Info on Specter's immigration proposal from NILC
Last week, Senator Arlen Specter (R-PA) circulated a draft of his long-awaited immigration reform proposal. The draft will form the basis for Senate Judiciary Committee consideration of immigration reform starting Thursday, March 2nd, and likely continuing with consideration of amendments each Thursday for the next 2-3 weeks. Senator Specter is the Chair of that committee.
If passed by the Judiciary Committee, the bill will then go to the Senate floor, where Senator Frist has scheduled debate to start on March 27th. This schedule could change, and the bill could look a lot different as it comes out of committee than it does today. If passed by the Senate, the bill will likely go to a House-Senate conference committee, where differences between it and the bill passed by the House of Representatives last December, H.R. 4437, will be negotiated. The result may well be a law which incorporates many of HR 4437's egregious provisions.
What is in the bill?
Weighing in at 305 pages, the Specter draft is an extreme disappointment, to say the least. It imports many provisions and concepts from H.R. 4437, House Judiciary Committee Chairman James Sensenbrenner's (R-WI) punitive and extreme proposal that passed the House last December. But unlike Rep. Sensenbrenner and his House colleagues, Senator Specter has made an effort to address the problems with our current system in a manner that goes beyond fences, punishment and “enforcement” alone.
Unfortunately, though, the temporary worker program and the new status for undocumented immigrants are deeply flawed. If adopted, they would create a permanent second-class status for many immigrants, encourage exploitation of immigrant workers, and deprive immigrants of rights otherwise taken for granted in the U.S.
A non-exhaustive sample of the “enforcement” provisions in the Specter draft includes:
• Increased border control mechanisms without balancing provisions to protect the rights of border communities;
• Increased detention, including restoration of indefinite detention under certain circumstances;
• Further broadening of the definition of “aggravated felony,” which already includes many relatively minor offenses; a conviction for such an offense precludes an immigrant from nearly all forms of immigration relief;
• New bars to naturalization for lawful permanent residents;
• Criminalization of immigration status violations (and by making unlawful presence in the U.S. a continuing criminal offense, this provision automatically would enlist state and local law enforcement officers in immigration enforcement);
• Criminal penalties for “facilitating” illegal entry into the U.S., a formulation that could include the work of many nonprofit agencies, or for “encouraging” an undocumented immigrant to remain in the U.S., a broad new crime that could apply to family members or other innocent parties;
• Restrictions making “voluntary departure” (a procedure that allows immigrants to avoid receiving a removal order, and the government to avoid the expense of a removal proceeding) less available;
• A massive new mandatory electronic employment verification system with few safeguards to protect workers from errors, misuse, or privacy lapses; and
• Restrictions on judicial review that would prevent most immigrants from having their day in court.
In addition to its enforcement provisions, the Specter draft includes provisions that:
• Aim to reduce family immigration backlogs;
• Set up a huge new guestworker program to address the future flow of immigrant workers; and
• Establish a new “nonimmigrant conditional worker” status for undocumented immigrants who have lived and worked in the U.S. since January 4, 2004.
Temporary worker provisions:
The temporary worker program would permit an unlimited number of individuals to come to the U.S. from abroad to work for 2 terms of up to 3 years each (for a total of 6 years) in job categories not covered by other temporary worker categories. This status would not provide any opportunity for the temporary worker to adjust to permanent status at the end of the 6-year authorized stay. An immigrant could leave her job during the authorized period of stay, but would have to find another one with an eligible employer within 45 days or return to her country of origin. To be eligible, an employer would be required to pay a fee and attest that the position meets a long list of requirements. The spouse and children of these workers would be able to come to the U.S., but would not be allowed to work. At the end of the second 3-year term, these workers would be required to return to their home countries for at least a year, with no provision allowing them to remain in the U.S. if they put down roots here.
Nonimmigrant status for undocumented workers:
The new program for undocumented workers who already live here would apply to individuals who were in the U.S. and working on January 4, 2004. They would be eligible to apply for a new “nonimmigrant conditional worker” status that would last indefinitely if they remain continuously employed. It would permit them to live and work in the U.S., and to be readmitted after traveling abroad. But their status would be precarious, and they would remain in a temporary status indefinitely, with no route to a green card or citizenship:
• All 9-11 million undocumented who are potentially eligible would be required to apply within the 9-month period between 3 months and 1 year after enactment.
• Those who fail to apply during this period would lose not only their right to obtain the new status, but would also be unable to apply for other kinds of relief from removal, such as, for example, the relief that is available for victims of domestic violence.
• Applicants would be required to waive their right to contest any future removal action regardless of the legitimacy of the action (the only exception would be if the applicant applies for asylum or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
• The immigrant's employer would be required to submit an affidavit attesting to current employment and to pay a $500 fee for each worker to continue such employment.
• The immigrant could not work for just any employer, but would be limited to positions that meet the requirements for hiring guestworkers, such as, for example, that the employer has filed a petition with DHS and paid a fee and has attempted to recruit U.S. workers for 90 days prior to hiring the undocumented immigrant.
• If the immigrant loses her job and is unable to find another with this limited pool of employers within 45 days, she would also lose her nonimmigrant status and be required to leave the U.S.
• The immigrant would not be eligible for any new federal public benefits, and depending on how the provision is interpreted, she could actually lose access to the few benefits that she now can receive such as emergency health care and testing and treatment of communicable diseases.
• The spouse and children of a worker in this nonimmigrant category would be able to remain in the U.S., but would not be authorized to work.
These requirements would leave immigrants and their families vulnerable and subject to exploitation, and are a far cry from the legalization that is needed. Consider, for example, the impact on undocumented students who have grown up in this country. If they were in school and not working on January 4, 2004, they would not be eligible to remain in the U.S. unless they have a parent or spouse who qualifies as a worker. Even if they do have a qualified parent or spouse, the student would not be able to work legally now or in the future. If the spouse or parent subsequently leaves the U.S. or otherwise loses the status, the student would also lose her ability to remain. If, on the other hand, the student was working on January 4, 2004, the student would be required to be continuously employed by one of the certified guestworker employers, a requirement that would likely require her to leave school.
You can find a complete section-by-section summary prepared by the United States Catholic Conference with the assistance of many groups, including NILC, by clicking here.
As discussed above, the Specter draft will be considered in the Senate Judiciary Committee starting tomorrow. During this committee “mark-up”, Senators are expected to introduce a multitude of amendments, some of which would greatly improve the bill, others of which would make it even more punitive. Among the latter, we can expect amendments to build a fence along the border, to coerce state and local police into enforcing civil immigration laws, and many others. Among the former, we can expect amendments to strike or modify many of the most extreme “enforcement” provisions and efforts to re-write the bill to make it more closely resemble Senators McCain and Kennedy's immigration reform proposal, S. 1033. Other improvements such as the DREAM Act may also be offered as amendments.
At this time, the outcome of this debate is far from certain. It is very possible that a Sensenbrenner-like bill could be enacted by this Congress and signed by the President unless more outrage against such an outcome is expressed in the coming weeks and months.
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