Immigration Laws: January, 2004 - Number #01

President Bush on January 7, 2004 unveiled a program that would permit the six to eight million unauthorized foreigners in the US with jobs to become temporary legal residents. As guest workers, they would be free to travel in and out of the US, get social security numbers and driver's licenses, and could apply for immigrant visas.

The Fair and Secure Immigration Reform (FSIR) program aims to fulfill Bush's goal of "matching willing foreign workers with willing US employers when no American can be found to fill those jobs." However, for unauthorized migrants already working illegally in the United States, the no-American-worker requirement would be considered fulfilled. A US official gave this example: some one is working illegally at Holiday Inn, which acknowledges [most likely in a letter or affidavit to DHS] that "she's been working here as of such-and-such date. [After registration] that person is now legal, let's say, for the three years of this program" if the unauthorized worker took the employer's letter to DHS, paid a registration fee, and then received a three-year renewable visa.

There is no clear path from this work visa to immigrant status: administration officials emphasized that "there is no linkage between participation in this program and a green card...one must go home upon conclusion of the program" and then apply for an immigrant visa, perhaps with the support of the US employer. The number of green cards or immigrant visas available for US employers who cannot find US workers, currently 140,000 for workers and their families, would increase by some undetermined number, but there could still be long waits for employers seeking immigrant visas for needed foreign workers. For example, if five million unauthorized workers sought an additional 100,000 employment-based immigrant visas a year, it would take 50 years to convert all of them to immigrants.

The Bush plan also includes a new guest worker program for "the jobs being generated in America's growing economy [that] American citizens are not filling." The plan would allow US employers to advertise jobs on a new internet labor exchange, and if no US worker accepted, the employer could go abroad and get guest workers, who would receive three-year renewable visas like those issued to unauthorized workers in the US, but guest workers from outside the US would not have to pay the registration fee of $1,000 to $2,000 charged to unauthorized workers in the US.

Registered temporary workers would have a new incentive to return to their country of origin, according to the administration, since they would earn retirement credits in their home country's pension system for their contributions to US Social Security. [The US sends Social Security checks abroad, but some countries reduce home-country benefits because of the work abroad. However, since US Social Security benefits are much higher than most origin country benefits, it is not clear how much of a return incentive the promise of transferable retirement credits would be].

Most observers said that Bush is likely to win points with US Hispanics for what they called "a more humane, safe, orderly and legal immigration policy." Mexican President Vicente Fox said Bush's plan represented "a clear recognition of the value of these Mexicans who are working there in the United States." Most US employers welcomed the Bush plan for potentially offering an easier way to obtain guest workers, while unions were wary, emphasizing that Bush did not propose wage floors or government-supervised recruitment of US workers, making it easy for US employers to recruit "cheap labor" abroad.

Critics seized on the fact that an immigrant visa may not become available before the temporary status runs out, saying that Bush's proposal "is more likely to ensure their departure [unauthorized workers who register] than ensure their permanent residency." Critics emphasized that there are long waits before immigration visas become available for unskilled workers sponsored by US employers, and that without a 245(i) program, which allows foreigners in the US when their greencards become available to pay a fee and adjust status in the US, some of the workers returning to their countries of origin to get an immigrant visa may be barred from legal re-entry for 10 years because they were in the US illegally.

Department of Homeland Security Secretary Tom Ridge set the stage for the administration proposal by calling for some kind of legalization program, saying "as a country, we have to come to grips with the presence of eight to 12 million illegals. I think there's a growing consensus that, sooner rather than later, we need to deal with the reality that these men, women and families are here, many contributing -- most contributing -- to their community, paying taxes, paying into Social Security. We have to legalize their status."

Democratic Presidential candidate Howard Dean favors earned legalization for undocumented workers who have committed no crimes, and Rep. Richard A. Gephardt (D-Mo.) introduced the Earned Legalization and Family Reunification Act in 2002, which would legalize foreigners who had been physically present in the United States for at least five years and who had worked for at least two years of that time.

Congress did not take final action on the three major pending immigration bills, but there is speculation that AgJOBS, DREAM and CLEAR may be enacted in 2004 because of the new impetus given by Bush's speech. In an effort to head off the approval of a new guest worker program, Rep. Thomas Tancredo, (R-CO) introduced a bill that would require the Department of Homeland Security to certify that illegal migration is "under control" before any unauthorized foreigners in the US receive work visas. Tancredo, who heads the 70-member Congressional Immigration Reform Caucus, complains that the Bush proposal would reward foreigners who broke the law to enter the US.

The Bush proposal is not a full amnesty, which is as an "act of clemency by an authority by which pardon is granted to a group of individuals. Clemency is an act of "mercy, compassion or forgiveness," while a pardon is a "release from the legal penalties of an offense."

AgJOBS. The Agricultural Job Opportunity, Benefits, and Security Act of 2003 would trade "employer-friendly" changes in the H-2A program for an "earned legalization" path to immigrant status for unauthorized farm workers. Unauthorized foreigners who did at least 100 days of farm work (an hour or more constitutes a day) in a 12 consecutive-month period between March 1, 2002 and August 31, 2003 could receive a six-year Temporary Resident Status (TRS) that permits work in the US and travel in and out of the US.

TRS farm workers could earn a permanent immigration status by doing at least 360 days of farm work in the next six years, including at least 240 work days during the first three years following adjustment, and at least 75 work days during each of three 12-month periods in the six years following adjustment. Spouses and minor children of TRS workers would not be deportable (but would not be allowed to work) and could receive permanent immigrant status when the farm worker qualified for an immigrant visa.

The proposed legislation puts no cap on the number of TRS foreigners. Some reports suggested 500,000 unauthorized farm workers might qualify while others estimated 800,000, including 25 percent in livestock, which was excluded from the SAW legalization program of 1987-88.

Many newspaper editorials concluded that AgJOBS was the best way to deal with unauthorized Mexican workers because, they said, AgJOBS was a "bottom-up" proposal that reflected agreement between employer and worker interests. For example, the Salinas Californian newspaper said that AgJOBS "is a big step forward for farm workers, growers and U.S. immigration reform," (September 25, 2003) while the Dallas Morning News editorialized that AgJOBS "may just be a model for other industries that are willing to pound out compromises of their own." (October 12, 2003) The Washington Post reported that "the food industry, in practice, would not function without them [illegal aliens]." (November 10, 2003)

There are two other guest worker bills pending in Congress, associated with Senators John McCain (R-AZ) and John Cornyn (R-TX). The McCain bill would create a three-year H-4B work visa available to unauthorized foreigners in the US before August 1, 2003 who pay a $1,500 fee or have the fee deducted from wages. H-4B visa holders would have to return to their countries of origin and apply for H-4A visas if they wanted to become US immigrants. (www.numbersusa.com/interests/amnesties108.html)

The path to US immigrant and citizenship status would begin with US employers, who request foreign workers after posting job offers for at least 14 days in a new "electronic registry" maintained by DOL, and paying $500 for each H-4A worker requested ($1,000 if they have more than 500 employees). US employers requesting H-4A workers must pledge to pay prevailing wages and promise not to displace US workers 90 days before and after hiring H-4A workers. H-4A foreign workers could work in the United States for three years, and could have their visas renewed once. After at least three years in H-4A status, foreigners can apply for immigrant visas on their own or through an employer sponsor.

The Cornyn bill would allow unauthorized foreigners in the US to receive W-visas that permit them to remain in the US for nine or 12 months. W-visa workers in the US up to 270 days a year could return to seasonal US jobs indefinitely, while year-round workers in the US could have their one-year work permits renewed three times, up to a total of 36 months. W-visa holders could bring their families to the US if their earnings are at least 125 percent of the federal poverty line.

In order to hire W-visa workers, US employers would have to file labor attestations with DOL promising to pay at least the minimum wage, advertise the job for at least 14 days, and hire qualified US workers who apply. W-worker Social Security and Medicare taxes are to be deposited in a special account, and refunded to W-workers when they return to their countries of origin. After three years of US work with a W-visa and return to the country of origin, the foreigner may apply for US immigrant status, with priority for immigrant visas based on whether a US employer acts as a sponsor, whether the foreigner received promotions or wage raises while employed with a W-visa in the US, and the W-visa holder's record of paying taxes and knowing English.

DREAM. The Development, Relief, and Education for Alien Minors (DREAM) Act, which was approved by the Senate Judiciary Committee on a 16-3 vote in October 2003, would allow unauthorized foreigners in the US for at least five years who graduate from US high schools to receive a six-year conditional status that could be converted to an immigrant status if the foreigner completed military service or at least two years of college. In addition, DREAM would repeal a law requiring public colleges and universities to charge unauthorized migrants higher out-of-state tuition. Some 50,000 to 60,000 unauthorized foreigners graduate from US high schools each year.

CLEAR. The Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act pending in Congress would encourage state and city police agencies to enforce immigration laws through a system of financial incentives, including the power to seize the property of unauthorized foreigners. Rep. Charlie Norwood (R-GA) said: "An immigration system that can't account for 400,000 illegal aliens awaiting deportation, puts 80,000 criminal aliens back out on our streets and tries to carry out its job with just 2,000 employees to enforce the law is reflective of a system that is badly broken and desperately needs help."

Attorney General John Ashcroft declared in 2002 that state and local police had the authority to arrest criminal or civil immigration violators, provided they were wanted suspects whose names had been entered into the National Crime Information Center database. The CLEAR Act would facilitate such state and local police enforcement by making many immigration violations criminal offenses. Critics oppose making violations of immigration laws criminal offenses.

Elisabeth Bumiller, "Border Politics as Bush Woos 2 Key Groups With Proposal," New York Times, January 8, 2004. Elisabeth Bumiller, "Bush Would Give Illegal Workers Broad New Rights," New York Times, January 7, 2004.