Overview of Senate Bill 1348

Overview of the Senate Proposal
Border Security and Immigration Reform Act of 2007 – S. 1348

Provisions in the Senate bill for legalization and a guestworker program would not launch until a number of conditions were met for greater enforcement mechanisms and practices – the “trigger” process demanded by legislators who believe in an “enforcement first” approach to immigration reform. Although Congress has speculated that the specific triggers could be met in 18 months, there is no set deadline by which these triggers must be met in order for these other provisions to launch. The lengthy bill includes many provisions, with the main components summarized here:

Legalization:

• Immigrants unlawfully present in the U.S. prior to Jan. 1, 2007 could apply for a “Z” visa within the first year of the program, and must be currently employed, pass a background check and meet other conditions.
• Applicants would need to pay a $1,500 fee, a $1,000 fine, and $500 state fees (payable in installments), and be currently employed. The total cost for a family of 4 could be as much as $9,000 for the initial application process.
• If approved, would be given temporary probationary status with permission to work until the “triggers” are met.
• After the triggers are met, the Z visa is issued for 4 years, and is renewable indefinitely every 4 years provided the applicant remains fully employed, shows progress in learning English and civics, pays more fines and fees, and meets other conditions. Z visa holders would receive work authorization and could travel and change jobs.
• The head of household has 8 years to return to the country of origin – “touchback” – and apply at the U.S. consulate there for legal permanent residency. However, this application can only be filed during a five-year period after the “backlog” of pending visa applications filed prior to May 2005, has been cleared. The application will be considered under the new merit system, and again, the applicant must pay a $4,000 fine, filing fees, and all back taxes, have remained continuously employed, and have met other requirements. (There are many estimates that the waiting period would be 8-13 years for decision on an LPR application, with only 87,000 visas available per year).

While many undocumented immigrants and their families could benefit from this provision, it is a long and complicated process during which immigrants could lose their status, not be able to bear the financial costs, and become even more vulnerable to workplace exploitation for fear of losing their jobs during this probationary status. Because children and spouses not with their family breadwinner as of January 1, 2007, would be ineligible for the temporary status, the program would perpetuate the separation of families.


Immigration

• The proposal would make a major shift in immigration, by establishing a merit-based point system (education, language, job skills, family ties) for eligibility for legal permanent residency, replacing the current system based on family reunification.
• Automatic family reunification (not subject to new point system) would be limited to spouses and minor children of U.S. citizens.
• Applications from children over 21 years of age, for brothers and sisters and parents would be considered under the new point system.
• There would be an annual cap of 40,000 visas for parents of U.S. citizens, and a cap of 87,000 for spouses and minor children of legal permanent residents.
• Family applications filed before May 2005 (approximately 4 million families) would be exempt from point system; however, those who filed after this date would lose their place in line and need to re-apply under the new point system.
• The program would aim to clear the backlog of pending applications within eight years.

The introduction of the merit-based point system de-values family reunification as a core principle in U.S. immigration policy and would favor English-speaking, highly skilled and educated immigrants who are perceived to better “fit” into U.S. economic needs. At the same time, the limits placed on some categories will continue to increase backlogs and fuel the predicament of those who will migrate without the benefit of legal documents in order to reunite with their family members.

Guestworkers

• As amended, the bill would provide for 200,000 “Y” visas each year, a number which could be adjusted every 6 months based on market fluctuations.
• Participants could include spouses and minor children if they could prove they had health insurance coverage and their wages would be 150% above poverty guidelines.
• Applicant must be matched with “willing” employer, using the labor certification process. Employers may use labor contractors and recruiters.
• The program would provide 2-year visas, renewable 2 more times; however, if the worker is accompanied by dependents they would only receive a single 2-year, renewable once. Family may only remain during one of those 2-year periods.
• The worker would need to return to his/her home country for 1 year between each renewal. If the worker failed to leave on time he/she would be permanently barred from any future immigration benefit.
• There is no eligibility for legal permanent residency. While working in the program, “exceptionally skilled” immigrants could earn points toward a limited number of point-based green cards.
• The program would only come into effect after the triggers are met.
• The bill largely includes the provisions of the AgJOBS bill; it sets different eligibility standards for legal permanent residency and which is not subject to the trigger mechanism.

The expansion of the temporary worker program undermines labor right immigration update to reviews for all workers, native or foreign born – designating a secondary tier of workers without the same rights as other workers. It disrespects the principle of family unity and perpetuates the system of disposable immigrant labor.

Enforcement

• Increases in immigration enforcement must be made and certified by the Secretary of Homeland Security before the legalization and temporary worker programs would launch – a period projected to be about 18 months (although there is no legally mandated timetable). These triggers include:
o The hiring of 20,000 Border Patrol agents;
o The construction of 370 mile fencing and 300 miles of vehicle barriers, increased high-tech surveillance and detection equipment along the U.S.-Mexico border;
o As amended, the DHS would certify that the U.S had “operational control” of the border as a trigger condition;
o Increased capacity to detain up to 31,500 persons a day on an annual basis;
o The nationwide electronic employee verification system is in place and being utilized.

• The bill also strengthens employer sanctions, increasing fines and penalties against employers who hire the undocumented.
• The proposal expands the list of document-related crimes and penalties, and makes document violations a deportable offense.
• The legislation further undermines due process, access to the courts, and expands the aggravated felony category.
• The proposal supports the indefinite detention of noncitizens with final orders of deportation.
• The bill expands the definition of a “gang” and involvement in a long list of offenses (including past affiliations) that would make association with such a “gang” involved in such offenses a basis for deportation.

The substantial enforcement provisions of this bill, largely promoted as the “first steps” in immigration reform, continue the pattern of linking immigration services and enforcement to national security. S. 1348 would invest huge financial resources towards tough-sounding and expedient programs to “deal with the illegal immigration problem.” However, in 20 years of implementation, the employer sanctions program, a central provision of the sweeping 1986 immigration bill (IRCA), has had no impact on its stated purpose of reducing undocumented immigration. The employee verification system, already proven to be error-prone and unreliable, would strengthen employer leverage over immigrant workers, increase discrimination and continue criminalizing of undocumented workers. Likewise, the heightened militarization of the border would increase rights violations in border communities, and contribute to the steady rise in migrant deaths.

Other enforcement-related provisions also have serious negative impacts. For example, applicants for the Z visa program could risk deportation if they were found to be using false documents and their applications were denied – which would deter and prevent many from applying to the program.

(Thanks to Board member Susan Alva with the Migration and Policy Resource Center for her summary of the legislation, incorporated here.)