Immigration Reform: This Time It's Different

AP Photo/Charles Dharapak

Senator Charles Schumer, a Democrat from New York, leads a "Gang of 8" news conference on Capitol Hill in Washington to discuss the group's immigration-reform legislation. 

Wednesday's release of the Gang of Eight's 844-page immigration-reform bill has taken a backseat to the coverage of the Boston bombings, currently hurtling toward a tense denouement. Immigration-advocacy organizations pushed back their press calls, and the senators behind the bill cancelled their press conference altogether. But the bill represents a sea change in the way the United States handles immigration. With a wide path to citizenship for the 12 million undocumented immigrants currently in the country and a major overhaul of the family- and employment-based immigration systems, it is a decisive shift away from the economic protectionism and anti-immigrant vitriol of the 2007-2008 immigration debate.

"If you think of the 2007 bill as first- and second-generation thinking, this is probably ninth-generation thinking," said Demetri Papademetriou, executive director of the Migration Policy Institute. "Essentially, we have gotten tired as a people of the extremist debates of the mid-2000s about illegal immigration—some of the passion, some of the extremism has dissipated."

The Republican Party’s hardline opposition to a path to citizenship is also dissipating, perhaps prompted by Obama’s re-election with 70-percent Hispanic support and the 64 percent of Americans who now support helping the undocumented become citizens. The dynamics of immigration have changed as well: Net migration to the U.S. has dropped to zero since 2012 because of increased enforcement (including a record number of deportations), the economic downturn, and improving conditions in Mexico.

The last major overhaul of the immigration system was the 1986 Immigration Reform and Control Act (IRCA), signed into law by President Ronald Reagan. As with the current bill, the IRCA conferred legal status on 3 million undocumented immigrants living in the country. But the act failed to account for the future flow of immigrants. By reforming the legal immigration system and establishing a Bureau of Immigration and Labor Market Research to assess ongoing labor-market needs, the proposal now on the table hopes to avoid the same fate.

The Undocumented

The centerpiece of the current legislation—and the part that will be most fiercely debated—is the 13-year legalization program for the undocumented, which would allow those who have been present in the country since December 31, 2011 to pay a $500 fine and register as a "provisional immigrant." After six years, the applicant must pay an additional $500 fine to renew their status. After ten years, the applicant can apply to become a legal permanent resident. Three years later, he or she can apply for a green card, a process that involves about $1,000 in fees.

The current proposal is far less punitive than the 2007 proposals, which would have required the undocumented to return to their home countries and made the path to citizenship more onerous with exorbitant fees and delays. The current bill would allow the undocumented to remain in the country, work, and travel as if they were permanent residents. What's more, many of those who have been deported would be eligible to return to the U.S. if they have spouses or children in the country.

While the proposed 13-year "path to citizenship" is a long one—about 70 percent of undocumented immigrants have already been here for ten or more years—the legalization program is more generous than many had expected. Rather than adding millions of names to a backlog that is already decades long for people from certain high-volume immigration countries, the current framework streamlines the process by creating a separate legal status for the undocumented. Immigrant-rights advocates had feared the fines would be prohibitive—during the 2007 immigration-reform debate, some proposals suggested as high as $10,000. While $2,000 is still a lot of money for the many unskilled immigrants among the 12 million, the payments are staggered and the amount is within reach for a minimum-wage worker.11 The bill, however, does exclude immigrants from Obamacare. But unless one forgets representative Joe Wilson's "You lie" outburst at Obama's 2009 State of the Union address, it was never conceivable that a bill allowing immigrants into social-welfare programs would make it past Republicans in either chamber.

"I’ve helped draft a number of comprehensive-immigration bills over the last ten years and this is not necessarily the one I would have drafted," said Marshall Fitz, director of immigration policy at the left-leaning Center for American Progress. "But in terms of a bipartisan compromise in which you have members reaching a consensus on these provisions is really exciting."

Like other immigrant-rights advocates, Fitz stresses that the proposal will undergo significant changes as it is debated and amended in Congress and faces considerable opposition. Groups like Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies (CIS)—two prominent anti-immigration groups—have already lambasted the proposal as "amnesty" and warned about the dire consequences of granting the undocumented legal status. Iowa Republican Steve King has called the proposal "aggressive and outrageous amnesty."

While controversial among many conservatives, moderate Republicans as well as high-profile pundits like Fox News's Sean Hannity have voiced support for some sort of legalization program. Immigrant-rights advocates I spoke to seemed optimistic about the program, which they consider the heart of the bill, making it into law. But with the lengthy markup and amendment process ahead, the question is in what form it will survive.

"What we’ll be fighting to ensure is that it doesn’t get increasingly narrow in a way that prevents people from actually reaching the finish line; there will be plenty of efforts of opponents to do that to shrink the path and make it a precarious trek rather than a wide and welcoming path," he said.

Employment-Based Immigration

In addition to dealing with the undocumented, the bill makes significant changes to the legal immigration system, which is key to ensuring that, 20 years down the line, the U.S. doesn't again find itself with huge backlogs and a significant population of undocumented workers. First, the bill would clear out the current backlog of employment- and family-based visas. Going forward, it would nearly double the number of employment-based H1-B Visas for high-skilled workers, from 65,000 to 110,00, and eliminate the caps for a certain subset22 According to a 17-page summary released by the Gang of Eight, these would include "derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in STEM field; and physicians who have completed the foreign residency requirements or have received a waiver." of them altogether.

On the low-skilled front, the proposal creates a guest-worker program along with a federal bureau to assess ongoing labor-market needs and adjust the number of visas available accordingly. After it is fully implemented, the guest-worker program would grant up to 200,000 "W" Visas per year and include a "safety valve" to dip into the next year's quota. In an apparent concession to organized-labor groups, whose objections to the guest-worker program in the 2007 immigration-reform bill helped sink reform efforts, the caps in the first few years after implementation are quite low: 20,000 for the first year; 35,000 the second year; 55,000 the third year; and 75,000 the fourth year. The number of visas for construction workers is also limited to 15,000 per year.

On a press call this week, some business groups openly worried the program would be too small. "If it were represented as a model without a key, you'd zoom out and see it's too small," said Tamar Jacoby, president, ImmigrationWorks USA. "The question that's being posed is, over next two or three decades, will lower-skilled immigration into the U.S. be legal or illegal? If they get the size of the program wrong, we're going to get that answer wrong."

Representatives of the construction industry are particularly concerned about the number of visas available to construction workers. "This program is not designed to meet the needs of the construction industry," said Geoff Burr, vice president of federal affairs for Associated Builders and Contractors. Burr said that the industry needs approximately 1.5 million low-skilled workers to meet demand. One solution would be to simply remove the special restrictions for construction workers, including them in the general pool of unskilled workers, Burr said.

Despite these concerns, business-interest groups seemed hopeful they would be able to reach compromises in the coming months. "All of labor and agriculture is united," said Leon Sequeira, counsel for USA Farmers. "That's not something that's existed in the past. We've realized we've had to come together and are look forward to seeing this effort produce a successful bill."

Merit-Based Immigration

One of the most noteworthy innovations in the new bill is the introduction of a "merit-based" immigration program. Whereas applicants for employment-based visas need an employer to sponsor them, the merit-based visa makes available 120,000 green cards per year under a point system that takes into account skills, education, family ties, and duration in the country. Madeleine Sumption, a policy analyst at the Migration Policy Institute, says that whereas employment-based immigration is intended to satisfy immediate market needs, merit-based immigration is "more geared toward increasing the pool of human capital."

The merit-based visa is also intended to compensate for a number of other immigration tracks that will be closed. The current bill would eliminate family-based immigration for siblings and parents of current immigrants as well as the "diversity visa," which currently allocates 55,000 green cards per year for low-immigration countries. "It's a mishmash of different interests that have been thrown in," Sumption says. One problem in other countries with merit-based systems—such as Canada and Australia—is that, because merit-based visas are not directly tied to employment, many awardees find themselves unable to find a job once in the host country. The proposed point system in the U.S. favors those with previous work experience in the country as well as a job offer.

Family Immigration

In the massive 844-page bill, the changes to the family-based immigration system are perhaps the most straightforward. The bill would eliminate caps for spouses and children of U.S. immigrants and allow them to come into the country immediately; current law often requires family members to return to their home countries and wait in years-long backlogs in order to be reunited with their families. To the chagrin of some advocates, however, the bill would eliminate family-based immigration for non-immediate family members, including siblings and parents. This has been of particular concern to members of the Asian-American community, which culturally considers siblings and grandparents part of one's immediate family. Non-nuclear family members, however, would be eligible to apply for citizenship under the "merit-based" system.


Further enforcement measures are largely in the bill to satisfy Republicans, who despite unprecedented investment by the Obama and Bush administrations in securing the border remain convinced it is dangerous. The legalization program would be contingent on a number of benchmarks being met by the Department of Homeland Security, but as CAP's Fitz points out, these are "soft" triggers: Before the undocumented can register as provisional immigrants, the Secretary of Homeland Security must submit a plan for border security and further expansion of the fence. In order for the registered provisional immigrants to adjust their legal status to permanent resident, after ten years both these plans must be "substantially deployed and substantially operational." In addition, employers will be required to use the E-Verify system to check immigration status for prospective employees and establish an electronic entry-exit system at U.S. ports of entry. This gives the secretary significant latitude in certifying that these benchmarks have been met. While many may see further investment in border security as unnecessary, there is little chance the bill would get past Republicans without it.

Immigrant-rights groups, business, and labor leaders are optimistic that a comprehensive immigration bill will get passed in some form. Not only is there significantly more momentum as compared with the 2007 effort; the traditional fault line between labor and business has been smoothed over in the form of gradual increases to the guest-worker program. The Gang of Eight has made a concerted effort to work with the various constituencies with a stake in the bill, which over the next month will be subject to intense negotiations as is weaves its way through the legislative process.

"Everybody gets something or gets enough that will keep them talking," says MPI's Papademetriou. "Now the games really begin and we'll see where various interests—some mainstream, some fringe—stand and see how powerful they are."

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