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Solving the Unauthorized Migrant Problem: Proposed Legislation in the US
By Eliot Turner and Marc R. Rosenblum
Migration Policy Institute
Both the size of the United States' unauthorized population and the
inability of the immigration system to adequately handle influxes have returned
comprehensive immigration reform to the national debate. Several legislative
proposals are pending before the 109th Congress.
These bills recognize the size of the unauthorized population, but each proposal
advocates a different method for reducing it, including
in some cases by trying to anticipate and accommodate further flows through
guest worker programs.
The two leading proposals are the "Secure America and Orderly Immigration
Act" (S. 1033/ H.R. 2330), a bipartisan, bicameral bill introduced by
Senators John McCain (R-AZ) and Ted Kennedy (D-MA), and concurrently by Representatives
Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL); and the "Comprehensive
Enforcement and Immigration Reform Act" (S. 1438), sponsored by Senators
John Cornyn (R-TX) and Jon Kyl (R-AZ). The "Secure America and
Orderly Immigration Act" also enjoys the sponsorship of Senators Sam
Brownback (R-KS), Joe Lieberman (D-CT), Lindsey Graham (R-SC), and Ken Salazar
(D-CO) as well as 15 additional House co-sponsors.
Both of these proposals have, to varying degrees, embraced the "three-legged
stool" approach established by the Immigration Reform and Control Act (IRCA) of 1986:
enforcement, employer sanctions, and legalization.
Two other comprehensive immigration reform bills have been introduced in the
House: the "REAL GUEST Act" (H.R. 3333) by Representative Tom Tancredo
(R-CO) with two co-sponsors and the "Save America Comprehensive Immigration
Act" (H.R. 2092) by Representative Sheila Jackson-Lee (D-TX) with 21
co-sponsors. Jackson-Lee supports the Kennedy-McCain bill and views her
legislation as a complementary bill that addresses specific issues.
Below is a comparison of each piece of legislation on four areas: enforcement,
employer sanctions, legalization, and guest worker programs.
For an expanded comparison, please download the side-by-side chart
The authors of each bill have addressed the public desire for stronger immigration
enforcement in various ways.
The Cornyn-Kyl bill puts forward a robust and detailed plan for increased
border and interior enforcement. The bill would
The Tancredo bill also emphasizes enforcement. It would
- authorize appropriations for the acquisition of technology and hiring of
Border Patrol agents, Department of Homeland Security (DHS) investigators,
Customs and Border Protection (CBP) inspectors, and both DHS and the Department of Justice
- expand the use of expedited removal to all sectors of the US-Mexico border
and would increase the detention capacity for Immigration and Customs Enforcement
- clarify the "inherent right" of states and municipalities to
assist in the enforcement of federal immigration law, and would prohibit
policies that prevent law enforcement officers from sharing information
on immigration status with DHS.
The Kennedy-McCain bill gives DHS more latitude in designing the measures
it sees as necessary for effective border control. The bill would
- increase the number of CBP officers, ICE attorneys, fraud investigators,
and detention and removal officers.
- allow for the military to be deployed to support the border patrol.
- clarify that state and local law enforcement officers may assist in the
enforcement of federal immigration law.
- make entry without inspection and unauthorized presence in the United States
The Jackson-Lee bill does not focus strongly on enforcement, but it would
increase by 5,000 the number of CBP inspectors over the next five years, and
would allow state and local government to determine whether or not to participate
in immigration law enforcement.
- call on the department to design and implement a strategy for control of
the southern border.
- mandate increases in personnel and technology, and would authorize the necessary
appropriations, but not in any specific amount.
- require DHS to develop and coordinate a plan of action with state,
local, and tribal authorities to combat human smuggling, though it does not
vest local or state authorities with an expansion of powers to enforce immigration
- call for DHS to work in concert with other North American governments
to secure their external borders.
- require the US to provide technical assistance to Mexico for the screening
of third-country nationals and to help Mexico secure its southern border.
In response to President Bush's (unspecified) request for stronger employer
sanctions against those who continue to employ unauthorized immigrants, each
bill's authors have crafted new ways to penalize such employers.
In regards to employer sanctions, both McCain-Kennedy and Cornyn-Kyl would create
a series of similar mechanisms for enforcing employer violations of labor laws. These
The Tancredo bill would also require a work authorization system and would provide more
severe penalties for employers who violate labor laws. Specifically,
the bill would replace penalty ranges with flat fees set at more than double
the current maximum amounts.
- require that employers participate in an electronic system for work authorization
- require a reduction in the number of documents currently acceptable to
prove authorization and the issuance of secure, tamper-resistant cards with
biometric identifiers for use as visas.
- double the upper and lower bounds defining the range of fines employers
could be charged for different types of IRCA violations.
In contrast, the Jackson-Lee bill focuses primarily on the adverse impacts
on minority native-born employees, encouraging employers to make attempts to
advertise and contract American minority employees. It also establishes
immigration status-related intimidation as an unfair labor practice.
Opportunities for Unauthorized Immigrants
The greatest variation among the legislative proposals is their approach to the
current unauthorized population. While the Jackson-Lee and Kennedy-McCain
bills would offer ways for the currently unauthorized to achieve legal status, the
Cornyn-Kyl bill only would provide the opportunity to accept Deferred Mandatory
Departure status (with no chance for permanent adjustment of status), and the
Tancredo bill would offer no program at all for unauthorized immigrants.
The Cornyn-Kyl bill would
The Kennedy-McCain proposal seeks to implement "earned legalization," in
which unauthorized migrants would
- allow qualified unauthorized migrants to remain legally in the United States
for up to five years by accepting Deferred Mandatory Departure status. (The
mandatory departure scheme creates incentives for migrants to leave in fewer
than five years by levying a progressively increasing fine for each year
a migrant remains in the United States, beginning two years after the bill's
- not permit migrants to adjust to legal permanent resident status at the end of their Deferred
Departure period, but they may leave the United States and apply for immigrant
or non-immigrant admission without penalty.
- cause migrants to lose a year of guest-worker eligibility for each year spent in Deferred Departure status.
Similarly, the Jackson-Lee bill would
- apply for an H-5B visa, which would be valid for three years and renewable
- demonstrate that they had been working without authorization in the United
States on May 12, 2005; paid taxes; and had satisfactorily completed a criminal
and security background check. They would also need to be studying
English, as well as US civics and history, at the time of application.
- be assessed a $1,000 penalty and would have to pay application fees.
- adjust to legal permanent resident status after holding an H-5B visa for six years and paying a second $1,000 fine.
Guest Worker Programs
- grant earned legalization to immigrants who have resided in the US for
five years, who demonstrate knowledge of English, who have no criminal convictions,
and who complete 40 hours of community service.
- update the Immigration and Nationality Act (INA) registry date from 1972
to 1986, allowing unauthorized migrants who have resided in the United States
since that date to adjust to legal permanent resident status.
While the Jackson-Lee bill does not consider formal guest worker programs,
the other bills each contain a provision to deal with the flow of foreign temporary
workers to the United States.
Types of visa
The Cornyn-Kyl bill would
The Kennedy-McCain bill would
- create a class of guest worker visa (W) that would be effective for a period
of two years. The visa could be renewed twice—for a total of six years—but
renewal would only come after a one year interlude spent outside the country. (W
visa holders who work in the US for less than six months as seasonal agricultural
workers would not have to satisfy this requirement and neither would those
who commute to the US and maintain a residence in their country of origin.)
- not create an automatic path to permanent residency through the W-visa,
but W-visa holders would be able to adjust to legal permanent resident status through extant legal
channels, such as the existing family reunification, diversity lottery, and
employment immigration programs.
In contrast, the Tancredo bill would eliminate all current H visa categories
and replace them with a single H category that would give H-visa holders 365 days
over a two-year period, subject to renewal. H-visa holders would not be eligible
to adjust to LPR status under any circumstances.
- create the H-5A visa, which would be valid for a period of three years and renewable
once, with no waiting period between renewals.
- allow an adjustment of status at the end of four years — through self-petitioning
or at any point through the sponsorship of the employer.
Portability of visas
The Cornyn-Kyl and Kennedy-McCain bills would vest their new guest worker visa categories
with portability. The Tancredo bill does not address the issue.
Employer's role and visa allocation
- The Cornyn-Kyl plan would allow 30 days to find new employment after dismissal
- The Kennedy-McCain bill says workers would need to find new employment within 60
days of dismissal or resignation.
Under the Kennedy-McCain H-5A program
Under the Cornyn-Kyl proposal
- employers would have to attest that they have attempted to hire an American
worker — and have been unable to do so — through the America's
Job Bank, an electronic database run by the Department of Labor.
- workers with H-5A visas would have to be hired as employees, rather than
as independent contractors.
- initial allocation of 400,000 H-5A visas would have to be adjustable on
the basis of annual demand.
The Tancredo bill also would require employers to demonstrate that they have
attempted to hire an American worker. Additionally, it would require employers
not to have laid off citizen workers in the previous six months.
- employers would need to prove they have attempted to hire an American worker.
- a task force on guest workers could make recommendations about visa
allocations to the Department of Labor.
Requirements for participation
The Cornyn-Kyl bill would
The McCain-Kennedy bill would
- require that in order for a country's citizens to participate in
the guest worker program, their government would need to enter into an agreement with
the United States to help facilitate return migration.
- create a worker investment fund to further create incentives for guest
workers to return to their country of origin.
- mandate health insurance for all participants that would be provided either
by themselves, their employer, or their country of origin.
- require visa applicants to pay a $500 fee.
The Tancredo bill would
- require cooperative international programs that would create and foster
economic opportunity in the source countries.
- require visa applicants to pay a $500 fee.
- require applicants to waive government assistance.
- deny citizenship to children of H-visa holders unless the child's
other parent was a US resident or legal permanent resident.
- Require visa applicants to pay an unspecified fee.
The Kennedy-McCain bill would allow the families of H-5A workers to accompany
them to the United States, whereas the Cornyn-Kyl bill would only allow for a 30-day
visit during any one year. The Tancredo bill would make no provisions for families
of guest workers.
Marc R. Rosenblum is an International Affairs Fellow at the Council on Foreign Relations and a Visiting Scholar at the Migration Policy Institute.
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