On April 16, the bi-partisan Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, was introduced in the Senate.  This comprehensive overhaul of our nation’s immigration system contains a framework that includes a path to citizenship for many of the 11 million undocumented: 10 years in a newly created Registered Provisional Immigrant (RPI) status leading to Lawful Permanent Residence (LPR) status (a ‘green card’) and then at least 3 more years to citizenship.  Once immigrants receive RPI status, they receive Social Security cards and can work legally.  Criteria and a process for admitting future immigrant workers, as well as new provisions for enhanced border security and an employment verification system are also included.  It is understood that the path to citizenship would include passing a background check, learning English and paying fines and taxes assessed by the IRS.  For low-income immigrants the barriers to citizenship could be especially formidable.  (For more background regarding the Senate bill see the March 26 Human Needs Report.)  The full Senate is expected to debate the bill in June.
Certain ‘triggers’ related to border security must be met before immigrants can start to be admitted to RPI status or be allowed into LPR status after 10 years.  The Department of Homeland Security (DHS) must submit to Congress a Comprehensive Southern Border Security Strategy and a Southern Border Fencing Strategy within 180 days after the bill is enacted into law.  The goals of the plans include greater surveillance in areas where more immigrants have attempted to enter the country, a 90 percent apprehension rate of those who try to enter the country without permission at these ‘high risk sectors’, and implementation of an electronic employment eligibility verification system (E-Verify).  The bill appropriates $4.5 billion for additional surveillance equipment, fencing, and funding for border agents.  This expenditure would occur when staffing on the border is already at a record high number and migration from Mexico has dropped precipitously.  DHS Secretary Napolitano said during an April 23 hearing that additional fencing does not make sense.  The money would come from fees paid by various visa holders and employers.  Advocates are concerned about the growing militarization of the border that would occur as a result of the National Guard being deployed to construct fencing and checkpoints and engage in surveillance and other activities.  In a positive move, the bill establishes a 26-member Border Oversight Task Force that includes elected officials, civil rights advocates, and representatives from law enforcement, education, and the faith community to address human rights violations at the border.

Immigrants must have resided in the United States as of December 31, 2011 in order to seek RPI status.  Before new immigrants can begin the path to citizenship the current backlog in the family- and employment-based visas must be reduced.  Immigrants seeking admission to RPI status will be required to pay large fines, fees and taxes assessed by the Internal Revenue Service, and demonstrate a record of regular employment with no more than a 60-day gap.  Prior to receiving RPI status they must have remained in the United States, except for brief departures, since December 31, 2011.  A person with RPI status can apply for the status for their dependent children and spouse.  The fines required of adults include $500 at the time of filing for RPI status, $500 at the 6-year renewal point, and another $1000 when applying for LPR status.  In addition, application fees of yet-to-be-determined amounts would be assessed.  RPI status must be filed within one year from the time DHS publishes final regulations implementing the bill’s provisions unless DHS uses its waiver authority to extend the time.  A study of English and civics is also required.  These prerequisites could prove insurmountable for low-income immigrants.  According to the Migration Policy Institute, more than 25 percent of undocumented families have incomes of less than $20,000, making it extremely difficult to afford the fees and fines.  Local governments are cutting back on adult education programs so there is less access to English-language classes.  Documenting regular employment could also prove difficult.   Waivers in the bill allow for exceptions for some provisions based on age, physical and mental disabilities and other factors.

The initial PRI status is valid for 6 years, after which immigrants can apply to renew their status for a maximum of 6 more years.  At the time of renewal the applicant must show that they have been regularly employed (with gaps of no more than 60 days) and are not likely to become dependent on public cash assistance (such as TANF) or institutionalized for long-term care at government expense OR they must demonstrate an average income or resources (assistance from other entities that could include relatives) not less than 100 percent of the poverty level throughout the RPI period.  These criteria also apply at the time of application for LPR status with the income or resources threshold raised to 125 percent of the poverty level.  This demonstration of the lack of dependence on government resources aims to hold down the cost to government of having more documented immigrants.   Prior to admitting any immigrants to LRP status, DHS must have implemented the E-Verify system.

Farm workers and those who entered the United States before the age of 16, the so-called DREAMers who meet the school or military service requirement, would be eligible for an expedited 5-year path to citizenship.  After 5 years in RPI status, DREAMers would immediately be eligible for citizenship.  Unlike prior DREAM Act legislation, S. 744 does not put an upper limit on the current age of those who came to the United States when they were less than 16 years old.  Farm workers who can demonstrate that they have worked a minimum of 100 days in the two years prior to the enactment of the legislation would be eligible for an agriculture ‘blue card’.  Farm workers who work at least 100 days a year for 5 years or 150 days for 3 years can receive LPR status if they have paid any back taxes, have not been convicted of a serious crime, and pay a $400 fine.

Last June, DHS announced that immigrants who came to the United States as children and met certain guidelines could request consideration of deferred action for a period of two years, subject to renewal, and would be eligible to work.  These immigrants’ status is referred to as Deferred Action for Childhood Arrivals (DACA).  Eligibility in the program requires that they must have been under the age of 31 as of June 15, 2012, came to the United State before the age of 16, have been continuously present for 5 years, met the education or military service requirement, and passed the criminal background check.  S. 744 does not specifically say that DACA status would count toward the amount of time in RPI status nor that they would automatically be granted RPI status, but they could be given the status at the discretion of the DHS Secretary.

Certain categories of visas are eliminated as of 18 months after the bill’s enactment – including sibling visas and those for married children over 30 whose U.S. parents wish to sponsor them.   Advocates are concerned that eliminating these two categories will harm family unity, an important expression of deeply-held values in our immigration system.  The diversity visa lottery, the main source of immigration from African and Eastern Europe, would also be eliminated as of October 1, 2014.  One rationale for eliminating these visas is to make room for high caps in other visa categories, especially high skilled workers.

While some visas have been eliminated, S. 744 creates others.  Some, like ‘V’ visas, are nonimmigrant visas for workers temporarily in the country or visas for family members waiting for green cards so they can physically join their family members in the United States.  ’W’ nonimmigrant visas are for temporary low-wage workers who work for 3 years with registered employers in an occupation with labor shortages.  ‘W’ visa holders can renew for 3 more years, switch to another registered employer, and could eventually apply for a merit-based green card.  The bill would allocate immigration visas in a new two-track, merit-based point system.  Track One allows for 120,000 visas per year with the number increasing to as high as 250,000 per year depending on the unemployment rate.  Factors in the point system that would be considered include education, work experience, needs of U.S. employers, age and U.S. citizen relatives.  Track Two visas would be available for families and workers caught in the immigration backlog for many years.

There are multiple visa programs currently operating which provide avenues for individuals to be admitted legally into the United States.  The H-1B visa program is a temporary visa program for high-skilled workers.  The bill calls for increasing the number of visas in the program to not less than 110,000 and not more than 180,000 for any fiscal year.  During a hearing on April 21, Senator Dick Durbin (D-IL) argued that too many of those visas are going to companies headquartered outside of the United States.  The legislation also includes green cards for foreign students who graduate in STEM (science, technology, engineering and mathematics) fields.

Immigrants in the RPI status are not eligible for means-tested benefits.  Currently even adults who become lawful permanent residents are not eligible for SNAP (food stamps), Medicaid, TANF or SSI until after a 5-year waiting period. Non-citizen children of undocumented immigrants are also denied access to these programs. They are eligible for nutrition programs like school lunches and WIC, however.  The Senate bill does allow immigrants who may have used fraudulent Social Security numbers to get jobs to claim Social Security benefits for work they performed while undocumented, without fear of prosecution.  Immigrants will be eligible to claim the Earned Income Tax Credit once they are working under RPI status and paying taxes.

 S. 744 outlines the provisions that employers of immigrants with specific visas must follow, including requirements to first offer jobs to U.S. workers and to not displace U.S. workers.  Employers of temporary agriculture workers must abide by certain wage guidelines, provide insurance for injuries if the job is not covered by state worker’s compensation laws, and provide housing that meets standard for temporary labor.  The bill also set fines for employers who violate the guidelines.

(For further details see National Immigration Law Center comprehensive summary and analysis of S.744.)

Judiciary Committee Chairman Senator Patrick Leahy (D-VT) plans to begin marking up S 744 in Committee on May 9.  Dozens of amendments could be filed, so several subsequent markup dates have been scheduled in May.  Action is expected on the Senate floor as soon as June.

A bi-partisan group of Representatives in the House has also been working on comprehensive immigration legislation which has not yet been introduced.  However, Judiciary Committee Chairman Robert Goodlatte (R-VA), who has not supported a path to citizenship, recently indicated that he prefers to focus individually on components of the bill rather than one comprehensive bill.  Many see this strategy as a delay tactic.  If the Senate is successful this summer in passing a comprehensive bill with strong bi-partisan support, the pressure will be on conservative House Republicans to adopt a more comprehensive approach.

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