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.



The author is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His 1981 case with Ronald W. Freeman, Chavan v. Drysdale, 513 F.Supp.990 (NDNY 1981), encouraged the INS to change its 3 year maximum stay period for L-1 specialized knowledge personnel, and his 1992 correspondence with John Cummings, then Acting Assistant Commissioner for Refugees, Asylum and Parole, on the fate of asylees’ children who age out (69 Interpreter Releases, July 13, 1992), has been widely cited by others in the field. Readers may visit Mr. Lee’s website at www.alanleelaw.com.

This article © 2003 Alan Lee, Esq.

158 Federal Register, March 19, 1987, at p. 8743 (8CFR § 103.7)

159 This common scenario would allow collection from the 2 parents & 2 older children of $1500 each, not to mention the application fee & employer’s fees when the H-4B changes to H-4A & perhaps a further fee if the alien ports his/her work to another employer.

160 The New York Times, “Leap in Deficit Instead of Fall is Seen for US,” August 27, 2003.

161 The New York Times, “Budget Office Forecasts Record Deficit in ’04 and Sketches a Pessimistic Future,” 1/27/04.

162 The difference between the INS’ estimate of 3.9 million applicants in Feb. 1987, as opposed to its 2.7 million actual applicants 4 years later is astounding (see fn.11) & most likely attributable to the need to prove long residence to qualify.

163 Supra, footnotes 95 & 96.

164 The estimate of $650 per person is a low-end figure & presupposes that most sponsoring companies will have 500 or less employees & only be liable for the $500 fee.

165 The Department of Commerce, Justice, State, the Judiciary and Related Agencies Appropriations Act, 1995, (Public Law 103-317), 8/26/94 added section 245(i) to the Immigration and Nationality Act, effective 10/1/94.  Section 245(i) of the Act lifts certain restrictions on eligibility for adjustment of status and allows an otherwise eligible applicant to adjust status under section 245 of the Act without regard to manner of entry into the United States and without regard to most immigration status violations.  Under its last amendment by the Legal Immigration Family Equity Act (LIFE) Amendments of 2000, most aliens who filed labor certification or petition based cases by 4/30/01 & were physically present on 12/21/00 were benefited. 

166 The fee amount was set at $1000 under section 376(a) of the IIRIRA of 1996, Public Law 104-208, effective 12/29/96.

167 Tucson Citizen, “Worker Visas Proposal by AZ Lawmakers,” 7/26/03.

168 Id.

169 AILA Washington Update, “Kolbe-Flake Bill Would Create New Nonimmigrant Worker Categories,” Vol 7, No. 10, 8/11/03.

170 Supra, fn. 148.

171 Supra, fn. 99.

172 Supra, fn. 86, at Sections 3 & 4.

173 The legislation assigns the family members of H-4Bs who have changed to H-4A that same designation (H-4A) in reuniting with their principals (Section 3), and allows H-4As to adjust without numerical limitations (Section 3), but couches the permanent adjustment eligibility section of H-4As to refer only to the principal alien workers (Section 3), thus creating the ambiguity.

174 For February 2004, F-2A immigrant visa availability is current for applicants with priority dates before March 1, 1999. Visa Bulletin, Volume VIII, No. 66, February 2004.

175 The F-2A category is allotted 77% of the overall second preference category of 114,200 plus the number (if any) by which the world wide family preference level exceeds 226,000 and any unused first preference numbers.  The other 23% is assigned to the F-2B category for unmarried sons and daughters (21 years of age or older) of permanent residents.  Visa Bulletin, Volume VIII, No. 66, February 2004

176 If 2 million dependent family members (a conservative estimate) apply under the present quota system, and if the F-2A quota is approximately 100,000 per year, the applicant with the latest priority date would obtain his/her permanent residence more than 25 years later given the existing backlog of five years and assuming normal visa number progression.  (Visa availability current under the F-2A category for those filing petitions before March 1, 1999, as per Visa Bulletin VIII, No. 66, February 2004).

177 Gallup Poll, 1/14/04; ABC News Poll, 1/7 – 1/11/04; Pew Research Center for the People & the Press, 11/03; The Search 2000 North Carolina Poll, 11/10 – 11/13/03.

178 Tucson Citizen, “Immigrants Boost, Don’t Drain the U.S. Economy,” 6/13/02; New York Times, “Imagining Life Without Illegal Immigrants,” 1/11/04.

179 New York Times, “Imagining Life Without Illegal Immigrants,” 1/11/04.  See also BCIS legal immigration figures for 2001-2002 showing California leading all other states by wide margins as the settlement choice of new immigrants. FY 2001 figures showed California with 282,957 and New York a distant second at 114,116 (ILW.com at  http://www.ilw.com/lawyers/immigdaily/doj_news/2002,0904-2001stats.shtm) and FY 2002 California with 291,216 and New York second again with 114,827 (Posted on AILA InfoNet at Doc. No. 03071441 (July 14, 2003)). While the legal immigration figures cannot confirm California’s leadership in attracting undocumented aliens, it should be noted that Mexicans were also the most populous group, with 206,426 and 219,380 immigrating legally in FY 2001 and 2002 respectively.

180 Supra, fn. 174.

181 Tucson Citizen, “Immigrants Boost, Don’t Drain the U.S. Economy,” 6/13/02.

182 Supra, fn. 175.

 

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.