AMERICA'S VOICE RESEARCH ON IMMIGRATION REFORM

Highlights and “Lowlights” of the Bipartisan Senate Immigration Bill

Published: 05/07/2013

June 27, 2013 

Also view Spanish-language version here

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) is a bipartisan bill with many excellent provisions, and others of concern.  Following are highlights and “lowlights.”

Highlights and “Lowlights” of the Bipartisan Senate Immigration Bill

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S. 744) is a bipartisan bill with many excellent provisions, and others of concern.  Following are highlights and “lowlights.”

Highlights

Most undocumented immigrants in the country today can get on a road to citizenship, starting with Registered Prospective Immigrant (RPI) status.  Some immigrants will have an accelerated path to citizenship.

After 10 years in RPI status, formerly undocumented immigrants can apply for green cards.  Once they have green cards, their wait for citizenship is shorter than the traditional process (3 years versus 5 years).

Families can apply for immigration status together, saving money on expensive fines. If one person loses his or her status, other family members can remain on the path to citizenship.

Applicants will have the option of paying their fees on an installment plan, making the process much more affordable to low-income families.

Depending on how the provisions are implemented, homemakers, retirees, day laborers, and other deserving immigrants with different circumstances can apply.

Information contained in applications is kept confidential, and employers are encouraged to help immigrants meet documentation requirements.

If DHS denies an application for RPI status, the immigrant has the right to judicial review.

Certain groups of long-term residents have a streamlined path to citizenship:

  • Anyone here lawfully for 10 years (such as individuals with TPS or DED) are eligible for green cards starting 2014, and citizenship after 3 more years
  • Participants in the Deferred Action for Childhood Arrivals (DACA) program can have their applications for RPI status expedited
  • DREAMers who have received degrees can apply for green cards within 5 years, and citizenship immediately thereafter; DREAMers who serve in the armed forces will have access to the accelerated path to citizenship the military currently provides. There is no age cap at time of application.  DREAMer fines are also reduced
  • Farmworkers can participate in a special “blue card” program with lower fines and a 5 year path to legal permanent residency, if they continue to work in agriculture

A limited group of immigrants who were deported may return to their families in the U.S. under a discretionary waiver: DREAMers, and parents or spouses of U.S. citizens or legal permanent residents.

Eligible immigrants who face deportation between the day the bill becomes law and the day the RPI program is up and running will still have a chance to apply.

Provisions will help many families reunite after years of separation and allow some families to remain together in the future.

Right now, some immigrants have to wait several years or even decades to reunite with loved ones in the United States.  This bill allows everyone waiting in line for a family or employment-based visa to immigrate within the next 8 years.

Children and spouses of legal permanent residents can apply for green cards without delay.

Other immigrants in line for a family-based visa can wait in the U.S. rather than abroad.  They can also work to help support their families while in the U.S., as can the spouses of H-1(b) visa holders.

A new work-based visa program will replace unauthorized migration with legal workers who have labor rights and a path to citizenship.

The bill creates a W visa for individuals seeking work in the service sector, hospitality, construction, and other industries excluded from existing visa programs.

The W visa program includes labor protections for immigrant and U.S. workers, including wage standards, workplace safety requirements, recruitment requirements, and whistleblower protections.

W workers have the right to change jobs and apply for green cards.  Their families can come with them to the U.S and work.  

The bill will add other key labor protections into law.

It takes away key incentives for employers to hire and exploit undocumented immigrants, by giving them the right to back pay if they are unjustly fired and by protecting whistleblowers.

New labor protections are built into agriculture visa programs to ensure workers are treated fairly.

While making E-Verify mandatory for all employers, the bill does include important due process protections for workers who are incorrectly labeled unauthorized to work.

Some provisions begin to restore fairness for immigrants after years of punishing policies that eroded rights and opportunities.

Immigrants in detention will have the right to request release from a judge in a timely manner, and judges are encouraged to consider alternatives to detention.  ICE is required to limit its use of solitary confinement of immigrants in detention.

The bill gives judges discretion to dismiss deportation cases against longtime residents who meet very limited criteria.

When parents are caught in immigration enforcement, DHS will be required to consider the well-being of their children when considering whether to deport them.

Children, mentally disabled individuals, and other extremely vulnerable people in deportation proceedings will finally have a right to government-paid counsel, as needed.

The bill will codify, expand, and fund Legal Orientation Programs for immigrants in deportation proceedings.

The bill will eliminate the arbitrary one year filing deadline for asylum, strengthening our nation’s commitment to protecting refugees.

Tougher penalties for “notario fraud” will help protect immigrants from unscrupulous “advisors” whose handiwork can jeopardize their immigration status.

The bill repeals a section of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that made it more difficult for public universities to offer in-state tuition rates to undocumented residents.

 

Lowlights

The bill will result in massive—and massively unnecessary—militarization of the southern border.

The border is more secure than ever. Regardless, the original S. 744 already included substantial increases in border funding, personnel and technology. The Corker-Hoeven amendment to the bill dramatically increases enforcement, constituting militarization of the southern border.

The bill as it currently stands (with the addition of the Corker-Hoeven amendment) would effectively double the number of Border Patrol agents to 38,405 along the southern border within ten years. It would require the completion of 700 miles of fencing across the southern border. And it would allocate $46.3 billion to DHS to implement these requirements and to acquire more cameras, towers, drones and other technology. This militarization will place a massive burden on border communities and will likely result in civil-liberties violations.

Furthermore, the bill requires that the expansion of Border Patrol and completion of fencing—along with other enforcement requirements, such as the implementation of E-Verify—be completed before key steps in the legalization process can begin.  The so-called “triggers” are a stunt that plays politics with peoples’ lives, without a policy rationale.

Some deserving immigrants will be blocked from Registered Prospective Immigrant (RPI) status, green cards, and citizenship.

Every day until the bill is passed, people who would be eligible for RPI status will be deported.

The December 31, 2011 cut-off date for RPI status means that hundreds of thousands of immigrants who came in 2012 and 2013 will be left out.

The process will be expensive—in some cases, prohibitively so—for low-income workers and their families.  While immigrants can pay in installments, the principal applicants will pay $2000 in fines over the course of the program, plus application costs and administrative fees for themselves and their family members.  Application costs for the whole process could total $1000 or more per individual.

Due to the program’s extensive requirements, immigrants will need time to pull together the documents, money, and legal assistance necessary to file a complete application.  The bill gives them only one year to do all of this, with an optional 18 month extension.

Criminal bars to legal status are more extensive even than current law, which already rejects individuals based on minor, decades-old offenses.

Individuals with RPI status are held to a higher standard to receive a green card than other applicants.  They have to show they are pursuing a course of study in English and U.S. history, or show they are already proficient. Currently, an English language requirement is part of the citizenship process, not legal permanent residency.

For some of these requirements, waivers are available for immigrants who cannot meet them due to hardship or other circumstances.  However, the bill puts strict limits on who can apply for a waiver, and the implementation process may go even further—barring good people who deserve flexible consideration. This is of special concern for immigrants applying for waivers with criminal records, who will have to wait for DHS to find the victims of their crimes and “consult” them before granting waivers.

Deported parents and siblings of DREAMers and others who obtain RPI status are unable to get a waiver and reunite with their families in the United States.

The intent of this program should be to reach as many people as possible so that we start with a clean slate, not make the process so difficult and expensive that many remain in the shadows.

In some cases, political considerations trump policy goals.

The border is more secure than ever, and the resources and strategies in this bill will tighten it even more.  However, the bill requires implementation of border and other enforcement elements before key steps in the legalization process can begin.  The so-called “triggers” are a stunt that plays politics with peoples’ lives, without a policy rationale.

Individuals with RPI status are required to pay taxes and purchase health insurance under the Affordable Care Act, but they are barred from affordable health care options and safety-net benefits.

Legalized immigrants will not receive Social Security credit for taxes they paid while undocumented—even though they have already paid into the system for years while working under the table, they will never be able to receive the benefits for their contributions they have earned.

The bill eliminates some immigration avenues that promote diversity and family unity, without adequately replacing them in other programs.

Current laws that trigger deportation or bar an immigrant from legal status based on criminal conduct are quite extreme, and judges have little to no discretion to block deportations even in the most compelling situations.  The new bill expands the list of offenses that carry such grave and permanent consequences.  Convictions for illegal re-entry and document fraud can exclude ordinary undocumented immigrants from legalization.  The government will have even broader authority to define gang activity, DUI, and domestic violence crimes in a way that harms innocent people and crime victims, instead of focusing on the truly bad actors.

The bill retains several injustices in the current immigration enforcement system, such as the overly-broad definition and extreme treatment of individuals with so-called “aggravated felony” convictions (which do not have to be “aggravated” nor actual felonies to trigger deportation); continuation of the flawed Secure Communities program; and the operation of a massive immigration detention system that is supposed to be civil in nature, but is criminal in design.

 

FOR MORE INFORMATION

American Civil Liberties Union (highlights and lowlights of bill as marked up) May 2013

America’s Voice Education Fund (top changes to bill in markup) May 2013

Alliance for Citizenship (10 questions and answers) April 2013

American Immigration Lawyers Association (section by section) April 2013

America’s Voice Education Fund (list of resources) April 2013

National Council of La Raza (FAQs in English and Spanish) April 2013

National Immigrant Justice Center (the good and the bad) April 2013

National Immigration Law Center (overview and analysis; in-depth analysis: Title I border; Title II legalization and future immigration; Title III interior and workplace enforcement) April 2013

Rights Working Group (analysis of profiling provisions) April 2013

 

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