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April 2013, Volume 19, Number 2

Immigration Reform: Senate

On January 28, 2013, a bipartisan group of eight senators released four "principles" to guide comprehensive immigration reform. They included a "tough but fair path to citizenship" for unauthorized foreigners in the US, a plan to attract and keep more of the world's "best and brightest" foreign graduates of US universities, a requirement that employers check the legal status of newly hired workers against government databases (mandatory participation in the E-Verify system) and new guest worker programs.

Under the immigration reform bill developed by the Senate's Gang of Eight, unauthorized foreigners in the US before December 31, 2011 who registered, underwent background checks, and paid back taxes and fines would receive a "probationary legal status" that would allow them to live and work legally in the US. After 10 years, probationary immigrants could apply for immigrant visas or green cards. After three years as an immigrant, they could apply to become US citizens (the normal wait between immigrant and citizen, currently five years, would be reduced to three years for all immigrants).

Democrats insisted on a path to eventual US citizenship for unauthorized foreigners, while Republicans insisted that unauthorized foreigners who receive probationary status could not become immigrants and US citizens until new enforcement measures were in place and current backlogs of foreigners waiting for immigration visas are eliminated (probationary foreigners would "go to the back of the line" for immigrant visas). Unauthorized foreigners brought into the US as children, and those employed in agriculture, would have separate and easier paths to legal immigrant status and eventual US citizenship.

The Senators' goal is to win Senate approval of a comprehensive immigration reform bill by August 2013. The bipartisan Senate bill, unlike the 2007 reform proposal that was expected to cost $18 billion over a decade, is expected to be revenue-neutral, collecting as much in fines and fees as it costs in additional enforcement and other items.

Three issues loomed as points of contention. First, do currently unauthorized foreigners receive a probationary legal status immediately, as with youth under the DACA program, or must certain "enforcement benchmarks" be satisfied before unauthorized foreigners can receive work permits and protection from deportation? Second, what would probationary immigrants have do before they could become immigrants, that is, what fees and tests would be required of them? Third, what new or expanded guest worker programs would be included, the so-called "future flows" issue?

The most likely scenario has unauthorized foreigners registering and receiving a legal status within six months after the enactment of an immigration reform law. During the first six months after enactment, DHS would have to submit a border security plan; after it is submitted, the registration of unauthorized foreigners could begin.

After at least 10 years, and once the entire Mexico-US border is under surveillance, and at least 90 percent of those who cross the border illegally in high-risk areas are being apprehended, unauthorized foreigners with a probationary status could apply for regular immigrant visas. The 90 percent enforcement-effectiveness rate depends in part on the total number of illegal crossings, which in turn depends on agent sightings, camera monitoring and referrals from "other credible sources."

The AFL-CIO and the US Chamber of Commerce in March 2013 proposed a new W-visa guest worker program. It would begin by admitting 20,000 additional foreign workers a year, with the number rising to 35,000 in the second year, 55,000 in the third year, and then 75,000 a year. A third of W-visas would be made available to employers with fewer than 25 employees, and a maximum 15,000 a year could be admitted to work in construction jobs, a cap that drew criticism from construction employers.

W-visa holders would have to be paid the higher of the wage paid to other workers performing similar work or the prevailing wage as determined in Occupational Employment Statistics.

A Bureau of Immigration and Labor Market Research would be created in the Department of Homeland Security's U.S. Citizenship and Immigration Services to determine whether there were occupational labor shortages and to recommend: (1) how to recruit US workers to fill jobs in occupations where employers are requesting W-visa workers; and (2) caps or quotas on the number of W-visas by occupation. The maximum number of new guest workers could rise to 200,000, depending on the unemployment rate and the number of unfilled job vacancies. If employers wanted more guest workers after the maximum number of visas had been allocated, they could obtain them by satisfying additional recruitment obligations.

The bill aims to clear the backlog over the next decade of about 4.7 million foreigners who have applied for immigrant visas. Many of those in the backlog are the adult brothers and sisters of US citizens. Their siblings were often immigrants who became naturalized US citizens and petitioned for the admission of their adult brothers and sisters and their families, so that a 40-year old Filipino may be sponsoring his 38-year old sister and her family. Waits for adult sibling visas can be a decade or more. The Senate bill proposes to eliminate immigrant visas for adult brothers and sisters of US citizens.