Immigration Reform: U.S. Senate Focuses On Specific Amendments

By Attorneys Robert L. Reeves and Jeremiah Johnson

Sometimes it’s hard to see the forest through all the trees. As a result of the sheer size and reach of the Senate’s proposal to provide comprehensive immigration reform, you may find it hard to see the individual trees through the forest. Over the past couple of months, we have been looking at immigration reform’s big picture. However, the Senate is now debating key provisions, and offering specific amendments that have a real effect on real people and their families. Below are actual amendments before the Senate with a closer look at two of the more contested amendments. Senate amendments that have already passed include:

SA 3999 (Senator Kerry) provides for border security vehicles and equipment.
SA 3979 (Senators Sessions and Santorum) authorizes the construction of a 370-mile fence along the U.S. and Mexico border.
SA 3971 (Senator Obama) establishes criteria to determine prevailing wage. Prevailing wage would first be established by the existing collective bargaining agreement, or the appropriate statutory wage. If either method were unavailable, the prevailing wage would be based on figures from the Bureau of Labor Statistics or Department of Labor.
SA 4029 (Senator Akaka) would extend the special immigrant status to children of Filipino World War II veterans.
SA 4064 (Senators Inhofe and Sessions) mandates English as the “national language; SA 4073 (Senator Salazar) offers an alternative, recognizing English as the “common and unifying language” of the United States.
SA 4038 (Senator Cornyn) imposes additional fees on guest worker applicants to cover State and local government immigration related expenses.
SA 3998 (Senator Nelson) provides for more detention space for immigrants.
SA 4076 (Senator Esign) provides funds for the National Guard along the border.

Senate amendments 3965 (Senators Kyl and Cornyn) and 4066 (Senators Kennedy and McCain) offer competing approached to the guest worker program. The Senate’s original proposal calls for the creation of a new temporary worker program, known as an H-2C visa that would be valid for three years and could be renewed only one time for a total of six years. After that, the temporary guest worker would be required to return to their home country for at least one year before returning on another H2-C visa. On May 17, 2006, Senator Kyl and Senator Cornyn offered, with the Senate’s approval, an amendment effectively closing a path to citizenship by striking the provision in the proposal allowing the new H-2C visa holder to self-petition for their green card. The Kyl/Cornyn amendment is numbered SA 3965. In response, Senator Kennedy offered a competing amendment, which also gained the Senate’s approval (numbered SA 4066.) Senator Kennedy’s amendment would permit the H2-C visa holder to self-petition for permanent residence if the worker files their own meritorious labor cert application after four years with the Department of Labor. Exactly which version passes in the Senate and will have to eventually make it out of the House/Senate Conference may depend largely on Congress’ notions of common sense and fairness.

Senate Amendment 4027 (Senators Kyl and Cornyn) limits the earned adjustment, or legalization program. The earned adjustment program is perhaps one of the most contentious provisions, and at the same time a provision that offers real hope for millions of undocumented aliens and their families. Called everything from “Gold Cards” to “Amnesty,” the program, as modified by the Senate compromise in April, would divide the current undocumented population into three categories. First, undocumented aliens who have been in the United States for more than five years would be eligible to gain lawful status without returning to their home country. To do so, applicants would need to meet certain requirements including a prospective six to eight year work requirement, passing background checks, learning English and paying back taxes and additional penalties. The Second group comprises of undocumented individuals who have arrived in the United States less than five years, but before January 7, 2004. These aliens would be required to leave the United States within three years, but could return in a temporary status and apply to adjust their status after the first category completes their processing. The third category, those who arrived after January 7, 2004, would have to leave the United States, but could apply for the new temporary worker program discussed above.

Unfortunately, Senators Kyl and Senator Cornyn have attempted to limit the relief available through SA 4027. According to the amendment, aliens who have a final order of removal against them; who have overstayed a grant of voluntary departure; and who are subject to reinstatement of removal are ineligible to participate in the earned adjustment program. Other ineligible aliens include those convicted of a serious crime, felony, or three misdemeanors or believed to be a danger to the security of the United States. Although the amendment would preclude many persons from earning their adjustment of status through this program, SA 4027 does provide a waiver for certain persons. The Immigration Service could, in its sole discretion, waive the disqualifying criteria for non-criminals who can demonstrate that they either 1) failed to receive notice of their immigration hearing; or 2) that their failure to appear was due to exceptional circumstances; or 3) their United States citizen or permanent resident spouse, parent, or child would suffer extreme hardship if they were not permitted to remain in the United States.

These are amendments that have already passed the Senate. The Senate is also considering current amendments that would require all undocumented persons to pay all back taxes before legalization (SA 3991); and an amendment that would remove the injunctive stripping provision for aliens when the Immigration Service misinterprets the law (SA 3972). Also, Senators Brownback and Lieberman introduced an amendment (SA 4020) that would strengthen the rights of asylum seekers and detained immigrants and require non criminal detainees be separated from inmates with criminal convictions.

If the Senate can get through this amendment process with a comprehensive immigration reform bill (probably by May 25, 2006), Congress will then need to convene a conference committee to reconcile differences with the House enforcement only version. If the Senate fails to deliver, or if the conference committee cannot reconcile the differences, the proposed immigration reform laws will have to await until February 2007 when the newly elected senators and representatives take their seats in Congress. We believe the newly elected congress will be more reasonable.