On June 11, the Senate overwhelming agreed by a vote of 82-15 on a motion to proceed with debate on the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744).  All 53 Democrats, the 2 Independents and 27 Republicans voted to allow debate to begin.  The margin of the vote belies the difficult road ahead.  Almost immediately the debate focused on the threshold needed to pass amendments – would it be a simple majority or would they require 60 votes?  A 60-vote threshold would make it more difficult to change the bill which the “Gang of 8” drafters argue is a balanced approach to a conditional path to citizenship for immigrants, increased border security, and a visa system with parameters for future migration.  After 5 days of debate and consideration of over 200 amendments, the bill emerged from the Senate Judiciary Committee without significant changes.  Proponents of the bill hope its core principles will be maintained during floor debate.  (For more background regarding S. 744 see the May 29 Human Needs Report.)
Border Security:  Border security has become the focus for both Republicans who may ultimately not want to see the bill pass as well as for some Democrats from conservative states who may also worry about how the issue of immigration reform will affect their reelection campaigns in 2014.  Some contend that a major shortfall of the last comprehensive immigration bill which passed in 1986 was its failure to secure the Southern border, and they often fail to acknowledge recent dramatic investments in border security.  Border security was also the issue that derailed the last attempt at comprehensive reform in 2007.   According to a recent Center for American Progress report, there have been significant increases in security and technology on the Southern border in the past few years.  In 2004, there were 10,000 Border Patrol agents.  That number has grown to 21,370 today.  The number of undocumented immigrants attempting to enter the United States is at a 40-year low.  S. 744 requires the Department of Homeland Security to hire 3,500 more agents by the end of 2013, authorizes the national Guard to construct more fencing, and increases mobile surveillance.

The first and only amendment considered during the first week of debate was one offered by Senator Charles Grassley (R-IA) that would prohibit immigrants from entering registered provisional immigrant (RPI) status, the first step to citizenship, until the Secretary of Homeland Security has maintained effective control of the borders for 6 months.  Amendment opponents argued that this process could take years and result in indefinite delays for immigrants to pursue the path to citizenship.  S. 744 already requires ‘effective control’ (defined as persistent surveillance of the Southern border and a 90 percent rate in preventing illegal crossings) before immigrants can gain lawful permanent resident (LPR) status, the step following 10 years in RPI status.  The amendment was tabled (i.e. effectively ‘killed’) on a vote 57-43 vote with Democrats Manchin (WVA) and Pryor (AR) voting against tabling and Republicans Graham (SC), McCain (AZ), Rubio (Fla.), Flake (AZ) and Murkowski (AK) voting to table the amendment.  After that vote, the process broke down as leaders failed to reach agreement on how to proceed with consideration of over 100 pending amendments.  Bill consideration will resume the week of June 17.  Majority Leader Harry Reid (D-NV) has warned that it could be a long two weeks as he is committed to finishing the bill prior to July 4 recess which is set to begin on June 29.

Difficult Path to Citizenship:  Opponents of S. 744 contend that it gives amnesty to immigrants.  Supporters reject this argument, pointing to the difficult requirements that immigrants must meet.  They must undergo criminal background checks, pay fines and fees, pay back taxes assessed by the IRS, maintain work requirements, pass English-language and citizenship exams, and wait in line for a green card.  Immigrants who satisfy these requirements will still be denied access to means-tested safety-net programs (SNAP, Medicaid, TANF, and SSI). To enter RPI status each adult in a family would have to pay a $500 fine and an application fee good for 6 years and another $500 fine along with an application fee and second background check to renew at the 6-year point.  To gain LPR status after 10 years requires a $1000 fine, a fee and a third background check.  The immigrants must also prove that they have been steadily employed or have the resources that put them at least at 125 percent of the federal poverty line, an indication that they will not be dependent on government resources.  While the fees have not been specified in the bill, the current charge to file for a green card (that is, LPR status) is $985 and to apply for citizenship is $680.  (For more details see the National Immigration Law Center document.)   In 2010, according to the National Council of La Raza, 43 percent of all immigrants who attended naturalization workshops delayed applying because of the cost.

While non-U.S. citizens are not eligible to receive federal means-tested public benefits, current law does allow them to: access the refundable Child Tax Credit if they are undocumented but file taxes using and ITIN (Individual Taxpayer Identification Number); receive the refundable Earned Income Tax Credit (EITC) once they receive work authorization and a Social Security number; and apply for credit for work that they did and for which they paid taxes prior to entering RPI status that will be used to determine their Social Security benefits.  Senators Orrin Hatch (R-UT) and Jeff Sessions (R-AL) plan to offer amendments that reverse current law in these areas when the Senate resumes floor debate.  These are benefits that immigrants have earned.  In the case of the EITC, if the amendment were to pass it would create a two-tier tax system for low-income working families.  Advocates are working to educate Members of Congress on the devastating impact these amendments would have on immigrant families.

Developments in the House:  A bi-partisan group of Representatives in the House has also been working on comprehensive immigration legislation which has not yet been introduced.  One of the sticking points is how to deal with health care for immigrants in RPI status and going forward.  Under S.744, immigrants in RPI status would not be eligible for premium support subsidies in the Affordable Care Act exchanges until they achieved LPR status.  In the meantime, they could participate in the exchanges only if they paid the full premium, a burden likely too costly for many immigrants.  Without insurance their only option for health care services would be the emergency room.  The inability of the House working group to agree on health care seems to have been the impetus for one of its members, Rep. Raul Labrador (R-ID), a vocal Tea Party member and former immigration attorney, to announce on June 5 that he was withdrawing from the group.  At the same time Rep. Paul Ryan (R-WI), who has unquestioned influence among some House members, expressed his support for the work the bi-partisan group is doing and for comprehensive immigration reform.

It is not clear whether the House will take up one comprehensive bill drafted by the bi-partisan group, or whether Judiciary Committee Chairman Robert Goodlatte (R-VA), who has not supported a path to citizenship, will take a piecemeal approach by addressing individual components of the bill in his Committee of jurisdiction. The Committee has introduced incremental bills and heard testimony related to an agriculture guest worker program (H.R. 1773), mandatory employment verification (H.R. 1772), border security (H.R. 2278), and high-skilled workers (H.R. 2131).   The House Judiciary Committee has a number of Republican members that clearly oppose a path to citizenship.  One of them, Rep. Steve King (R-IA), sponsored an amendment to the 2014 Department of Homeland Security funding bill to defund President Obama’s orders relaxing the deportation policy for undocumented immigrants who came to the United States as children, focusing instead on those who have committed crimes.  The amendment passed mostly along party lines (224-201), portending a difficult road ahead for immigration legislation in the House.

Because there is strong opposition to a path to citizenship from many conservative Members of the House, if such a bill is to pass, it will likely need strong Democratic support.   If the Senate is successful this summer in passing a comprehensive bill with bi-partisan support and House efforts fail, pressure could intensify on House Republican leadership to keep the legislation moving by amending the Senate bill and sending it back to the Senate.  Many believe that failure by House Republicans to act on immigration reform could have electoral consequences down the road.

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