisory Committee to provide recommendations to the Department of Homeland Security regarding border enforcement.
Encourages multilateral partnerships to improve border security south of Mexico.

State Criminal Alien Assistance
Reauthorizes the program that provides reimbursement to state and local governments for incarcerating undocumented aliens convicted of crimes.
Allows for funding to pay for associated criminal justice costs.

Essential Worker Visa Program
Creates a new temporary visa to allow foreign workers to enter the U.S. and fill available lower-skilled jobs.
Requires applicants to show that they have a job waiting here, pay a fee of $500 (in addition to application fees) and clear security, medical, and other checks. Valid for three years, the visa can be renewed once (6 years total) after which the worker must be in the pipeline for a green card or return home.The visa is portable, but a worker who loses his job must find another one within 60 days or return home.
Sets an initial cap at 400,000 visas, which may be adjusted up or down based on demand.
Requires updating of America's Job Bank to make sure job opportunities are seen first by American workers.
Ensures that employers of temporary workers obey the law, and protects temporary workers from abuse by foreign-labor contractors or employers; gives all workers remedies for rights violations.

Enforcement
Creates a new electronic work authorization system to replace the existing fraud-prone, paper-based one. The new system will be applied universally and cannot be used to discriminate against job applicants.
Gives individuals the right to review and correct their own records (with data privacy protections in place).
Requires biometric verification for immigration-related documents.
Authorizes the Labor Department to conduct random audits of employers and ensure compliance with labor laws.
Raises fines for illegal employment practices.

Promoting Circular Migration Patterns
Requires other countries to enter into migration agreements with the U.S. to help control the flow of their citizens into the U.S., and emphasizes the re-integration of citizens returning home.
Encourages the U.S. government to partner with Mexico to promote economic opportunity there and reduce the pressure to emigrate.
Fosters U.S.-Mexico cooperation on health care access to relieve U.S. of costs of caring for Mexican nationals

Family Unity and Backlog Reduction
Eases green card requirements by not counting immediate relatives of U.S. citizens against the 480,000 annual cap on family-sponsored green cards; by raising the per-country limit on green cards slightly to alleviate backlogs; and by lowering income requirements for sponsoring a family member and removing other obstacles to promote fairness.
Revises employment-based categories to provide additional visas for employers who need to hire permanent workers, raising the annual cap from 140,000 to 290,000.

Adjustment of Status for H-5B Non-Immigrants
Allows undocumented immigrants who are in the U.S. when the law goes into effect to register for a temporary visa, valid for six years-- provided they prove work history, clean criminal record, and are not a security problem.
Includes work and travel authorization plus eligibility for spouses and children. To qualify for permanent status, workers will have to meet a future work requirement, clear additional security/background checks, pay substantial fines and application fees ($2000 or more per adult) and back taxes, and meet English/civics requirements

Protection Against Immigration Fraud
Imposes new legal requirements on notarios or other unlicensed immigration law practitioners to eliminate the exploitation of immigrants.
Allows defrauded immigrants to file actions against unauthorized legal representatives.

Civics Integration
Creates a public-private foundation under the USCIS Office of Citizenship to support programs that promote citizenship and to fund civics and English language education for immigrants (for which additional Government funds are provided).

Promoting Access to Health Care
Extends the authorization of federal reimbursements for hospitals that provide emergency care to undocumented immigrants and workers in the program.

Miscellaneous
Distributes the fees and fines workers pay for visas among government agencies including the Department of Homeland Security and Department of Labor to help offset immigration costs.
Requires dissemination of information related to this legislation and protects all workers, including H-5A and H-5B visa holders, against discrimination.

Cornyn-Kyl
COMPREHENSIVE ENFORCEMENT AND IMMIGRATION REFORM ACT

Border Enforcement and Visa Security
Authorizes sufficient resources, including 10,000 Border Patrol Agents and 1,250 new Customs and Border Protection Officers.
Authorizes $5 billion over 5 years for accompanying technology and infrastructure to stop illegal border crossing.
Provides a streamlined means of removing aliens who are clearly ineligible to enter the U.S.
Cancels all visas in the possession of an alien if he or she fails to depart U.S. at end of stay.

Strengthening Interior Enforcement and Leveraging State and Local Law Resources
Provides the Department of Homeland Security with 10,000 detention beds over 5 years to eliminate the release of illegal aliens into the country.
Authorizes 250 additional DOJ immigration judges and 500 DHS trial attorneys over 5 years.
Increases penalties for alien smuggling, document fraud, drug trafficking and gang violence.

Worksite Enforcement
Authorizes 10,000 additional agents over 5 years to investigate employers who hire illegal aliens. Also 1,000 new investigators over 5 years to detect fraud in application processes.
Increases the penalties for unauthorized employment of aliens, social security fraud and false claims to citizenship

Obligations of Participating Countries
Requires countries to enter into bilateral agreement with U.S. government before the nationals of the country are allowed to participate in a temporary worker visa program or Mandatory Departure status.
Requires aliens to have a minimum level of health coverage, which can be provided by the participating country, the alien or the employer.
Requires participating country to cooperate in efforts to control illegal immigration. And immediately accept return of nationals who are ordered removed from the U.S.

Temporary Worker Program
Establishes a new visa category that allows aliens to enter the U.S. to work temporarily when there are no available U.S. workers.
Limits the period of visa to two years, after which the alien must return home for one year.
Allows alien to participate up to three times (for a total of 6 years of employment in the U.S.).
Requires completion of background checks, health screening and issuance of biometric documentation to participating aliens.
Permits family members to visit principal worker in the U.S. for no longer than 30 days within a given year.
Mandatory Departure and Reentry in Legal Status
Allows aliens who are present in the U.S. illegally to apply for Mandatory Departure, which enables them to depart the United States voluntarily and reenter the country through normal legal channels (e.g. as temporary worker).
Prohibits aliens granted Mandatory Departure status from obtaining permanent resident status (i.e. green card) while in the U.S. - they must depart and reenter through normal legal channels.
Requires aliens to be registered, fingerprinted, and checked against all available criminal/terrorist lists.
Makes aliens who fail to depart ineligible for any other immigration benefit for a period of ten years.

Circular Migration and Visa Backlog Reduction
Creates temporary worker investment funds to encourage aliens to return home.