Reform of the nation's immigration system crossed a major milestone on June 27 when the U.S. Senate passed the Border Security, Economic Competitiveness, and Immigration Modernization Act of 2013 (S. 744), with the support of all Senate Democrats and 14 Republicans. The landmark legislation, which seeks to overhaul the U.S. immigration system on a scale not seen since 1965, now moves to the House, where it faces a far less certain future.
House Speaker John Boehner (R-OH) swiftly declared the House would not take up the Senate bill and instead would follow its own strategy. The shape of that approach remains unclear, as Republican leadership has yet to decide whether to proceed with piecemeal bills considered by the House Judiciary Committee or whether to seek a broader approach. A bipartisan group of seven House members has been laboring for months to craft a comprehensive immigration reform plan of its own, but remains stymied, apparently over provisions relating to the nation's estimated 11 million unauthorized immigrants.
Boehner has called a House Republican Conference meeting for July 10 to hear from rank-and-file members about their preferred approaches to the immigration issue. Under significant pressure from conservatives, the speaker already has declared that he will only bring to the floor legislation that is supported by a majority of the majority—or at least 118 Republicans. Squaring differences between the two parties will prove a far harder task in the House than in the Senate—with some House Republicans vigorously opposing legalization for unauthorized immigrants even as Democrats insist they cannot support legislation that doesn't include legalization.
The Senate Acts
Complications in the House notwithstanding, the Senate's passage of a sweeping comprehensive immigration reform bill that would touch virtually every facet of the U.S. immigration system—from remaking the legal immigration system to increasing enforcement at the border and in the interior while also seeking to resolve the status of the nation's unauthorized immigrant population—marked an important moment after weeks of debate on the Senate floor and before that in the Senate Judiciary Committee. The landmark legislation was approved on a 68-32 vote, drawing the support of all 52 Democrats, 14 Republicans, and two independents. Thirty-two Republican senators opposed the bill, even after inclusion of a Republican amendment providing a massive infusion of new border security funding and construction of additional border fencing. The fact that none of the Senate GOP leadership supported the legislation spoke volumes to House Republicans.
The Senate bill aims to stem future illegal immigration by dramatically intensifying border security and preventing the hiring of unauthorized workers. It would double the size of the Border Patrol to 38,405 agents; double the length of current fencing at the U.S.-Mexico border; and expand the arsenal of high-tech surveillance and monitoring devices used at the border to detect illegal entries. Within five years, all U.S. employers would be required to use an electronic employer verification system to check the immigration status of new hires. In addition, the legislation requires that an electronic exit system be in place at the nation's air and sea ports by 2015 to track those who overstay their visas.
Each of these enforcement provisions would also act as a "trigger" for the bill's legalization program. Unauthorized immigrants would be allowed to apply for initial Registered Provisional Immigrant (RPI) status only after the Department of Homeland Security (DHS) began implementing border security measures, and RPIs would not be eligible to apply for green cards until all specified border and interior enforcement measures were in place.
Unauthorized immigrants currently living in the United States who entered prior to December 31, 2011, would be eligible to obtain RPI status after clearing security background checks. For RPIs to adjust to permanent residence, they would pay a fine and taxes, have to demonstrate a strong employment record, and learn English. It would take a minimum of ten years to receive green cards, and another three years to be eligible for citizenship.
It is not clear what share of the estimated 11 million unauthorized migrants would successfully complete the process. Two subsets of the unauthorized population would be eligible for green cards and citizenship more quickly: agricultural workers and unauthorized youth known as DREAMers.
The bill also proposes large-scale changes to the legal immigration system, both temporary and permanent. It would increase the overall volume of permanent immigration; tilt the family-based system toward reunification of the nuclear family; and vastly increase the allocation of employment-based visas. It would also eliminate the diversity visa program and introduce a merit-based visa system that selects certain immigrants on the basis of attributes such as education, work experience, and English-language skills. The bill also would increase the number of H-1B visas (those reserved for professionals in high-skilled occupations) from the current 65,000 per year to a flexible range of 115,000 to 180,000 according to a statistical formula.
Additionally, the Senate legislation would establish a new guest-worker program that would admit between 20,000 and 200,000 foreign-born workers yearly for middle- and low-skilled occupations, based on a formula that takes into account economic and labor market conditions. It would also replace the current H-2A agricultural worker program with one designed to facilitate hiring of agricultural workers.
The bill addresses numerous other areas of immigration policy as well. If adopted, it would liberalize the procedures for approving asylum applications; would reform the detention and removal system; and grant greater discretion to immigration judges.
From introduction to Senate passage, many of the legislation's core elements—the legalization program, the employer verification mandate, and the structure to manage the future flow of immigration—remained relatively unchanged. Border security, however, was dramatically revised, and more clearly tied to the legalization plan by the full Senate.
The vast majority of Democrats and a number of Republicans were expected to support the bill from the onset. However, the Gang of Eight—the bipartisan group of senators who crafted the bill and shepherded it to passage—decided to seek more than the 60 votes required to overcome a filibuster, with the intention of raising pressure on the House to act.
While the Gang of Eight's goal of 70 yes votes fell out of reach, the comfortable margin of 68 votes was secured by accommodating amendments sought by individual senators. Indeed, the high level of support was obtained only after changes—both small and substantial—were made to the bill.
The most significant of those changes was a "border surge" negotiated by Republican Senators Bob Corker (TN) and John Hoeven (ND). The Corker-Hoeven proposal tacked on to the bill three additional enforcement triggers and added new and far-reaching border enforcement provisions, such as increasing funding for border security from $6.5 billion to $44.5 billion over a decade, doubling the number of Border Patrol agents and miles of new fencing, and installing more intensive monitoring systems—from infrared cameras to drones to rescue beacons. It also limited RPIs' access to some federal public benefits.
The Corker-Hoeven amendment—the most important change to the bill passed out by Senate Judiciary Committee—was the final product of an agreement to win additional Republican senators' votes without losing the support of Democrats who were opposed to much stricter (and in their view unattainable) border security triggers offered by Senator John Cornyn (R-TX). While it may have accomplished its mission on the Senate floor, passage of the amendment has caused consternation among a number of immigrant-rights organizations, with a small number coming out against the Senate bill as a result.
Key Events Influencing the Vote
As the debate on the Senate floor was unfolding, two events paved the way for the bill to overcome two potentially critical hurdles. The first was the release of the Congressional Budget Office (CBO) cost score, estimating that the impact of S. 744, as voted out of Senate Judiciary Committee, would reduce the federal deficit by $197 billion over ten years and by $700 billion over 20 years. Not only did the estimate give the legislation a lift, alleviating concerns that it would be costly, it also enabled senators to devote $44.5 billion to border security that would be necessary to fund the Corker-Hoeven deal.
Second, on June 26, the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA) as a violation of the equal protection guarantees of the Constitution. The decision means that U.S. citizens can now sponsor their foreign-born same-sex partners for immigration benefits—an issue that has loomed over the immigration debate since the mid-2000s. Many key Democratic lawmakers, led by Sen. Patrick Leahy of Vermont, have long favored inclusion of a provision granting parity to same-sex couples for immigration benefits, while Republicans have opposed that provision. The Supreme Court's ruling laid the issue to rest, sparing the Senate from holding a vote on a topic that could have ensured the bill's failure.
Without any congressional action, the Supreme Court decision on DOMA has already impacted immigration policy. In response to the ruling, Homeland Security Secretary Janet Napolitano stated that DHS "will implement today's decision so that all married couples will be treated equally and fairly in the administration of our immigration laws." Thus, same-sex couples married in the District of Columbia and any of the 13 states that allow same-sex marriages can now receive immigration benefits. The first green-card approval for a same-sex married couple was issued days after the decision on June 28.
Despite last week's momentous actions, it is clear that immigration reform faces an uphill battle in the House, where both a strategy and timeline are elusive.
Already, coalitions of pro- and anti-immigration reform groups are gearing up, and will use the August congressional recess to put pressure on lawmakers while they are in their home districts. Senate Democrats and the White House have indicated plans to pressure the House to pass immigration reform legislation, with some talking of a massive rally that could draw as many as 1 million people. Critics of the Senate bill are readying their own campaigns to stall its momentum in the House.
The issue is particularly vexing for the Republican Party—where establishment figures see immigration reform and the support of Latino voters as key to the long-term political fortunes of the GOP against the view of grassroots conservatives that the Senate bill represents an unacceptable amnesty. Immigration is a particularly dicey topic for many House Republicans, whose districts are solidly conservative and where support for immigration reform could invite a primary challenge.
So far, the House Judiciary Committee has approved, largely along party lines, four stand-alone bills—on interior enforcement, an agricultural guest-worker program, E-Verify, and high-skilled immigration.
With the summer recess approaching and important budget-related bills competing for attention after the break, many are skeptical that the House will succeed in passing any immigration legislation this year. If it does, and whether it is a series of piecemeal bills or comprehensive legislation, select House and Senate leadership will go to conference to reconcile the two chambers' bills. The goal would be to produce legislation that can then be passed by both legislative bodies—an increasingly daunting challenge.
State and Local Policy Beat in Brief
Border Patrol Apprehensions Now Highest in Rio Grande Valley Sector. In the first six months of fiscal year (FY) 2013, the U.S. Border Patrol made 94,305 apprehensions in the Rio Grande Valley sector, displacing Tucson as the sector with the highest number of apprehensions for the first time since 1993. The Tucson sector has recorded 89,822 apprehensions since the start of the fiscal year on Oct. 1. In all of FY 2012, 120,000 apprehensions were made in Tucson compared to 97,762 in the Rio Grande Valley. The rise in Border Patrol apprehensions in the Rio Grande Valley has been driven by noncitizens from countries other than Mexico, a growing trend both in the sector and border wide. Total apprehensions have experienced a historic decline since peaking at almost 1.7 million in 2000, but have risen slightly from approximately 340,000 in FY 2011 to nearly 365,000 in FY 2012.
House Judiciary Committee Approves Three More Immigration Bills. In late June, the House Judiciary Committee approved three stand-alone immigration bills co-sponsored by committee Chairman Robert Goodlatte (R-VA): an agricultural guest-worker program bill entitled the Agricultural Guestworker "AG" Act, which passed on a 20-16 vote; an E-Verify bill entitled the Legal Workforce Act on a 22-9 vote; and a high-skilled bill titled the Supplying Knowledge Based Immigrants and Lifting Levels of STEM Visas Act (or SKILLS Visa Act) on a vote of 20-14. The AG Act would create a new H-2C visa program for agricultural workers, administered by the U.S. Department of Agriculture, and aimed at easing employers' access to guest workers. The Legal Workforce Act intends to discourage future illegal immigration by mandating all U.S. employers check the immigration status of new hires with the E-Verify system within two years. Lastly, the SKILLS Visa Act would increase green-card allocation to foreign graduates of U.S. universities with advanced degrees in science, technology, engineering, and math (STEM) fields; increase H-1B visas; eliminate the per-country cap on employment-based visas; and expand entrepreneur and investor visa programs. Also in late June, the House Judiciary Committee approved an interior enforcement bill entitled the Strengthen and Fortify Enforcement Act (or the SAFE Act). The committee has now voted out a total of four immigration bills, each concerning individual aspects of the immigration system, in an effort to address immigration reform through a piecemeal approach.
High Court to Hear Case on Children of Immigrants "Aging Out." The U.S. Supreme Court has granted certiorari to the Obama administration's appeal of a 9th Circuit decision in Mayorkas v. Cuellar de Osorio, a case concerned with the treatment of the children of immigrants who have become adults (turned 21) during the time their parents have been waiting to receive immigrant visas. Currently, only children under the age of 21 are eligible to accompany primary beneficiaries of family-based green cards. If the child turns 21 before the primary immigrant becomes a permanent resident, he or she is no longer eligible for a derivative visa and must file a new petition under a different priority category for adult children. However, under the Child Status Protection Act (CSPA) amending the Immigration and Nationality Act, certain beneficiaries can retain classification as a child even if he or she has reached the age of 21 using the "priority date" (or date the petition was filed) of the original visa petition filed for their new petition, and thus receive an immigrant visa more quickly. At issue is the Board of Immigrant Appeal's interpretation of the CSPA (which is the basis of USCIS' decision), and whether CSPA unambiguously grants relief to all aliens who qualify as child derivative beneficiaries but age out. Previously, the 9th Circuit District Court deferred to the BIA's interpretation that children who have aged out are not eligible for an immigrant visa under the CSPA, but the Court of Appeals reversed that decision, finding that the BIA's interpretation of the statute conflicts with the plain language of the CSPA.
Sixth Circuit Finds Temporary Protected Status Holders Who Entered Unlawfully Can Adjust Status. The U.S. Appeals Court for the 6th Circuit has ruled that Temporary Protective Status (TPS) holders who entered the country without inspection are eligible to adjust to lawful permanent resident (LPR) status without departing the country first. In Flores, et al. v. USCIS, a Honduran national, Saady Suazo, entered the United States without inspection (EWI) in 1998, was granted TPS in 1999, has since remained in that status, and married a U.S. citizen in 2010. He then applied for marriage-based adjustment of status and was denied, as those who enter the country illegally are prohibited from adjusting under Section 245 of the Immigration and Nationality Act. Unsuccessful before USCIS, Suazo and his wife filed the action in federal district court arguing that TPS status allows for a path to adjustment and for the court to assume jurisdiction over the case and approve the LPR application. Their claims were dismissed, and Suarez appealed, bringing the case to the 6th Circuit Court of Appeals which reversed the district court's decision holding that the plain language of the TPS statute allows Suazo to be considered as being in lawful status as a nonimmigrant for purposes of adjustment of status. The court also held that USCIS' denial of the case is based only on the agency's own adjudication history and lacks statutory support, and that "the case illustrates the archaic and convoluted state of our current immigration system." The Obama administration has not indicated whether it will appeal the ruling.
Federal Judge Orders DHS to Disclose the Name of Criminal Noncitizens Released. On June 13, a New York District Court judge ruled that DHS must disclose the names of noncitizens with criminal convictions whose home countries refused to take them back and were released. The practice of releasing these noncitizens dates back to a Supreme Court decision in Zadvydas v. Davis, which held that unauthorized individuals scheduled for removal may not be detained for a period longer than six months where there is no significant likelihood of removal in the reasonably foreseeable future. In 2011, the Boston Globe filed a Freedom of Information Act (FOIA) request with Immigration and Customs Enforcement (ICE) seeking the names of such individuals released since January 2008. In response, the agency provided a list of 6,800 noncitizens (and their convictions but not their names). According to ICE, disclosing these noncitizens' names would cause an invasion of personal privacy. The Boston Globe appealed the agency's determination, lost, and then filed suit. In her opinion, Judge Shira A. Scheindlin rejected the Obama administration's argument that providing the newspaper with the names of criminal noncitizens would violate the immigrants' privacy and ordered the agency to make public a comprehensive list of criminal immigrants released in the United States since 2001.