ILW.COM - immigration news: The Senate Bill And The Undocumented - Estimates Of How Many People Might Qualify

Editor's Note: The information in this article was accurate at the time of writing. Further amendments have been voted on since May 17, 2006.

As the debate proceeds on the Senate debate, questions have been raised as to how many undocumented immigrants would eventually be legalized by the Senate bill (the "Hagel-Martinez" compromise).

The answer is that the ultimate number will depend on what amendments are incorporated into the bill as it moves forward. As it stands now, the compromise needs improvement.

There are a number of enforcement provisions in the bill that would, if not corrected, lead to unintended consequences when it comes time to implement the legalization provisions of the bill. Without amendment, these provisions will disqualify millions of undocumented immigrants from participation in the program. There are indications that the bi-partisan coalition of Senators who support comprehensive immigration reform are amenable to fix at least some of these flaws, so that the legalization provisions can be successfully implemented.

Document fraud:
Chief among those provisions is a section that would make undocumented workers who continue to use fake documents between date of enactment and application "inadmissible." This could include people who have provided false information on an I-9 form and continue to work in that same job after enactment, or individuals who change jobs after enactment and continue to use fake documents for work or other life circumstances. Turn-over rates are often high in lower-skilled occupations, and it is quite possible that upwards of millions of undocumented immigrants could change employment between enactment and implementation.

Barriers to participation for those here between 2 and 5 years:
Those who have resided here since January 7, 2004, but less than five years, are not treated as generously as those residing here longer, and there are several provisions in the bill that would make their participation less likely.

Undocumented immigrants arriving after January 7, 2004, not included in legalization program:
In addition to the provisions outlined above that might be considered internal contradictions, the design of the compromise itself excludes undocumented immigrants who arrived after January 7, 2004. That will leave approximately 1.6 million without an option for legalizing their status. While these immigrants are not precluded from participation in the contemplated temporary worker program, there is insufficient support among the reformers in the Senate to treat the newly arrived undocumented with the same benefits as those who have resided here a long time.

Exclusion of those ordered removed:
An amendment offered by Senators Cornyn and Kyl (and accepted) will prevent those who have final orders of removal from participating in the program. The original amendment has been modified to provide for waivers for some. Persons who have been here between 2 and 5 years are already barred from participation in the legalization program if they have a final order of removal pending.

Other Amendments:
There are other amendments that will reduce the viability of the bill, including an amendment to eliminate the legalization program; an amendment to deny legalization to undocumented immigrants while inside the country; an amendment to deny undocumented immigrants the ability to self-attest to the requirements for legalization; and amendments to eliminate a path to permanent residence for some or all of those who come to the U.S. in the new temporary worker program. It is expected that the pro-reform coalition will defeat these amendments.

To review, the Hagel-Martinez compromise treats the undocumented in the following way: " Those who have been here for five years or more would be offered a direct and multi-step process to permanent residence. " Persons who had been in the U.S. prior to January 7, 2004, but less than five years, would have to briefly leave the U.S. (but will not necessarily have to return to their home country), but will be able to come back in immediately and get on track for permanent residence, obtainable within eight years. All paperwork will be done within the U.S., not in consulates abroad. " Those here since January 7, 2004, would not be eligible for legalization. On the other hand, they would not be barred from the programs to legalize the future flow of immigrants, including the temporary worker program and increased family and employment visas. Bars to re-entry would be waived for this group.

Estimates of those who might be excluded:
As mentioned above, the document fraud provision could prevent millions from participating in the legalization program, but we are told that there is likely sufficient support among the coalition of reformers in the Senate to fix this problem, as it would obviously undermine the intent of the legalization program.

The collection of provisions that apply to those who have been here longer than two years but less than five years might depress participation by making the ultimate reward of legalization just too uncertain. The lack of confidentiality and requirement to give up all right of appeal may be a deterrent to stepping forward. The brief application period will increase the likelihood that many will miss the deadline. We are pushing to have some or all of these problems fixed. If not all corrected, we believe that one-quarter to one-third of the 2.8 million undocumented immigrants in this category would not step forward-or about 700,000 - 900,000.

An undocumented immigrant who has an outstanding order of deportation is prohibited from participating in the program (though there are waivers that will be available for some). That will exclude perhaps another 350,000 to 500,000 depending on how the waivers are implemented.

Grand total, given the current scenario
Assuming the fixes that we believe can be obtained are obtained as the Senate bill moves through the amendment process, the potential number of those who may benefit from the legalization provisions will be:

For a grand total of, very roughly, 8 million or 8.5 million who would qualify for legalization and be put on a path to citizenship. As with any estimate of how an uncertain number of undocumented immigrants may act in the future and how an evolving policy proposal might affect them, this is a guess. However, as things stand right now, given a supportive reform coalition of Senators it is not an unreasonable guess.

The above discussion of course depends on the coalition of Democratic and Republican senators holding together to gain some improvements in the bill, and defeating the amendments being offered by hard-liners intent on undermining comprehensive reform. If the coalition doesn't hold, and comprehensive reform is no longer viable, we would recommend opposition to the bill. At this moment, with support strong in the Senate for comprehensive immigration reform and with supporters of reform seeming to be poised to block hard-line amendments, we do not feel that it makes sense to call it quits while the game is just getting under way. The strategy, after all, is to defeat the House bill, a strategy that, in our view, becomes more difficult without a Senate bill that is as close to the Kennedy/McCain bill as it can be.

Early indications from the floor debate are promising. The first vote was on an amendment by Senator Isakson of Georgia (R). That amendment would have suspended implementation of the legalization program and temporary worker program (and increases in permanent legal immigration) until DHS certified that the enforcement provisions of the bill were fully funded and implemented. This "enforcement first" approach is very similar to what many of the hard-liners in the House want to see. The amendment failed by a vote of 55 to 40. Eighteen Republicans joined Democrats to kill the amendment.

Reformers in the Senate were given a major boost when the President addressed the nation during prime time on the subject of immigration reform. He said that he believes that the undocumented should be provided with an opportunity to eventually become citizens, and his formulation is very similar to the bill being debated now on the Senate floor.

It will take more than symbolic acts from the President to move comprehensive reform over the goal line. The President will have to remain engaged throughout the debate as it plays out on the Senate floor and in the House/Senate conference committee. In the mean time, he has given a green light to reformers in the Senate, and early indications are that the coalition is holding together.

Editor's Note: The following information about additional amendments is provided courtesy of Gregory Siskind, Esq. and is current as of 3pm, 5/19/06.

There were a number of amendment votes today and the prospects for a vote on the bill by Memorial Day is looking realistic.

Senator Ensign (R-NV) introduced an amendment to bar legalization beneficiaries from receiving any social security benefits for contributions paid in prior to legalizing. The amendment was permanently tabled by a vote of 50 to 49.

Senator Inhofe (R-OK) introduced an amendment to make English the official language of the United States. It also would have required proficiency in English for legalization applicants and H-2C applicants to adjust status (as opposed to being enrolled in an English class). The measure passed by a vote of 63 to 34.

Senator Salazar (D-CO) introduced a competing amendment declaring English the "common and unifying language" of the United States. This measure was approved by a measure of 58 to 39.

Senator Clinton (D-NY) introduced an amendment to create a grant program to provide financial assistance to States and local governments for the costs of providing health care and educational services to noncitizens, and to provide additional funding for the State Criminal Alien Assistance Program. The money would have come from H-2C fees. The measure failed by a vote of 43 to 52.

A similar amendment offered by Senator Cornyn (R-TX) would provide financial assistance to states to fund health and educational expanses connected to immigration. The funds would come from new fees (as opposed to fees already included in the bill). The measure passed 64 to 32.

Arizona Republican Senator Kyl's amendment to bar H-2C visa holders from adjusting status to permanent residency was tabled permanently by a vote of 58 to 35.

Senator Nelson (D-FL) was successful in getting an amendment passed which would increase the number of detention beds by 20,000. The measure passed by a voice vote.

We also failed to mention an amendment that passed yesterday which will include Poland in the Visa Waiver Program countries.

# posted by Greg Siskind @ 10:18 PM

Senator Kennedy was successful in passing an amendment to largely replace yesterday's Cornyn bill.

The bill will still require a labor certification, but a worker will be able to self-petition for one. It is not clear how this would work yet and I'll report more when I see the language. Once the Labor Department approves the labor certification, then the worker must either present a letter attesting to the job offer from an employer or, in the alternative, evidence of the requisite prior employment.

# posted by Greg Siskind @ 12:20 PM

Senator Cornyn's amendment to require H-2Cs seeking permanent residency to have employer sponsorship passes narrowly by a vote of 50 to 48. The measure appears to make a labor certification a requirement for converting an H-2C to permanent residency as opposed to the current rule which allows for self-sponsorship after several years.

According to the National Immigration Forum, Senator Kennedy is planning to offer an amendment today which would restore some options for self-sponsorship.

# posted by Greg Siskind @ 9:57 AM

Barack Obama (D-IL) was successful in getting an amendment added to the Senate bill which allows the prevailing wage determination for H-2C visa applications to include wage data published by the Department of Labor and allows for an employer to submit a wage survey if DOL data is not available.

Obama's amendment also makes a very significant change. H-2C visas will not be available in occupations where the unemployment rate is 9% or higher. That's down from 11% in the previous version of the bill.

# posted by Greg Siskind @ 4:21 PM

No surprise there.

# posted by Greg Siskind @ 4:02 PM

The Vitter amendment fails by a vote of 33 to 66. The measure would have struck provisions in the Senate bill that would permit legalization applicants from self-attesting on issues relating to showing residency and work history.

# posted by Greg Siskind @ 2:04 PM

Senator Kerry's Amendment 3999 to increase the number of Border Patrol agents this year by 1,000 and add 100 helicopters and 250 power boats at the border was approved this morning by a voice vote.

According ot Senator Kerry,

"We need a comprehensive answer to immigration that includes tightening border security, but putting another burden on the backs of the National Guard troops who are serving their second tours of duty in Iraq and Afghanistan isn't the right answer. The National Guard which has borne the burden of a broken policy in Iraq shouldn't have to bear the burden of an incomplete immigration policy," said Kerry. "We need to listen to the 9/11 Commission and put the border patrol agents we need right there on the border. It won't satisfy the right wing, but it's the right policy."

# posted by Greg Siskind @ 11:48 AM

With the removal of the controversial provision barring legalization for those with immigration crimes (illegally reentering, failing to abide by a deportation order, etc.), the Kyl-Cornyn amendment barring criminals from legalizing passed by an overwhelming 99-0 vote.

# posted by Greg Siskind @ 10:58 AM

Senator Sessions is now offering this amendment to the Senate bill:

SA 3979. Mr. SESSIONS submitted an amendment intended to be proposed by him to the bill S. 2611, to provide for comprehensive immigration reform and for other purposes; which was ordered to lie on the table; as follows:

Strike section 106, and insert the following:

SEC. 106. CONSTRUCTION OF STRATEGIC BORDER FENCING AND VEHICLE BARRIERS.

(a) Tucson Sector.--The Secretary shall--

(1) replace all aged, deteriorating, or damaged primary fencing in the Tucson Sector located proximate to population centers in Douglas, Nogales, Naco, and Lukeville, Arizona with double- or triple-layered fencing running parallel to the international border between the United States and Mexico;

(2) extend the double- or triple-layered fencing for a distance of not less than 2 miles beyond urban areas, except that the double- or triple-layered fence shall extend west of Naco, Arizona, for a distance of 10 miles; and

(3) construct not less than 150 miles of vehicle barriers and all-weather roads in the Tucson Sector running parallel to the international border between the United States and Mexico in areas that are known transit points for illegal cross-border traffic.

(b) Yuma Sector.--The Secretary shall--

(1) replace all aged, deteriorating, or damaged primary fencing in the Yuma Sector located proximate to population centers in Yuma, Somerton, and San Luis, Arizona with double- or triple-layered fencing running parallel to the international border between the United States and Mexico;

(2) extend the double- or triple-layered fencing for a distance of not less than 2 miles beyond urban areas in the Yuma Sector; and

(3) construct not less than 50 miles of vehicle barriers and all-weather roads in the Yuma Sector running parallel to the international border between the United States and Mexico in areas that are known transit points for illegal cross-border traffic.

(c) Other High Trafficked Areas.--The Secretary shall construct not less than 370 miles of triple-layered fencing which may include portions already constructed in San Diego, Tucson and Yuma Sectors and 500 miles of vehicle barriers in other areas along the southwest border that the Secretary determines are areas that are most often used by smugglers and illegal aliens attempting to gain illegal entry into the United States.

(d) Construction Deadline.--The Secretary shall immediately commence construction of the fencing, barriers, and roads described in subsections (a), (b), and (c) and shall complete such construction not later than 2 years after the date of the enactment of this Act.

(e) Report.--Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes the progress that has been made in constructing the fencing, barriers, and roads described in subsections (a), (b), and (c).

(f) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this section.

# posted by Greg Siskind @ 9:42 AM

This provision would originally have made it virtually impossible to participate in the legalization program if someone has a crime or prior deportation. Apparently, a compromise has been reached to take out those with immigration violations, but we have not seen the language yet.

# posted by Greg Siskind @ 8:53 AM

USCIS is reporting that about 25,000 H-1Bs remain for the fiscal year starting October 1st. About 15,000 of the special advanced degree H-1Bs remain out of the 20,000 quota for that group. You can check H-1B usage at the USCIS' web site.

# posted by Greg Siskind @ 7:19 AM

About The Author

Maurice Belanger is the Director of Public Information at the National Immigration Forum. The National Immigration Forum is one of the leading immigrant advocacy policy groups in the nation.

The Senate Bill And The Undocumented - Estimates Of How Many People Might Qualify

by Maurice Belanger for the National Immigration Forum

About The Author