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April 2006, Volume 12, Number 2

Senate: No Agreement

The Senate debated immigration reform in March-April 2006, but had not approved a bill when the sessions recessed on April 7. There appeared to be majority support for a bill that would step up enforcement and offer an "earned legalization" path from unauthorized to legal immigrant and naturalized US citizen for those in the US at least five years, but the vote to approve a compromise that would have divided unauthorized foreigners into three groups for legalization failed 38-60 on April 7, 2006. An alternative enforcement-only bill failed on a 36-62 vote.

The compromise that divides unauthorized foreigners into three tiers was returned to the Senate Judiciary Committee, which promised to resume work in late April 2006.

The two major bills reflected the divisions within Congress over the best strategy to deal with unauthorized foreigners. The bill offered by Judiciary Chair Arlen Specter (R-PA) and approved in late March 2006 by the Senate Judiciary Committee on a 12-6 vote (the Committee's eight Democrats, but only four Republicans, supported the bill) would increase enforcement and offer a path to legal status for unauthorized foreigners in the US. A competing bill by Senate Majority Leader Bill Frist (R-TN) would increase enforcement to prevent unauthorized migration and assume that attrition would reduce the number of unauthorized foreigners here.

The Committee bill was considered "comprehensive" because it dealt with enforcement and unauthorized foreigners in the US, while the Frist bill was considered an enforcement-only bill similar to that approved by the House in December 2005.

The Committee bill would increase border enforcement by adding agents, fences and technology on US borders and step up interior enforcement by creating a new system under which employers would have to check the legal status of new hires against a federal database within five years of enactment; there would be an additional 10,000 internal enforcement agents. The Frist bill similarly includes more border and interior enforcement measures.

The Cornyn-Kyl and McCain-Kennedy proposals of 2005 outlined the differences that were reflected in the Senate debate. McCain-Kennedy would have established a path to legal immigrant status for unauthorized foreigners in the US with jobs, while Cornyn-Kyl would have required unauthorized foreigners to return to their countries of origin after six years of legal US work.

The Committee bill adopted the McCain-Kennedy approach. Three provisions deal with unauthorized foreigners in the US and future guest workers. Under the earned legalization proposal, foreigners illegally in the US could pay a $1,000 fee, undergo background checks, and pay any income taxes owed on their earnings before receiving three-year renewable work visas; they could also obtain visas for their family members. During their fourth year of legal US work, McCain-Kennedy guest workers could begin a five-year transition to legal immigrant and naturalized citizen status (after 11 years) that would involve paying a $2,000 fine, passing English and security tests, and paying any back taxes owed.

In a last-minute effort to achieve 60 votes, the Committee bill was amended to separate unauthorized foreigners in the US into three groups. The seven million in the US at least five years would have to work at least six more years as legal guest workers to earn an immigrant status, as laid out in the McCain-Kennedy proposal. The three million in the US two to five years would have three years to go to a port-of-entry (POE), be fingerprinted and photographed, and re-enter legally as guest workers with three-year renewable guest worker visas. Only unauthorized heads of households would have to report to POEs, and their family members in the US would be covered by the head's legal status.

The estimated 1.5 million who came to the US after January 7, 2004, when President Bush delivered a speech outlining his vision for immigration reform, would not be eligible for earned legalization.

Unauthorized foreigners would register with DHS and present proof of the length of their US residence.

There would also be a new guest worker program offering up to 325,000 visas for nonfarm workers a year, with the number adjusted based on US labor market conditions. One amendment would have required DHS to certify that the border was secure before any new guest worker visas could be issued.

The second guest worker program in the Committee bill is the AgJOBS bill, slightly amended at the behest of Senator Diane Feinstein (D-CA). Up to 1.5 million unauthorized farm workers who did at least 150 days of farm work during the 24-month period ending December 31, 2005 could apply for blue-card temporary resident status over five years. Blue-card holders could get work authorization for their spouses, who would not have to work in agriculture, and their minor children could legalize their status in the US.

To earn an immigrant status, blue-card holders would perform agricultural work at least 100 work days a year for five years or at least 150 days a year for three years. Unauthorized farm workers would have to pay application fees as well as fines of $100 for a blue card and $400 for an immigrant visa, pay income taxes and have fewer than three misdemeanor convictions and no US felony convictions. There would also be changes to the existing H-2A guest worker program that allow, for the first time, the dairy industry to employ H-2A workers in year-round jobs.

Perhaps seven million workers and three million family members could benefit from these earned legalization proposals. State and local governments could deem these new nonimmigrants ineligible for public assistance.

There would also be changes to the immigration system. The Committee bill would increase the number of employment-based immigrant visas from 140,000 to 290,000 a year (the increase in employment-based visas would be much larger because the family members of those receiving visas would no longer count against the cap and some types of employment visas would not count against the cap). Of the 290,000 visas, 15 percent each would go to priority workers (outstanding scientists and corporate managers) and professionals with advanced degrees; 35 percent would go to skilled workers, defined has having a college degree or equivalent work experience; and 30 percent to unskilled workers, a large increase from the current 10,000 a year. The remaining five percent of visas would be for investors.

New F-4 student visas would allow foreigners earning advanced degrees in math, engineering, technology or the physical sciences to stay in the United States for a year after they graduate to look for work. If they got a job, they would be allowed to get immigrant visas outside of current ceilings after paying a $1,000 fee and passing security clearances. The number of H-1B visas would be increased from 65,000 to 115,000 a year, and adjusted upward by 20 percent in any year in which the ceiling is reached before the end of the fiscal year.

Perspective. Three groups played significant roles in the immigration debate: those who want to stop illegal immigration, employers who want to legalize the employment of unauthorized workers, and church and ethnic groups that want to legalize unauthorized foreigners.

President Bush seemingly endorsed the Judiciary Committee bill by calling for comprehensive reform that includes enhanced border controls, more internal enforcement, and a guest worker program to provide "a legal way to match willing foreign workers with willing American employers to fill the jobs that Americans are unwilling to do." However, Bush opposed earned legalization that leads to immigrant status, saying it "would be unfair, because it would allow people who break the law to jump ahead of people like you all, who play by the rules." Bush urged a "civil" debate on immigration, so that one group is not pitted against another.

According to exit polls, Bush received 45 percent of the Hispanic vote in 2004, up from 38 percent in 2000, and some Republicans worry that the debate over immigration could erase Republican gains among Hispanics. However, conservative Republicans such as Senator Johnny Isakson (R-GA) echoed their counterparts in the House in opposing guest workers. Isakson said he would not support a guest worker program until "we have proven without a doubt that our borders are sealed and secure." House Judiciary Committee Chairman Rep. F. James Sensenbrenner Jr. (R-WI) urged the Senate not include a guest worker program in any immigration reform bill. He said: "A guest-worker program that applies to illegal aliens already here is an amnesty" that simply postpones the decision on what to do about unauthorized foreigners for three to six years.

Representative Tom Tancredo (R-CO), leader of the House Immigration Caucus, was widely credited with persuading the House to adopt an enforcement-only bill. Appearing frequently on TV and talk radio, Tancredo has become a hero to some of the Americans who want more done to reduce illegal migration. Tancredo charges that business has become "addicted to cheap labor," and opposes efforts to legalize currently unauthorized workers as guest workers.

However, House majority leader Representative John A. Boehner (R-OH), one of 17 Republicans who opposed Sensenbrenner's December 2005 bill, called the Sensenbrenner employment verification provisions "a huge unfunded mandate on employers." Boehner said his position on immigration cost him votes in his quest to become majority leader.

Two provisions of the Sensenbrenner bill, making illegal presence in the US a felony and making it a federal crime to assist unauthorized foreigners, aroused strong opposition and spurred large demonstrations around the US. Some 300,000 people protested in Chicago on March 10, 2006, and 500,000 in Los Angeles March 25, 2006. Tens of thousands of students in Los Angeles-area high schools, inspired by Spanish-language radio hosts, walked out of classes, some waving Mexican flags, during the week of March 27, 2006 as the Senate debated immigration reform.

The size of the demonstrations surprised organizers, prompting some to say that legalizing unauthorized foreigners is a major civil rights issue of the 21st century. Supporters of the National Day of Action for Immigrant Justice on April 10, 2006 urged protestors to carry American flags.

The Catholic Church played a major role in organizing these marches and Los Angeles Cardinal Roger M. Mahony in March 2006 echoed the calls of many of the 65 million US Catholics by calling on Congress to legalize unauthorized foreigners, strengthen public opinion about the positive contributions of immigrants and use Catholic legal service networks to assist migrants. The Catholic campaign is rooted in a 2003 joint pastoral letter on immigration by US and Mexican bishops titled, "Strangers No Longer: Together on a Journey of Hope."

To counter the demonstrations in favor of legalization, Minuteman volunteers launched a month-long campaign on the Arizona border to call attention to continuing illegal migration.

The House bill's provision that 700 miles be added to the fence on the US side of the border with Mexico elicited strong protests in Mexico and Central America. Foreign ministers from 11 Latin American countries met in Cartagena in February 2006 and agreed to oppose plans to build the additional border fencing.

The New York Times on April 9, 2006 interviewed several farmers who said that they preferred guest workers to legal immigrants. Mike Gonya, a farmer with 2,800 acres of wheat and vegetables near Fremont, Ohio said: "The illegals are probably better workers than the legal ones. The legal ones know the system. They know legal recourse. The illegal ones will bust their butts."

Abby Goodnough and Jennifer Steinhauer, "Senate's Failure to Agree on Immigration Plan Angers Workers and Employers Alike," New York Times, April 9, 2006.

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