As President Obama nears the end of his fifth year in office, his administration is poised to set an unenviable record. By 2014, the Obama administration will have deported over two million people – more than the total number of people deported from this country between 1892 and 1997.
Recognizing the urgent need for immigration reform, more than 50,000 people in 40 states held rallies on October 5 calling for Congress to take action to grant citizenship to the estimated 11 million undocumented immigrants currently living in the United States. However, in spite of a big push to pass a comprehensive immigration reform (CIR) bill last summer, Congress has been unable to overcome the deep partisan rifts that divide the House and Senate.
But, the fight is far from over. Just last week, House Democrats introduced a new CIR bill they believe can gain bipartisan support.
This explainer describes the provisions of the Senate bill on which the new House bill is based, with particular emphasis on provisions affecting workers. It then goes on to explain how the new House bill differs from the Senate bill, and offers a few thoughts about the viability of the bills given the current political climate.
The Senate Bill (S. 744)
S. 744 passed in the Senate in June but never made it to the House. The major provisions of the Senate bill are summarized below:
1. Provisions Directly Affecting Workers
Many of the provisions of the Senate bill are aimed particularly at workers. These include:
a. Elimination of Country-Specific Caps on Employment-Based Immigrant Visas
The Senate bill eliminates country-specific caps on employment-based immigrant visas (which have led to huge backlogs for applicants from countries such as China and India).
b. Blue Card
Under S. 744, undocumented agricultural workers who meet certain requirements and pay a penalty are eligible for a blue card. Blue card holders can apply for lawful permanent resident (LPR) status after five years if they have continuously worked in agriculture, paid their taxes, and paid a fine. At that point, they may work in any occupation, and after five years, they are eligible for citizenship.
c. Agricultural W Visa Program
A new W visa would replace the current H-2A agricultural worker program. Unlike H-2A visa holders who are tied to a particular employer, W visa holders would be able to switch between employers if they find work with a designated agricultural employer within 60 days. This provision is designed to protect workers who, under the current system, are dependent on their employers for their status and are thus particularly vulnerable to workplace abuse and exploitation. In addition, W visa holders would be entitled to employer-provided housing, fair wages, and workers’ compensation.
d. Non-Agricultural W Visa Program
The bill also creates a non-immigrant non-agricultural W visa program for less-skilled, non-seasonal workers. Like agricultural W visa holders, non-agricultural W visa holders would be able to leave one registered employer for another. Employers of W visa holders would be required to pay the higher of the actual wage or the prevailing wage for the occupation.
e. U Visa Changes
Under current law, U visas are available for victims of certain serious crimes who assist law enforcement in prosecution of the crimes. S. 744 would add to the list of crimes: serious workplace abuse, slavery, or other serious violations of workers’ rights. In addition, the bill requires employers recruiting workers from abroad to register with the Secretary of Labor, post a bond, and notify prospective workers of the visa conditions and the terms of the employment contract. Employers are prohibited from charging workers recruitment fees.
f. H-1B Visa Changes
Under current law, “foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields” may apply for an H1-B visa. However, there is an annual cap on the number of H1-B visas that may be granted. S. 744 increases the annual cap from 65,000 to 115,000 (with more visas available under certain circumstances) but also increases the fees imposed on employers utilizing H1-B workers. In addition, for employers with 50 or more employees, the bill imposes caps on the percentage of the employer’s workforce that can be H1-B workers. Compliance requirements for H1-B-dependent employers (employers with a workforce comprising 15% or more H1-B holders) are also increased. Finally, the bill raises wages for H1-B employees by eliminating the lowest tier of the current four-tier wage level system.
E-Verify, currently optional, permits employers to verify the employment eligibility of their workers using an online system. Under the Senate bill, E-Verify would become mandatory for all employers within five years. The bill provides some due process for employees who believe they have been erroneously deemed unauthorized.
In addition, S. 744 imposes civil and criminal penalties on employers who knowingly hire, recruit, refer, or continue to employ unauthorized immigrants or who fail to comply with E-Verify requirements. Civil fines can be as high as $25,000 per violation for employers who have committed multiple violations. Criminal sanctions may include sentences of up to two years in prison and fines of up to $10,000 for employers who have repeatedly violated the law.
The bill also creates criminal penalties for employees who misuse a social security number or a passport. Violators may be subject to deportation.
h. Hoffman Plastic Fix
The Senate bill contains several provisions designed to override the Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB.
In Hoffman Plastic, the Court held that undocumented workers are not eligible for backpay or reinstatement for employer violations of their rights under the NLRA. The Court noted that undocumented workers are employees within the meaning of the NLRA and are therefore entitled to the NLRA’s protections. However, the Court concluded that because the NLRA conflicts with the Immigration Reform and Control Act (which makes it illegal for undocumented immigrants and US employers to enter into an employment relationship), the Board and courts may not award undocumented workers backpay or reinstatement.
Since Hoffman Plastic, lower courts have differed as to whether the ruling extends to the Title VII and FLSA contexts, but the majority of lower courts and the Ninth Circuit have sought to limit Hoffman Plastic‘s reach.
In language clearly aimed at undoing the Court’s decision in Hoffman Plastic, S. 744 guarantees undocumented workers equal treatment under the law and explicitly extends backpay and other employment remedies to undocumented workers. However, undocumented workers are not eligible for reinstatement unless they obtain legal status (perhaps via a U visa).
2. Effect on US Citizen Workers
Although the comprehensive immigration reform provisions outlined above would most obviously and most directly impact immigrant workers, they would also almost certainly affect U.S. citizen workers. This is so for at least two reasons.
First, as the Supreme Court itself noted in Sure-Tan, Inc. v. NLRB (a case that predates Hoffman Plastic), “[a]cceptance by [undocumented workers] of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.” If undocumented workers do not come forward when their rights are violated for fear of retaliation or because they are not eligible for meaningful remedies, all workers suffer.
Second, when undocumented workers can organize without fear of employer retaliation, the bargaining power of all workers is increased. To quote the Supreme Court’s Sure-Tan decision again, “If undocumented alien employees were excluded from participation in union activities and from protections against employer intimidation, there would be created a subclass of workers without a comparable stake in the collective goals of their legally resident co-workers, thereby eroding the unity of all the employees and impeding effective collective bargaining.”
The CIR provisions would probably not greatly affect U.S. citizens’ wages or ability to obtain employment. According to the Congressional Budget Office (CBO), S.744 would initially decrease average wages (of the entire workforce) by 0.1% but would increase average wages by 2025. Furthermore, the CBO predicts that while S. 744 would initially raise the unemployment rate by about 0.1%, by 2020, it would have no effect on the unemployment rate.
3. Other Important Provisions of the Senate Bill
Other provisions of the Senate bill affect workers less directly. These include:
a. Pathway to Citizenship
The bill creates a pathway to citizenship for many undocumented immigrants via a new Registered Provisional Immigrant (RPI) Program. Under the program, undocumented immigrants who have “been in the U.S. since December 31, 2011, have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes, pass background checks, and pay application fees and a $1,000 penalty . . . among other requirements” may register as RPIs. RPI status lasts for six years, at which time applicants must re-apply for another six-year period. In order to obtain this extension, with a few exceptions, RPIs must demonstrate that they have maintained regular employment (with gaps of no more than 60 days between jobs), have an average income or resources equal to at least 100% of the federal poverty level, or have enrolled in an educational program. Immigrants who have been convicted of participating in gang activity or specified other crimes are ineligible for RPI status.
To obtain a green card (ie to become a lawful permanent resident), RPIs must maintain RPI status for at least ten years and meet certain requirements similar to those outlined above for RPI status renewal. After at least three years as lawful permanent residents (LPRs), RPIs may apply for citizenship.
DREAMers (certain undocumented immigrants who entered the U.S. as children) would be eligible for an accelerated track to citizenship via the RPI program which would permit them to become LPRs after five years and to apply for citizenship immediately thereafter. To qualify as a DREAMer, an applicant must have entered the country before age 16, maintained RPI status for at least five years, graduated from high school or obtained a GED, completed at least two years of college or four years of military service, passed an English language test and background test, and met other requirements.
b. “Merit”-Based Visa System
S. 744 would replace the old family-based visa system with a two-track “merit” system. Track one would award visas on the basis of education, employment, occupation, civic participation, English language skills, family ties, age, and nationality. Track two would clear the existing visa backlog by granting visas to applicants who have currently pending visa applications.
c. Due Process
The bill gives particularly vulnerable populations of immigrants, such as unaccompanied minor children and mentally disabled immigrants, the right to appointed counsel in removal proceedings. It also limits the government’s ability to place detained immigrants in solitary confinement and requires consideration of more humane alternatives to detention.
The bill also creates a review system, enabling those denied RPI status to appeal the determination. Finally, the bill eliminates the requirement that asylum applicants apply for asylee status within one year of arriving in the U.S.
d. Corker-Hoeven Amendment (the “Border Surge” Amendment)
The Corker-Hoeven amendment calls for 20,000 new border agents (in addition to the 18,400 agents already stationed on the U.S.-Mexico border) at a cost of $30 billion, 700 miles of fencing along the southern border, and $4.5 billion for surveillance drones and other new technologies. These measures must be instituted before any RPIs can apply to become lawful permanent residents.
The House Bill (H.R. 15)
H.R. 15, introduced on October 2 by Minority Leader Nancy Pelosi, adopts most of S. 744, but eliminates the controversial Corker-Hoeven “border surge” amendment. In place of the Corker-Hoeven amendment, H.R. 15 incorporates the bipartisan McCaul-Thompson bill (which the House Homeland Security Committee passed in May).
The McCaul-Thompson bill requires the Department of Homeland Security (DHS) to create a plan to ensure the apprehension of 90% of undocumented border-crossers in high-traffic regions within a set time frame. DHS’s plan would then be assessed by the Government Accountability Office which would report to Congress.
Although H.R. 15 may be able to garner some Republican support, House Speaker John Boehner has indicated that he will not bring any immigration bill to the floor unless a majority of House Republicans support it (following the so-called “Hastert Rule”).
Is There Any Hope for Immigration Reform in the Current Congress?
Given Congress’s current intransigence over the federal government shutdown and the debt ceiling, there are many reasons to think the House’s CIR bill is dead on arrival. However, at least some commentators are hopeful that negotiations over the debt ceiling could lead the GOP to abandon the Hastert rule, and that would open to door to immigration reform.