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July 2006, Volume 13, Number 3

Senate Approves CIRA

The Senate approved the Comprehensive Immigration Reform Act (S2611) on a 62-36 vote on May 25, 2006. CIRA deals with border enforcement in Title 1, calling for 370 miles of additional fencing on the Mexico-US border, interior enforcement in Titles 2 and 3, including a requirement that all US employers check whether new hires are legally authorized to work in the US, creates a new H-2C guest worker program in Title 4, provides additional immigration visas to reduce the backlog of foreigners waiting for them in Title 5, and allows some unauthorized foreigners to earn immigrant status and eventual citizenship in Title 6.

Enforcement. The CIRA would add 14,000 Border Patrol agents to the current 11,300 over the next five years (for comparison, New York City has about 36,000 police). The Border Patrol had 4,000 agents in 1990, 5,000 in 1995, and 9,000 in 2000.

The CIRA also calls for 370 miles of additional triple-layered fencing, at a cost of $3 million a mile, and 500 miles of vehicle barriers at a cost of $1.3 million a mile. The US now has 75 miles of fence and 50 miles of vehicle barriers along the Mexico-US border.

The Senate approved on a 58-40 vote the Grassley amendment, which requires a new verification system to begin 18 months after CIRA's enactment. Newly hired employees would be required to present a passport, REAL ID driver's license (issued by states after 2008) or immigration documents to employers, who would submit the data to a database to verify Social Security and immigration numbers. DHS would notify employers within three days whether the new hire was authorized to work or not authorized. If there is uncertainty, the worker could be hired until the system is 99 percent accurate.

Workers deemed unauthorized would have 10 days to challenge the DHS determination, and would be considered legal if DHS did not reconfirm unauthorized status within 30 days. The Senate bill includes a provision requiring DHS to reimburse workers if it makes a mistake, such as saying the worker was not authorized when he was.

Employers would face fines of up to $20,000 for hiring illegal workers on a first offense, and could face prison terms if they had a pattern of hiring unauthorized workers (the House bill includes fines of up to $30,000 and prison terms of up to 30 years). The CIRA calls for the number of inspectors enforcing employer sanctions laws to increase from the current 200 to 10,000.

The Washington Post on June 25, 2006 noted that IRCA in 1986 originally included a provision allowing the President to create a national identification system to make sanctions enforcement effective. The Latino caucus attacked this provision as a step on the road toward a police state; the provision was eliminated just before IRCA's final approval due the opposition of Latinos and many others. There is still no agreement on the need for a national ID: the House bill approved in December 2005 includes the statement that nothing in the bill "shall be construed to authorize . . . the establishment of a national identification card."

H-2C Guest Workers. The CIRA would add an H-2C visa guest worker program to current H-1A, H-1B, H-2A and H-2B programs. Employers in any US industry could attest that they need migrants and that the employment of H-2C migrants "will not adversely affect the wages and working conditions of workers in the United States similarly employed" and not lead to the termination of US workers 90 days before and after the H-2C migrants are employed. Foreigners outside the US with job offers from such US employers could pay $500 and obtain six-year work permits.

US employers would set the process of employing H-2C workers in motion by filing job vacancies in a new electronic job registry, offering at least the minimum or prevailing wage "for the occupational classification in the area of employment, taking into account experience and skill levels of employees" (DOL would calculate prevailing wages for occupations). If US workers did not respond to these ads, the employer could issue job offers to foreigners, who would use them to obtain H-2C visas in their countries of origin. Employers in US metropolitan or micropolitan statistical areas with unemployment rates "for unskilled and low-skilled workers during the most recently completed six-month period [that] averaged more than 11 percent" could not hire H-2C workers.

H-2C guest workers could change employers if they receive a job offer from another US employer who has completed the attestation process, a provision aimed at protecting migrants from exploitation. Employers of H-2C visa holders could apply for immigrant visas on behalf of their guest workers after one year, and H-2C visa holders could apply for immigrant visas on their own after four years of US work and knowledge of English and civics. The US Department of Labor would have to certify that there were no US workers available to fill the jobs for which immigrant visas for H-2C workers were sought.

The Kyl amendment, which would have required H-2C workers to return to their countries of origin rather than receive immigrant visas, was defeated 58-35.

The number of H-2C visas was initially set at 325,000 a year, to be raised by 20 percent immediately if all H-2C visas are allocated within the first quarter of the fiscal year (to 390,000); this would make the ceiling for the next fiscal year 468,000 and 970,000 in the seventh year. If H-2C visas were exhausted in the second quarter, an additional 15 percent the fiscal year's visa ceiling would be made available immediately, and the annual ceiling would be raised by 15 percent for the next year; if exhausted in the third quarter, the factor would be 10 percent. If H-2C visas are not used up, the ceiling for the next year would be reduced by 10 percent.

During Senate deliberations, the starting number of H-2C visas was reduced to 200,000. A 10-member Temporary Worker Task Force will study the effects of this numerical limit on H-2C migrants.

H-2C workers can lose their status if unemployed more than 45 days in the US. Scott Silverman, CEO of Applied Digital, proposed using the VeriChips that are about the size of a grain of rice and already implanted in some hospital patients to monitor guest workers. Silverman said migrants could be scanned by immigration officials and private employers with readers to verify their identification and work status, and that the chips could include tax and medical records: "our technology [is] one of several the legislators can choose to be the technology platform for [verification in] the guest worker program."

The VeriChip tag was approved for human use by the Food and Drug Administration in 2004. Colombian President Alvaro Uribe, seeking new markets for guest workers, reportedly suggested implanting microchips in Colombians going abroad to allow host governments to monitor them.

The CIRA would allow foreign students to work off campus for employers who attest that they tried to recruit US workers at least 21 days to fill the vacant job at the prevailing wage. Foreign students would be allowed to work 20 hours a week during the school term and 40 hours a week during vacations.

Legalization. CIRA has three legalization programs to deal with the 11 to 12 million unauthorized foreigners estimated to be in the US. The compromise embraced by a majority of Senators divides the nonfarm unauthorized into three groups based on their length of time in the US.

The estimated seven million unauthorized foreigners in the US at least five years before April 5, 2006 could become "probationary immigrants" by proving they worked in the US, paid back taxes and a $1,000 fee, and passed English and background tests. At the end of six more years of US work and tax payments, plus another $1,000 fee, they could apply for immigrant visas, although they would have to go to the back of the immigrant visa queue to wait for green cards (total fees were raised to $3,250 during Senate deliberations).

The estimated three million unauthorized foreigners in the US two to five years could receive a three-year Deferred Mandatory Departure status if they satisfied the same fee, tax and English requirements. In addition, they would have to return to their countries of origin within three years and re-enter the US legally. These unauthorized foreigners could apply for readmission before they leave the US, and the "touch back" requirement could be waived if it caused "substantial hardship" to the foreigner.

The Congressional Budget Office estimated that two-thirds of the more-than-five year unauthorized, some 4.5 million people, and half of the two-to-five year foreigners, perhaps 1.5 million, would legalize.

Finally, the two million unauthorized foreigners in the US less than two years would be expected to depart, although they could return legally to their US employers with H-2C visas. The usual bars on legal re-entry would be waived for these unauthorized foreigners (those illegally in the US six to 12 months are usually barred from legal re-entry for three years, and those illegally in the US more than 12 months are barred from legal re-entry for 10 years).

On a 50-49 vote, the Senate allowed unauthorized foreigners who later become legal immigrants to receive Social Security credit for the work they did while unauthorized if the appropriate taxes were paid, defeating the Ensign amendment. The Senate also defeated the Isakson amendment, 40-55, which would have delayed legalization and guest worker programs until DHS certified that US borders were secure, and instead approved the Salazar amendment 79-16, which allows legalization and guest worker programs to go into effect when the president determines that they are in the national interest.

Senator Diane Feinstein (D-CA) proposed replacing the three-tiered legalization program with a single program for unauthorized foreigners in the US before January 2006. Feinstein's proposal, rejected on a 61-37 vote, would have allowed unauthorized foreigners to register and pay a $2,000 fine plus back taxes, undergo background checks and prove they were in the US before the cut off date in order to receive a six-year orange card that could lead to an immigrant visa.

The third legalization program is the Agricultural Job Opportunity, Benefits, and Security Act (AgJOBS), which allows up to 1.5 million unauthorized foreigners who did at least 150 days or 863 hours of farm work during the 24-month period ending December 31, 2005 to pay $500 and obtain blue-card temporary resident status. The required farm employment can be verified with pay stubs, tax filings, contracts, etc, and the legalization program would run for five years.

Blue-card holders who perform at least 100 days of farm work each year during the five-year period beginning on the date of enactment, or at least 150 work days each year in a three-year period after enactment, could become legal immigrants (a work day is at least 5.75 hours). While in blue-card status, foreigners could also do nonfarm work, travel legally in and out of the US, and get work authorization for their spouses, who would not have to work in agriculture, as well as legal status for their minor children in the US.

Blue-card holders would be removable if they did not do the required farm work, but when they completed the qualifying farm work, they could get immigrant visas outside the overall ceiling of 675,000 a year. The country numerical limitations for Mexico, India, China and the Philippines would also be waived to expedite their adjustment to immigrant status.

Senator Saxby Chambliss (R-GA) led the fight against AgJOBS, asserting that "amnesty is not in the best interests of agriculture...we know from past experience that agricultural workers do not stay in their agricultural jobs for long, especially when they gain a legal status and have the option to work in less back-breaking occupations." A Chambliss amendment to increase the work requirement to obtain a blue card failed 62-35. A Hutchison amendment to create a Canadian-style seasonal worker program for guest workers in the US up to 10 months each year without their families failed 31-67.

The CIRA includes the DREAM Act, which would allow unauthorized foreigners present in the US before age 16 and at least five years before enactment, and who graduated from a US high school, to obtain a six-year conditional immigrant status. After earning a two-year associate degree or four-year BA or serving in the Armed Forces, this conditional immigrant status would become a regular immigrant status after six years.

The Senate voted to prevent foreigners convicted of a felony or three misdemeanors from receiving any of the benefits granted under CIRA, including barring those who had received a final order of deportation from legalization. A Sessions amendment to clarify that unauthorized foreigners could not get the Earned Income Tax Credit on the wages they earned while unauthorized (the EITC provided $39 billion to 22 million households in 2005, an average $1,700), and no EITC benefits until they became naturalized US citizens, was defeated on a 60-37 vote. However, an Ensign amendment that does not allow those legalizing to obtain EITC credits on their past earnings while in illegal status was approved 50-47.

Senate-English. The Senate voted 63-34 to designate English as the national language of the US (Inhofe amendment), and 58-39 to declare English "the common and unifying language of the United States" (Salazar amendment). Both amendments preserve President Clinton's executive order 13166 (2000), which requires government agencies and recipients of federal funds to make efforts to provide services and information in other languages to persons not proficient in English

During the debate, many senators raised questions about the immigrant absorptive capacity of the US. Senator Lamar Alexander (R-TN) asked: "how many new people can we allow to come into our country and still make sure they become Americans?" He continued: "A lot of the uneasiness and emotion over this immigration debate is from Americans who are afraid we are going to change the character of our country."

Austan Goolsbee on June 22, 2006 cited several studies that found it more difficult to learn a foreign language after age 11 or 12. Young children with non-English speaking parents who arrive in the US at age five or six learn English much faster than their older siblings.

The CIRA calls for some of the fees paid by legalizing foreigners to be used to reimburse state and local governments for the costs associated with providing services to newly legalized foreigners, including health and education. In 1986, the federal government provided $4 billion to state and local government costs, about $1,500 for each of the 2.7 million foreigners legalized.

The Senate approved the Gregg amendment, 56-42, which calls for two-thirds of the 50,000 diversity visas available in the lottery each year to go to foreigners with advanced degrees. Currently, those receiving immigrant visas in the lottery must have at least high school diplomas.

The CIRA would increase the cap on the number of employment-based immigration visas from 140,000 (workers and their families) to 450,000 (workers only) for 10 years, adding 310,000 visas a year in an effort to make more visas available to low-skilled immigrants. In addition, some spouses and children now included under the cap will be exempt, but employment-based principals and their family members would be limited to 650,000 a year. CIRA would reserve at least 200,000 employment-based immigrant visas a year for H-2C "essential workers" and their families.

Employers seeking immigrant visas for foreigners must have DOL certify that US workers are not available. Certification entails, for instance, attempting to recruit US workers by offering at least the prevailing wage. CIRA would require DOL to issue prevailing wage determinations for occupations within 20 days of an employer's request, or the employer would be allowed to set the prevailing wage without DOL input. In most cases, Occupational Employment Statistics will be used to determine prevailing wages--

Some 27 million US citizens make 130 million crossings a year between the US and Canada and Mexico. About 25 percent of US citizens have passports; some 10 million were issued in FY05. CIRA authorizes the US government to issue Passport Cards costing less than $34 for US citizens to facilitate travel to Canada and Mexico, with the cards free to those under 18.

Bush. President Bush on April 24, 2006 endorsed the earned legalization included in CIRA, saying "A person ought to be allowed to . . . pay a penalty for being here illegally, commit him or herself to learn English, which is part of the American system, and get in the back of the line for citizenship." Bush said he was seeking "the rational middle ground" in the immigration debate that recognizes "differences between an illegal immigrant who crossed the border recently, and someone who has worked here for many years, who's got a home, a family and a clean record."

President Bush made his first speech on domestic policy from the Oval Office on May 15, 2006. In an effort to win over conservatives who want an enforcement-first approach to immigration reform, Bush called for 6,000 National Guard troops to bolster the Border Patrol at the Mexico-US border. Before Bush spoke, there were 200 National Guard troops assisting the Border Patrol. Bush had Guard troops spend their annual two to three week training periods at the border in 2006, and placed them under the control of the border-state governors. The federal government is covering the $1.9 billion cost of moving National Guard training to the border.

During a June 1, 2006 speech to the US Chamber of Commerce, Bush emphasized the importance of enforcing employer sanctions laws, saying that "unscrupulous" employers abet illegal migration by knowingly hiring unauthorized workers. Bush also said that current penalties are too low, since an employer failing to check an employee's identification faces a fine as low as $100, and knowingly hiring an illegal migrant can result in a fine as low as $250.

Bush made several campaign-style trips to bolster support for immigration reform, including a stop in Omaha on June 7, 2006 where he urged immigrants to learn English and history and civics to assimilate and "help us remain one nation under God." Bush created a DHS task force to encourage businesses, through public-private partnerships, to offer English language and civics classes to immigrant employees.

House. The House in December 2005 approved an enforcement-only bill, HR 4437, and lead author Representative F. James Sensenbrenner Jr. (D-WI) said it would be difficult to resolve differences between the House and the Senate bills. Sensenbrenner, chair of the House Judiciary Committee, said that neither he nor House Republicans would support amnesty, but noted that many House Republicans support a guest worker program.

Sensenbrenner was quoted on May 27, 2006 as saying: "A guest worker program can be on the table if it does not include amnesty, but only if increased border patrols are effective....With the border controls and the enforcement of employer sanctions, the jobs for illegal immigrants will dry up. And if you can't get a job because employer sanctions are enforced, my belief is that a lot of the illegal immigrants will simply go back home."

Bush in July 2006 signaled that he was willing to consider an enforcement-first approach, with guest worker and legalization programs "triggered" when specific border security goals had been met. For example, such programs could begin when the government certified that the employer sanctions system instantly determined whether newly hired workers were authorized to work at least 99 percent of the time.

To enact an immigration reform law, differences between the House and Senate bills must be reconciled in a conference committee, and the result must be approved by each chamber. House Republicans follow a "majority of the majority" policy, meaning that they do not allow votes on bills not supported by a majority of Republicans. Most House Republicans oppose legalization.

The House (and Senate) held hearings around the US on immigration, postponing a conference committee to Fall 2006. A White House-backed coalition, Americans for Border and Economic Security, was terminated in June 2006.

Representative Mike Pence (R-IN) proposed an enforcement and guest worker plan in June 2006 that was first broached by the Krieble Foundation Under Pence's proposal, US recruiters licensed by the US and local government would be authorized to issue W-guest worker visas to foreign workers outside the US in response to employer requests for workers, and the selected migrants would receive secure ID cards to enter and work. The program would be financed with fees paid by employers and migrants, and migrants would be encouraged to return to their countries of origin by refunds of their social security contributions.

There was finger-pointing in Washington about which party was responsible for making "unlawful presence" in the US a crime in the House bill. Entering the US illegally is a crime, but being illegally in the US is a civil violation of immigration laws. Foreigners who arrive legally and then overstay their visas are normally ordered to leave but not subject to fines and prison terms.

In 2005, the Bush administration urged Sensenbrenner to propose making illegal presence in the US a crime. He went one step farther, making it a felony in the House bill, subject to a year and a day in prison. Democrats opposed making illegal presence a felony, and Sensenbrenner agreed to reduce illegal presence to a misdemeanor, thus avoiding the need to have public defenders for those charged. For tactical reasons, most Democrats and some Republicans voted against reducing the crime and penalty. The Democrats did not want illegal presence to be a crime, and the conservatives wanted it to be a felony crime, so that Sensenbrenner's original language remains in the House-enacted bill.

Republican Brian P. Bilbray, an ex-lobbyist for the restrictionist group FAIR, got 49 percent of the vote to replace ex-Rep Randy Cunningham (R-CA) in a House special election in June 2006. Bilbray said that his support increased when he emphasized that he disagreed with President Bush and the Senate CIRA.

Representative Tom DeLay (R-TX) resigned from the House on June 9, 2006, and three Democrats introduced a bill to raise the minimum wage in the Northern Marianas from $3.05 to the federal $5.15 and require the Marianas to follow US immigration law. Jack Abramoff lobbied for the Marianas, and DeLay blocked efforts to raise minimum wages there and to reduce the importation of Filipino and Chinese guest workers who sew garments labeled "made in USA." The Senate approved bills to apply US labor and immigration law to the Marianas several times, but they were blocked in the House.

Economic Effects. The Pew Hispanic Center estimated that there were 7.2 million unauthorized workers in March 2005, including 2.5 million or 35 percent who arrived in the US between 2000 and 2005. With the number of unauthorized workers increasing by an average of 500,000 a year, about six million unauthorized workers may be eligible for legalization or guest worker status under the Senate's nonfarm legalization program, and another 1.5 million may qualify under the AgJOBS provisions.

The economic effects of legalizing 7.5 million foreigners may include wage increases. After legalization in 1987-88, wages for the newly legalized rose 10 to 15 percent. The earnings of unauthorized workers vary by occupation and length of time in the US; most earned $400 to $600 a week in 2005, or $10,000 to $25,000 a year (many unauthorized workers do not work full time). A 15 percent wage increase for a $15,000 a year worker is $2,250.

Most unauthorized workers have payroll taxes deducted from their wages for social security and income taxes. Legal status may increase net earnings and income in several ways. First, legalized workers may be able to obtain unemployment insurance payments, which in states such as California can be half of seasonal earnings. Second, legalized workers may be able to claim the Earned Income Tax Credit if they have children, which can result in a payment of $3,000 for a worker earning less than $20,000 with two children. Third, legalized parents may seek benefits such as Medicaid and Food Stamps, especially for eligible children, increasing the family's total income.

Legalized foreigners would be able to travel in and out of the US. Many may move their families to the US and reduce remittances to Mexico. The AgJOBS program explicitly protects family members during the six-year probation period to immigrant status, and there are likely to be family fairness polices similar to those of the early 1990s that protected family members of newly legalized foreigners from removal.

The Congressional Budget Office estimated that legal immigration would increase by 20 million over a decade if the CIRA were enacted; other estimates predicted far more additional immigration. Federal revenues were projected to increase by $66 billion, and federal costs by $50 billion, if 11 million now unauthorized foreigners became legal residents by 2016 and eight million guest workers entered the US.

Austan Goolsbee, "Legislate Learning English? If Only It Were So Easy," New York Times, June 22, 2006. James Pinkerton, "Immigrant advocates decry microchip idea," Houston Chronicle, June 3, 2006. Nicole Gaouette, "Long Path to Immigration Deal," Los Angeles Times, May 27, 2006. Charles Babington, "Immigration Issue Splits the GOP," Washington Post, May 27, 2006. "Chambliss says immigration compromise puts more emphasis on amnesty than on border security," The Weekly (Duluth, GA), May 26, 2006.