The Bush Proposal on Undocumented Workers
& Comparative Pending Legislation: An Analysis - Part IV
By Alan Lee, Esq.†‡
This is a continuation of an article by Alan
Lee, Esq, which appeared in an edited version in Interpreter Releases
on April 12, 2004. Interpreter Releases is widely recognized as
the top journal in immigration law. Parts 1-3 focused on the background
of the illegal immigration numbers, the Bush proposal, alternative
legislative proposals, and began a comparison off their relative
merits in light of five factors that the author deemed important
in determining the effectiveness of each approach. Part 4 will continue
the comparison and analysis of pending legislation, discuss anti-immigrant
sources of anger in this country, why it is wrongly directed and
what can be done, and conclude with a short summary of the article
and its goals. This article is being run simultaneously in the Chinese
language newspaper, The World Journal. It is also scheduled to be
the Interpreter Releases publication displayed at the annual national
conference of the American Immigration Lawyers Association in Philadelphia
in June 2004.
Another reason for thinking optimistically
about the legislation is the revenue side. Passage of the legislation
could conceivably bring $10 billion plus in new-found revenues
to the U.S. government. As opposed to IRCA, which imposed application
fees of $185 on adults and $50 for children under the age of 18
and capped total family charges at $420 only to cover expenses
of processing,158 McCain/Kolbe envisions the program as a moneymaker
with the government not only charging application fees to recover
costs of processing, but also fines and surcharges to fund the
public fisc.An eligible family of five with two parents, and children
aged 19, 17, and 15 in addition to paying an application fee to
cover processing expenses would pay penalty fees to the government
of $6,000 to change status to H-4B.159
Only the child under the age of 17 would be exempt from the penalty.
This revenue could prove important in helping to fund the government,
which through the Bush tax breaks will have rising deficits throughout
the decade according to projections of the Congressional Budget
Office. That office, in contrast to the White House Office of
Management and Budget's projection of a deficit peaking at $475
billion this year and then falling to just $62 billion in 2008,160 now projects a deficit
of $477 billion this year with a possible cumulative total of
$1.9 trillion over the next decade.161 HR 2899 unlike the
IRCA does not require applicants to prove illegal residence stretching
back five years, an important factor in holding down the number
of applications in 1987.162Therefore
a large number of the estimated 8-14 million illegals may be eligible
to apply. A listing of the charges shows the financial possibilities
of the program. Besides being charged application fees in an
amount deemed necessary to cover processing of applications, most
individuals are required to pay a $1,500 fine and an employer
must later pay another $1,000 or $500 (depending on size) for
principal aliens to change status to H-4A or to transfer to their
workplace.163
In addition, aliens outside the United States who can qualify
for H-4A status would contribute heavily as employers would pay
either $1,000 or $500 plus an application fee to have them enter
the U.S., and the same fees would be charged to employers wishing
to sponsor changes of employment for the same aliens. With the
illegal side of this legislation alone, if only 5 million applied
for this program with 80% having to pay $1500, free and clear
revenues to the government would be $6 billion. If 2.5 million
principal alien workers applied for the next step to change status
to H-4A (a realistic figure as many illegals are unmarried or
are here without their families), and if employers who must pay
for their services ($1,000 for employers with over 500 employees
and $500 for employers with less) average a payout to the government
of $650 per head,164 this would bring in an additional
$1.625 billion to government coffers. As the H-4A class for individuals
residing outside the United States is unlimited in numbers under
the bill, the government can expect a steady stream of revenue
from employers wishing to bring in such employees or to offer
new employment to H-4A aliens. Finally the legislation does not
mention fees to be paid upon adjustment of status to permanent
residence for former H-4B aliens. Will the bill be later clarified
so that former illegals are allowed to adjust status like other
applicants without regard to past illegality, or will there be
another passage of section 245(i) explicitly allowing for, among
others, adjustment of status for former H-4B aliens upon payment
of the fine amount under section 245(i)?165
The current amount of fine for eligible participants is $1,000.166The long-term effects of legalizing
so many in the underground economy will be an added tax base of
millions of people who never previously filed taxes.
Finally, the bill has enough in it to offend
many on the left and right, a good sign for a controversial bill
which would otherwise be politically dead if it favored only one
side. Conservatives are already up in arms against it,167 pro-immigration
advocacy groups have expressed opposition to the bill's long wait
for green cards,168 and the American Immigration Lawyers
Association characterized it as flawed legislation.169
The Hagel/Daschle bill is more comprehensive
than any of the others, and that is its strength as well as its
weakness. It would solve the long standing problem of reunification
for families of permanent residents not entitled to derivative
status by giving them the coveted status of "immediate relatives"
and would offer a quicker path to permanent residence than AgJobs
or McCain/Kolbe - features most attractive to more liberal members
of Congress. Most of the Hispanic community would support the
legislation as its permanent residence component would not be
mainly based on an employer petitioning process. In the same vein
of McCain/Kolbe, Hagel/Daschle would help to solve the future
economic problems of the country by giving more incentive for
individuals to apply under its program. It would, however, still
leave a sizable number of undocumented workers behind as it would
require a longer period of prior residence in the U.S. before
enactment than either AgJobs or McCain/Kolbe. The amounts of money
to be collected under the program hold out the assurance that
it will not be a burden to taxpayers. The question to be answered
is how passable the legislation will be as it looks like an amnesty,
which would be offensive to many members of Congress, and that
it is being perceived in some circles as a Democratic rival to
the Bush proposal, although it is a bipartisan bill. 170
The view from here after analyzing the proposal
and pending bills is that the McCain/Kolbe model should be the
vehicle for immigration reform in this election year. It responds
well to the five criteria laid out for an effective bill that
helps the country. Its best points are that the number of individuals
possibly benefited is large; it will appeal to the vast majority
of undocumented workers because of its road to permanent residence;
taxpayers will not be burdened; and its possibilities of passage
appear to be more reasonable than the president's proposal or
other pieces of comprehensive legislation. In addition, the Bush
administration could easily throw its support behind it and declare
political victory as it is a Republican sponsored bill. The chief
concern (which can hopefully be clarified in the legislative process)
is its treatment of workers' families for permanent residence.
While providing H-4A and H-4B family members with the right to
visit,171 and dependent status for H-4B families
(who are illegal in the US since before 8/1/03 until date of application
under the Act) up through their conversion to H-4A status,172 the legislation's present less than clear stance on
follow-to-join privileges when the principal workers adjust to
permanent residence should be addressed as it is inconceivable
that family members who have been accorded dependent non-immigrant
status would not also be accorded follow-to-join permanent status.173The ramifications for such a dichotomy in treatment
would be the driving out of dependents when principal workers
apply for permanent residence and exacerbating the illegal immigration
problem by leaving nuclear family members on the outside who would
have strong desires to reunite with their working principals.
Currently the second preference family category for spouses and
minor children of permanent residents is backlogged five years,174
and with an annual limit of approximately 88,000,175
it is clear that subjecting these family members to quota limitations
would stretch the backlog at least 20+ more years.176A further imperfection,
the lack of a clear procedure for permanent residence, should
also be addressed in the drafting process. Presently no procedure
can be perceived in McCain/Kolbe as to how employers would sponsor
individuals for permanent residence, and there is the fear that
lacking such, the DHS and DOL will ultimately demand that employers
and aliens go through a standard labor certification process which
would be risky, time-consuming, complex, and costly.To gain further
support from congressional members wanting more in the way of
a clearer path to permanent residence status on behalf of the
workers, a point system or labor attestation/14 day job registry
process (with the same recruitment standard used in H-4A worker
cases in McCain/Kolbe) could be written into the law for that
purpose.
5. Addendum
There appears to be a deep wellspring of
public opinion opposing increased levels of immigration, mainly
based upon worries over the U.S. economy.177While this cannot be ignored, neither can the handwriting
on the wall of the future crisis facing the nation. If steps are
not taken now, the country's leaders will be too late when the
disastrous results of unpreparedness become clear. The U.S. would
then be akin to a company attempting to build new factories to
ramp up production when worldwide demand accelerates and other
more prepared companies have already begun to meet the demand.
There is also a common perception among Americans that immigrants
are great burdens to school districts, welfare and health care
systems.178Most complaints,
however, appear to come from California because of its popularity
to new immigrants.179The
bulk of evidence indicates, however, that immigrants contribute
far more to the U.S. economy than they take.180Alan
Greenspan informed Congress that immigrants, including undocumented
workers, in essence donate $27 billion to state and local economies
- that they pay $70 billion in taxes while only using $43 billion
in services; and that in Illinois alone, illegal workers pay $547
million annually compared to using $238 million in services.181It
is important to defuse this misperception through the use of the
official statistics, but a better solution to stopping local complaints
would be drafting of legislation returning the differences in
taxes paid and services used to the states and cities themselves
instead of merely declaring the difference a bonanza for the federal
government.182A
secondary but longer term answer might be encouraging undocumented
workers and their families to move to less populous parts of the
country for a number of years in exchange for a quicker, less
expensive or surer path to permanent immigration.
6. Conclusion
The country must take radical if unpopular
steps now and in the near future to combat the upcoming manpower
crisis, and our leaders must be willing to not only pitch proposals,
but to step up to the plate and spend political credit to do the
job. No one debates that our present immigration system is broken
and needs fixing. However, the final legislation that emerges
should not be dictated by short-term political gain, but by the
guiding principle that the good of the nation should be served.
To assist in giving direction to effective legislation, this article
has identified five criteria through which each approach can be
viewed.There may certainly be other relevant criteria not covered
in this article which weigh in favor of the presidential proposal
or legislation other than the McCain/Kolbe bill, but this article
will have served its purpose if it focuses attention on the most
important factors for the long-term health of the U.S. and the
immigration system rather than just on a political solution.
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