4 (Relatively) Quick Takeaways From Senate Immigration Reform Bill

The just released Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 is 844 pages long piece of legislation crafted by a bi-partisan group of 8 Senators, four Senate DemocratsChuck Schumer (NY), Dick Durbin (IL), Bob Menendez (NJ), and Michael Bennet (CO and four Senate Republicans John McCain (AZ), Lindsay Graham (SC), Marco Rubio (FL), and Jeff Flake (AZ). There is a lot of immigration policy to navigate in this legislation, below please find four big takeaways from the bill.

1. Pathway to Citizenship is Earned: The Senate bill provides a legalization program that could put most of the 11 million undocumented immigrants on the road to eventual citizenship.  This is a several step legalization program that first allows people to apply for “Registered Provisional Immigrant” (RPI) status and then, after 10 years, for lawful permanent resident status, and then after 3 more years U.S. citizenship.

Below are some of the specifics to orient your understanding of this process.

  • Registration Requirements: Immigrants who entered the United States before December 31, 2011 and have been physically present in the U.S. since that time will be eligible to apply for Registered Provisional Immigrant (RPI) status provided they pass a background check, have not been convicted of a serious crime, pay any assessed tax liability, and pay appropriate fees and a $500 fine. Initial registration will be valid for six years. It provides for work and travel authorization, and includes spouses and children in the United States on the same application. 
  • Renewal: RPIs applying for renewal will be subject to a new background check, payment of processing fees, payment of taxes, and a $500 fine. RPIs must provide evidence of having been 1) regularly employed while meeting a requirement that he/she is not likely to become a public charge or 2) having resources to demonstrate 100% of the poverty level.
  • Adjustment of Status to Permanent Residency:  At the end of ten years, RPIs may apply for adjustment of status, provided that they demonstrate: 1) they are admissible, 2) pay an additional $1000 fine per adult plus application fees; 3) prove they are learning English; 4) pay their taxes; 5) pass a background check and 6) demonstrate compliance with the employment requirement. Specifically, they must show: 1) theyhave regularly worked in the U.S. such that they are not likely to become a public charge or 2) they have resources to meet 125% of the Federal Poverty Level. Under the revamped legal immigration system, individuals present in the U.S. for 10 years in lawful status can adjust status to lawful permanent residence including RPIs and other legal immigrants. RPIs may apply for naturalization after an additional three year wait, making the total path to citizenship about 13 years. The bill includes a “back of the line” requirement: RPIs may not adjust status until the family and employment backlogs are cleared.

2. Border Plan is Comprehensive: Stage one requires the DHS Secretary to develop a Comprehensive Border Security Strategy and Southern Border Fencing Strategy within six months before the registration period for Registered Provisional Immigrant status (RPI) begins.  These strategies must be designed to achieve persistent surveillance of the border and a 90% effectiveness rate for apprehensions and returns in high risk border sectors. The bill appropriates $3 billion for this plan which will include technology, personnel and other  resources.  It also provides funding for 3,500 additional Customs agents (OFO Officers) nationwide.

The “triggers” require the Secretary of Homeland Security to submit, within 6 months of enactment, two plans. The first is a strategy to achieve a 90% effective rate goal in high risk sectors of the Southern border. The second is a fencing plan designed to reinforce current fencing and barriers. The initial legalization program does not begin until these plans are submitted.  The legalization program also will not begin until implementing regulations are issued – within 12 months after enactment of the bill.

If, after five years, the 90% effectiveness rate in high risk sectors has not been achieved, an additional pool of resources will be authorized for appropriation and a commission of experts and elected officials from border states will be formed. The border commission will issue recommendations to DHS regarding additional measures that should be adopted to help reach the 90% effectiveness rate goal. 

Two other enforcement “triggers” that have to be met before RPIs can apply for permanent residence involve  implementation of the E-Verify program and entry-exit controls at air and sea ports. Both of these triggers are achievable and should not delay the path to permanent residence.

  • Reallocation of Customs Agents From Northern to Southern BorderThe second thing that this section of the legislation does is allow the Secretary of the Department of Homeland Security to reassign or station U.S. Customs and Border protection officers and agents from the northern border to the southern border. They are authorized to be appropriated as such from the Comprehensive Immigration Reform Trust Fund established by this piece of legislation.
  • DHS Oversight: To protect the integrity of the system, additional resources and training will be devoted to implementing a DHS-wide use of force policy and associated training in appropriate use of force and the impact of federal operations on border communities.  A Border Oversight Taskforce is established to take testimony and conduct hearings in order to review and recommend changes to existing border policies.  The current duties of the USCIS Ombudsman’s office will be expanded to encompass all DHS immigration functions. DHS will be required to issue regulations on racial profiling that are based on a study analyzing individualized data on DHS officers enforcement activity.

3. Expedited Path for DREAMERs and Farmworkers: DREAMERs can earn permanent legal status within five years, and are then immediately eligible to apply for U.S. citizenship.  DREAMERs who have been previously deported may still be eligible to apply for legal status if they meet certain requirements, even if they don’t have a qualifying U.S. relationship. Farmworkers are eligible for an expedited five year path to permanent legal status and then eventual citizenship under current law.  In order to qualify, among other things, they must continue working in the agricultural sector for an additional 3-5 years post-enactment. 

Other essential workers may apply for a new “W” worker visa which will allow them to enter and work in the U.S. for participating employers, change jobs to other W employers, and eventually self-petition for lawful permanent status under the new merit based program.

Both the W visa program and the new agricultural worker program are subject to important standards for wages and working conditions, negotiated by labor to protect both immigrant and native-born workers. Finally, there are new protections against employers using immigration status to intimidate workers and to prevent international recruiters from misleading or otherwise mistreating those they bring to the U.S.

4. Changes To High Skill Visa Programs Are Significant:   This legislation does away with caps for the highest skilled employment based green cards.   The legislation also changes the H-1B high skilled visa program by expanding the current cap from 65,000 to 110,000 with an option to ultimately increase the cap to 180,000 visas annually based on a High Skilled Jobs Demand Index.

The legislation also allows for work authorization for spouses and children.  Increases requirements for recruiting and offering jobs to U.S. workers at higher wages prior to hiring foreign workers. Increases fines and wage requirements for companies that are heavy-users of H-1B visas. After 3 years, companies whose workforce is more than fifty percent H-1Bs are barred.