Expansive Bipartisan Bill Introduced on the Heels of REAL ID Passage
By Jennifer Yau
Migration Policy Institute
June 1, 2005
Policy Beat In Brief...
Bipartisan Group Introduces "Secure America and Orderly Immigration Act"
A bipartisan group of congressmen led by Senators John McCain (R-AZ) and Edward Kennedy (D-MA) have introduced one of the most sweeping immigration reform bills of the past two decades.
The "Secure America and Orderly Immigration Act" would open a new channel to the US for low-skilled temporary workers while giving those already in the US an opportunity to gain legal status if they do not already have it. It would also provide a path to permanent residency for these two groups.
Representatives Jeff Flake (R-AZ), Luis Gutierrez (D-IL), and Jim Kolbe (R-AZ) are the lead sponsors in the House.
The proposal, as it was introduced in both the Senate and the House on May 12, 2005, includes the following:
The Essential Worker Visa Program. Under this program, a new "H-5A" temporary-visa category would be created for foreign workers entering to fill non-agricultural jobs requiring few or no skills. The maximum number of visas would initially be set at 400,000, with automatic cap adjustments for subsequent years based on whether and how soon the visas are exhausted before the end of a fiscal year.
Entry with an H-5A visa is conditional on proof of a job offer in the US and payment of a $500 fee, in addition to other processing fees, background checks, and a medical examination. Employers would first have to advertise job opportunities to US workers for 30 days through America's Job Bank, an online database hosted by the Department of Labor, before they could offer the job to a non-US resident. The bill would also provide recourse to workers facing illegal employer practices, and would allow those who lose their jobs to stay in the country for up to 60 days to find a new one or return home.
The visa would expire in three years, but the temporary worker would be able to seek an extension for one more three-year period. H-5A holders would also be eligible for permanent residency through an employer's sponsorship or, after four years of accumulated work history, their own application.
Under current law, foreign workers who enter the US to perform low-skilled, non-agricultural temporary work with an H-2B visa face a much lower annual cap of 66,000 visas. (There are no annual limits on the number of foreign, temporary agricultural workers, who enter the US under H-2A visas.)
Additionally, while employers seeking temporary low- or non-skilled workers must now obtain a labor certification verifying that jobs are not taken away from US workers, the H-5A would offer a more streamlined labor market test. Unlike current visas for low- or non-skilled temporary workers, the H-5A would be portable across employers, potentially mitigating chances for workplace abuse. Also, the new H-5A visa would provide a path to permanent residency that, in contrast to existing laws, is not dependent on employer sponsorship.
Legal status for undocumented immigrants. Undocumented immigrants present in the US on the date of the legislation's introduction to Congress — May 12, 2005 — would be eligible for an "H-5B" temporary visa. The temporary visa would be granted contingent upon payment of a $1000 fine and other fees, proof of work history, and criminal record and security checks. Spouses and children would also be eligible.
The visa would be valid for six years. H-5B holders would be able to apply for permanent residency, once they meet requirements regarding work history, language, civics, and other areas. At this time, the applicant would pay a fine of an additional $1,000 per adult. Thus, the total process, from legalization to permanent residency, through this channel would cost approximately $2,000 per adult.
Family unity and backlog reduction measures. Immediate relatives of US citizens would not be counted against the existing 480,000 annual ceiling applied to family-sponsored green cards. This would expand the number of visas in all other categories of family-sponsored immigration, thereby reducing the backlog for available visas. The gap between the high demand for visas and the number available by law each year has resulted in long waiting periods, in some instances exceeding a decade.
The bill would also reduce barriers to family reunification by lowering income requirements for sponsoring families from 125 percent of the federal poverty guidelines, which are used to determine eligibility for government programs, to 100 percent. The current income requirements were established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Per-country limits on the number of green cards that can be issued across all immigration categories would be slightly raised above the current 25,600 ceiling. The cap for employers hiring permanent workers would also be raised from 140,000 to 290,000.
Working with countries of origin to promote circular migration. Another main pillar of the legislation is its focus on promoting circular migration in conjunction with countries of origin. The proposed law would require foreign governments whose nationals participate in the H-5A program to enter into agreements with the US.
The bill specifically encourages the US to collaborate with Mexico to counter the root causes of immigration through economic development. It would also hold the Mexican government responsible for ensuring and funding access to health care for its nationals who are temporarily employed in the US. Furthermore, it would examine the issue of uncompensated health care costs incurred by the US due to undocumented immigration.
Enforcement. A new electronic work authorization system would be developed by the Social Security Administration and applied universally, replacing the current, paper-based I-9 system. The system would rely on machine-readable documents with encrypted information. Also, the Department of Labor would be given new authority to audit employers for compliance with labor laws, and fines for violations against such laws would be enhanced. The bill also would require biometric identifiers to be a part of any immigration-related document which indicates whether or not the worker has legal status in the US.
Although current law holds employers accountable for verifying the legal status of their workers, the prevalence of fraudulent documentation has been one of several factors making this system impossible to enforce.
Border Security. A "National Strategy for Border Security" would be developed, with identification of border points and points of entry that merit more attention and protection. It would also include an evaluation of the most appropriate and cost-effective means of defending the US’s international borders; prioritization of border security resources based on risk-assessments; and plans for coordination among federal, state, regional, local, and tribal authorities.
Stakeholders from border regions would provide input through a Border Security Advisory Committee. Partnerships with Canada and Mexico would promote a “North American Security Perimeter” and border security south of the US-Mexican border.
Protection against immigration fraud. Immigrants defrauded by unlicensed immigration law practitioners would be allowed to file actions against the perpetrators.
Integration. The bill would augment the efforts of the US Customs and Immigration Service (USCIS) by creating a public-private foundation to support the promotion of citizenship, civics, and English-language classes for immigrants.
Reimbursement of costs to states. Hospitals would receive federal reimbursements for providing emergency services to undocumented immigrants and holders of H-5 visas. While current law allocates such funds until 2008, the bill extends this to 2011.
Similarly, the bill would reauthorize the State Criminal Alien Assistance Program that provides federal dollars to reimburse state and local governments for incarceration of undocumented migrants convicted of crimes. Earlier this year, the President Bush’s 2006 Budget proposed the program’s elimination.
The bill also would allow for funding of other associated criminal justice costs.
Reactions to the Bill
The bill has elicited the strongest public reaction regarding its legalization, temporary-worker program, and permanent residency provisions.
Critics see the bill as an amnesty program that does nothing to penalize immigration outside of legal channels. Doubts exist about the current immigration system’s capacity to deal with an increased number of temporary workers and green card applicants and negative wage impacts. At least one border-state congressman has denounced the bill as costly to his constituents.
Proponents view the bill as extending the protections of legal status to those who have earned it through proven work history; they further counter the idea that it is an amnesty by noting the substantial fines required. Some have noted that many undocumented immigrants have children who were born in the US, and, as such, are American citizens.
Those in favor of the new temporary-worker program say it reflects economic realities, and that it anticipates future demand for workers in a way that the last immigration reform of 1986 did not. Immigrant advocacy groups have lauded the permanent residency provisions as the right incentive for undocumented workers to come forward.
The White House, which first announced support for a temporary-work program in January 2004, noted only that President Bush would work closely with Congress to promote legislation in line with his principles.
Among the differences between the White House proposal and the Secure America and Orderly Immigration Act is that the bill opens a new channel for applying for permanent residency while the President’s proposal does not. (For a description of the President’s proposal, click here.)
To view the text of the legislation as it was introduced on May 12, 2005, click here.
- For background information on how sending and receiving countries have coordinated efforts to manage migration flows, click here.
- The National Immigration Forum, "McCain/Kennedy Kolbe/Flake/Gutierrez 'The Secure America and Orderly Immigration Act' Section-by-Section Analysis." Available online.
- Section 101 of the Immigration and Nationality Act. Available online.
- US Customs and Immigration Services "Immigration Classifications and Visa Categories: Nonimmigrants." Available online.
- The National Immigration Forum, "Immigration Backlogs are Separating American Families." Available online.
REAL ID Act Passed with Contentious Measures, Changes to Visa Caps
House and Senate lawmakers have passed provisions of the REAL ID Act as part of an $82 billion supplemental military funding bill. The legislation kept intact provisions to bar undocumented immigrants from obtaining federally accepted drivers' licenses, complete a border fence in California, raise standards for asylum applicants, and expand grounds for deportations due to terrorist-related activity.
In addition, the spending law exempts returning seasonal workers from the annual H-2B visa cap; removes the yearly 10,000 cap for asylees adjusting to permanent resident status; removes the 1,000 cap for asylum granted on the basis of coercive population control measures; adds 50,000 more visas for nurses and physical therapists; and grants 10,500 more visas to temporary high-skilled workers from Australia.
- To view the text of the legislation as it passed on May 11, 2005,
Policy Beat in Brief
Medical Costs and the Undocumented. The Centers for Medicare and Medicaid Services (CMMS) have set aside $1 billion through 2008 to reimburse hospitals for the costs of treating undocumented immigrants. The use of medical facilities by undocumented immigrants has been a long-standing issue, especially for hospitals along the US-Mexican border.
H1-B Clarification. US Citizenship and Immigration Services (USCIS) clarified that 20,000 additional H-1B visas approved by Congress earlier in the fiscal year would be available only to those with master's-level degrees or higher. USCIS announced in March that bachelor-degree holders, who are regularly eligible for the high-skilled, temporary-worker visa, could apply for the additional slots. Critics alleged that this was in conflict with Congress's intent, and that USCIS had issued the loose interpretation to make up for already exceeding the regular visa cap.
Machine Readable Passports. The Department of Homeland Security (DHS) announced that starting June 26, 2005, all persons traveling under the Visa Waiver Program (VWP) must present a machine-readable passport to enter the United States without a visa. Airlines will be fined $3,300 per violation. While regulations to this effect have been in place since October 26, 2004, VWP travelers have been granted a one-time entry at no charge.
GAO Reports. A Government Accountability Office (GAO) study found that the management challenges faced by the Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) bureaus were similar to those experienced by the Immigration and Nationality Service (INS) before the Department of Homeland Security (DHS) was formed. The report covers challenges related to clearly delineated responsibilities, competing priorities, effective coordination, and automation systems.
A separate GAO report details the criminal history of aliens incarcerated in federal and state prisons or local jails who had entered the country illegally. Nearly all incarcerated aliens had more than one arrest, 45 percent of all offenses were drug or immigration-related, and 80 percent of all arrests occurred in three states — California, Texas, and Arizona.
- To view a press release about federal reimbursement for undocumented immigrant medical costs,
- To view a USCIS press release on the H1-B ruling,
- To see a DHS press release on the VWP regulation,
- To view the GAO report, "Department of Homeland Security: Addressing Management Challenges That Face Immigration Enforcement Agencies,"
- To view the GAO report, "Information on Certain Illegal Aliens Arrested in the United States,"
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