The 2012 presidential election campaign demonstrated the growing power of Latino voters in key states such as Texas and California and gave new political life to long-stagnant efforts at immigration reform. In this context, on April 16, 2013, a bipartisan group of Senators, known commonly as the “Gang of Eight,” introduced an 844-page bill titled, The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) that, if passed, will significantly change the U.S. immigration system, in both positive and negative ways. It is currently estimated that 11.5 million undocumented immigrants are living in the United States, and the legislation currently proposed is geared towards legalizing their status and providing the first major overhaul of the immigration system since the Ronald Reagan administration in the 1980s.
The analysis below draws largely from an extensive summary of the bill’s contents provided by the Democratic Policy and Communications Center (DPCC).[ As of this writing, the bill has not yet been voted on in the Senate or taken up in the House of Representatives and so its contents are still subject to change. However, an analysis of the bill in its current form is warranted, as it is the clearest and most comprehensive indication of the future of immigration law in the United States.
As it is currently written, the legalization of currently-undocumented immigrants (who would acquire legal status) is contingent upon several “triggers,” not least of which would be expanded resources and enforcement measures in the area of border security. To that end, the proposed bill would allocate $3 billion to fund enhanced border and immigration security measures, including the development of a border security fencing plan by the Secretary of Homeland Security, a “mandatory and operational” Electronic Employment Verification System (EEVS, more commonly known as E-Verify), and the implementation of “a biographic entry-exit system at air and seaports.”
Registered Provisional Immigrant Status
The law would provide a new form of relief called Registered Provisional Immigrant (RPI) Status. Undocumented immigrants who came to the U.S. before December 31, 2011 and have continued to reside in the U.S. would be able to apply for RPI status. In the long march towards permanent residency and eventual citizenship, RPI applicants would be required to pay multiple fines and fees and any back taxes, pass multiple background checks, show that they are working to learn English (if they do not speak it already), and be able to demonstrate economic self-sufficiency. Once RPI status is approved, persons with RPI status would retain such status for six years and be given employment authorization as well as travel authorization, both of which would be significant benefits for many people who have long been unable to legally seek gainful employment or travel to their native countries. After six years, RPIs would need to file to renew their status, showing they still meet all the eligibility criteria and paying additional filing fees.
Roughly 10 years after acquiring RPI status, individuals would be able to apply for permanent residence. Such applicants would be required to wait until the existing backlog of applicants had been processed before adjustment of their status would be reviewed. Three years after attaining permanent residency, former RPIs could then apply for naturalization to become U.S. citizens. All told, the time from granting of RPI status to citizenship would come to at least 13 years.
The long wait before acquiring permanent residency seems somewhat arbitrary, especially when applied to individuals who have already been living in the United States for decades. Moreover, throughout the entire process, immigrants would have to pay at least $2,000 in fines and hundreds more in fees along the 13-year path to citizenship, thereby potentially excluding those unable to pay the fees. The employment or income requirements for both RPI status and permanent residency through RPI status also seem highly problematic, absent further guidance on how such requirements would be enforced in actuality, as it seems that low-income immigrants could be deprived of the benefits offered through the legislation. Moreover, even though the proposed legislation aims to eliminate the creation of future backlogs, it is questionable whether the existing backlogs could be cleared in the timeframe allotted such that RPIs could in fact seek adjustment of status 10 years after becoming RPIs.
While the bill would offer previously unavailable relief to many millions of individuals, it can also be criticized for the people it excludes. For instance, persons who entered the United States after December 31, 2011 would be unable to benefit from the bill’s provisions. In addition, many individuals may likely be barred by acquiring RPI status because of expansive definitions of certain criminal acts under existing immigration law. For instance, if a person has committed three relatively minor misdemeanor offenses, they may be ineligible for RPI status. Finally, the English language requirement for adjustment of status could pose further barriers to otherwise deserving immigrants.
On the positive side, the bill as currently written would codify many important parts of the long-dormant DREAM Act, allowing RPIs who came to the U.S. before age 16 and earned a GED or high school diploma to apply for permanent residency. Moreover, the law would also so-called ‘DREAMers’ to apply for naturalization after five years as an RPI (rather than ten). Although the passage of Deferred Action for Childhood Arrivals (DACA) was a step in the right direction, the proposed bill offers a permanent solution and path to citizenship for the millions of individuals who came to this country as children and have made the United States their home.
Family Unity and Employment-Based Immigration
Aside from the creation of RPI status, the proposed legislation contains broad changes to the existing family- and employment-based immigration system. Legal immigrants who have been in the United States continuously for ten years or longer would be eligible to seek permanent residency, and permanent residents would be able to “immediately” sponsor their spouses or children for permanent residency. This would be a huge improvement in the current family-based immigration system, as it would eliminate the grossly long wait that permanent residents have to endure for their spouses and children to obtain legal status. The bill would also enable “families with approved petitions to work and live in the U.S. while waiting for their green card” and would allow siblings short-term visitation periods.
Despite all of the positive aspects of the proposed legislation, there are several negative aspects that would potentially hinder family unity. For instance, sponsorship of siblings for permanent residency would be eliminated, and children at or over 31 years of age would also be ineligible for sponsorship from their US citizen parents. While previously-filed petitions would seemingly not be impacted, this would deprive many individuals of the right to be reunited with their adult children (over age 31) and/or siblings, and potentially leave recently-naturalized elderly individuals without family care takers to assist them as they age.
The bill also seeks to introduce a new merit-based system to the processing of immigrant visas. It is a complicated point-based system, wherein prospective applicants for a so-called ‘Track One’ visa would be prioritized based on “various factors, including educational degrees, employment experience, and needs of U.S. employers, U.S. citizen relatives, and age,” as well as how long the applicant has been living in the U.S., while ‘Track Two’ visas would be granted to backlogged family-or employment-sponsored applicants (waiting five years or longer) and to individuals who have been legal permanent residents for at least ten years.
One problem with the point system is the clear prioritization it gives to those immigrants who are already likely to benefit the most from their training and economic resources, leaving low-wage and low-skilled workers in a potentially indefinite wait period while their better-educated and wealthier counterparts skipped to the head of the line.
Despite my skepticism about the points-based merit system contained in the proposed legislation, there are numerous improvements with relation to the availability of certain employment-based visas. For instance, it would increase the number of H1B visas available each year, as well as increase the availability of visas for certain low-skilled labor positions through the creation of a new “W” visa category.
Many concerns are being raised over bill’s provisions mandating the national implementation of the Electronic Employment Verification System (EEVS), commonly known as E-Verify. While government officials report that E-Verify’s accuracy has improved in the years since its introduction, the remaining possibility for error means that some individuals will undoubtedly be wrongfully denied employment to which they should be entitled. Additionally, the system would potentially be expensive to maintain, and civil liberties advocates, such as the American Civil Liberties Union (ACLU) have expressed concerns that the centralization of personally identifiable information (PII) poses risks to Americans’ privacy and increases the risk of identity theft.
In my opinion, there would be at least two highly significant improvements in the law governing asylum if the proposed legislation is passed. First and foremost, S. 744 seeks to eliminate the one-year filing deadline by which all asylum applicants must file their applications in order to be deemed eligible for asylum. For many years, the requirement that an individual must file for asylum within one year of entering the U.S. has deprived many individuals from being granted asylum. Often, individuals fleeing their countries with genuine claims of past persecution suffer from severe trauma, may not have had a formal education, or are unknowledgeable about the legal requirements for asylum. Elimination of the one-year filing requirement would mean that such individuals would no longer be prejudiced based on their lack of knowledge of U.S. immigration laws. Secondly, there would be cause for celebration if the proposed legislation were passed because it would provide certain at-risk persons in removal proceedings with legal counsel. At present, while there is a right to counsel, there is no right to have counsel provided for those in need, which deprives many people facing deportation from relief from removal.
As summed up especially well in a recent Op-Ed by Bill Frelick of Human Rights Watch and law student Brian Jacek, a major challenge faced by many asylum seekers, and one that the proposed Senate bill fails to fully address, is the difficulty asylum applicants have supporting themselves economically while their cases are being reviewed. Many asylum applicants are denied the right to employment while their applications for asylum remain pending, thereby depriving them of the opportunity to support themselves. As Frelick and Jacek explain, the inability to work legally means that many asylum-seekers not only cannot afford attorneys to assist with their cases, but they also are pushed into the informal work sector, rely on assistance from friends or family, or may even end up living on the streets. Unfortunately, S. 744 in its current form would not modify the existing regulations on employment authorization for prospective asylees.
Supporters: Business, Labor, Religious Groups. A striking element of the recent push for immigration reform has been the broad support it has received from many disparate sectors of the American political spectrum. Many sectors such as the hospitality (restaurants, hotels, etc.) and agriculture industries rely heavily on low-wage workers, many of them undocumented, and would benefit from a normalization of their workforce as well as the ability to bring in additional part-time or seasonal workers from abroad. The technology sector, including industry leaders such as Facebook CEO Mark Zuckerberg, has lobbied for increased opportunities to fill positions that they contend are currently vacant due to a lack of qualified American workers. Many labor unions, meanwhile, view the normalization of undocumented workers’ status as an opportunity to increase union membership by organizing newly-legalized RPIs. Such organizers believe that legalization would stem the so-called ‘race to the bottom’ in which U.S. citizens and legal immigrants continually accept cuts to wages and benefits in order not to lose out to their undocumented counterparts. Many religious organizations have also lent their support to the immigration reform push, though (as discussed below) that support could waver if the bill is amended to include extension of sponsorship privileges to bi-national same-sex partners. Finally, comprehensive immigration reform that includes a path to citizenship stands to benefit elected representatives from both major parties, helping to appeal to Latino voters while demonstrating that bipartisan compromise is still possible in a political climate that is often described as just as dysfunctional, ineffective, and broken as the current immigration system itself.
Immigration Restriction Advocates. Immigration restriction and border enforcement advocates such as Jim DeMint and conservative think tank the Heritage Foundation have derided what they refer to as “amnesty,” or any attempt to provide currently undocumented immigrants living in the United States. While it s strongly contested, the Heritage Foundation recently released a report arguing that legalizing the status of the 11.5 million undocumented immigrants currently in the United States will cost the country over $6 trillion over those immigrants’ lifetimes. Because the public’s attention is not yet fully focused on the proposed law, it remains to be seen whether these arguments will gain traction, though a recent reporting suggests that the majority of Americans (76% percent) favor passage of the proposed immigration legislation. If such polling is accurate, it would suggest that there is sufficient bipartisan support to overcome concerns raised by the outspoken critics of immigration reform.
Same-Sex Couples. One of the biggest question marks currently hanging over the current reform effort relates to the status of binational same-sex couples. As reported in Politico, Vermont Senator Patrick Leahy, a Democrat and member of the ‘Gang of Eight,’ has promised to introduce an amendment to the proposed bill that would allow U.S. nationals to sponsor their same-sex partners for permanent residency (a move for which President Obama has also voiced support). In response, according to Politico, Florida Republican Senator Marco Rubio claimed that the amendment “will virtually guarantee that [the bill] won’t pass,” though many Democrats reportedly remain skeptical of that assertion. This, the article continues, is because support might waver or drop off entirely from the Republicans and religious groups upon whose success the bill depends (if the bill fails or only narrowly passes in the Senate, its chances in the House of Representatives are greatly diminished).
The entire question of the status of binational same-sex couples could, however, become irrelevant if the Supreme Court rules that the relevant portions of the Defense of Marriage Act (DOMA) are unconstitutional. In that case, binational same-sex married couples would be entitled to the same federal protections and benefits currently available only to heterosexual couples. In my opinion, failure to include rights for same-sex couples would represent a major flaw in the legislation. Truly comprehensive immigration reform should not exclude U.S. citizens and permanent residents in same sex-relationships from having the right to file petitions on behalf of their spouses.
In summary . . .
There is still a long way to go before S.744 becomes law and some lawmakers, such as Sen. Rubio, are skeptical as to whether or not it will ever be passed as it is currently written. While the proposed bill contains several areas for concern, overall the enactment of S.744 would be an enormous success for immigrants and immigrant rights advocates. Immigrants to the United States have continuously contributed to this country culturally, politically, socially, and economically. Unfortunately, the current immigration system has long been broken, and has not adapted to evolving economic, familial, and humanitarian needs. Immigration reform is in our country’s best interests economically and reform would address the harm and suffering of so many deserving immigrants who seek to remain united with their families or otherwise wish to contribute to the nation in positive ways. The time is long overdue for Congress to enact meaningful immigration reform, and the majority of the provisions contained in the proposed bill would be a huge step in the right direction
 Unless noted otherwise, all quotations are excerpted from the DPCC summary.