Sweeping Senate Bill Sets the Stage for Fundamental Overhaul of US Immigration System
By Muzaffar Chishti and Faye Hipsman
April 26, 2013
After months of negotiations, a bipartisan group of US 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 US 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 US 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 US 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 US 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 US 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, US citizens could no longer sponsor their siblings or their married children over the age of 31.
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 US 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 US 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 US-Mexico border for spending on additional fencing, personnel, and technology.
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 US 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.
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.
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.