The Bush Proposal on Undocumented Workers & Comparative Pending Legislation: An Analysis - Part IIIE.) Immigration Reform Act of 2004 The latest entry to the field of immigration reform, the Immigration Reform Act of 2004 (hereafter “Hagel/Daschle”)108, is a bold attempt to comprehensively reform the current immigration system including moving the immediate relatives of U.S. citizens out of the immigrant numbers count altogether, and turning the spouses and minor children of permanent residents (F-2A) into a new immediate relative category not subject to any numbers restrictions at all except the overall cap of 480,000 family based visas with a 226,000 preference category floor.109 Visa quota numbers for other family based categories would be increased by swallowing up the visa numbers currently assigned to the F-2A category.110 The legislation would reform the H-2B category for temporary non-agricultural workers and create a new H-2C category which would expire in five years.111 The reformed H-2B category would be for short-term service for labor for nine months in a one year period with the overall period of stay in the U.S. not exceeding 36 months in a four year period,112 and the H-2C category would contemplate work other than under H-1B, H 2A (Agricultural Workers) or H-2B.113 H-2C's would receive a two-year period of admission with possible extension of two more years.114 Sponsoring employers would have to send a copy of the job opportunity to the Department of Labor (Employment Services, hereafter "ES")at least 14 days before the job's beginning for H-2B's and at least 30 days for H-2C's.115 Employers would authorize ES to post the available position on America's Job Bank, local job banks and employment agencies and other recruitment sources; authorize ES to notify the Central Office of the State Federation of Labor in the state in which the job is located of the job opportunity; post the job opportunity in conspicuous locations at the place of employment; advertise the job for three consecutive days (H-2B) or 10 consecutive days (H-2C) in the highest circulation publication likely to be patronized by potential U.S. workers; and based on local job service recommendations, advertise in professional, trade, and ethnic publications likely to be patronized by potential workers.116 A U.S. worker is defined as a qualified and available U.S. citizen or national, permanent resident, or any other alien authorized to work in the job opportunity within the U.S., except aliens holding H-2B or H-2C status.117 Employers would have to attest to the DOL that the wages to be paid would be the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment.118 The application process would be an attestation to the DOL with a job offer, requirements, and evidence of recruitment.119 Following approval by the DOL, an application would be forwarded to the DHS.120 The quota limitation on H-2B's would be set at 100,000 annually for five years and then 66,000 per year thereafter while H-2C's would be limited to 250,000 annually for five years.121 Employers desiring to hire H-2B's would pay $125 if they had 25 or less workers, $250 if between 26-150 workers, $375 if between 151-500 workers; and $500 if exceeding 500 workers.122 For participation in the H-2C program, employers would have to pay twice the H-2B amount.123 Both categories would enjoy the right to travel,124 and participants could not be barred for having an immigrant intent.125 Family members would be allowed to join them under the follow to join category.126 Grounds of ineligibility for both programs would be violations of the terms and conditions of status, and entering the United States without inspection after enactment.127 On the permanent residence side, individuals would have to establish continuous physical residence for at least five years with any trips outside the United States being brief, casual and innocent before introduction of the law (January 21, 2004), and that they were illegal on that date.128 The bill is helpful in defining violation of status to mean “not legal,” cutting short future arguments that such illegality would have to have been known to the government, a bone of contention with the IRCA.129 The applicants would have to be admissible except for sections that can be waived;130 and they would have to be employed three of five years before introduction of the Act and one year after enactment.131 They would have to pay their tax liability by the date of adjustment of status, 132 and show basic citizenship skills or the taking of a class to improve their skills.133 Individuals not meeting the 5 year continuous physical residence, illegality or 3 year work requirement but physically present in the U.S. on the law’s introduction date would be eligible for a transitional worker status.134 They would become eligible for permanent residence adjustment upon a showing that they had applied for transitional work status, were lawfully employed in the aggregate for more than 2 but less than 3 of the 5 years immediately preceeding the law’s introduction date, and for at least 2 years following the law’s enactment. They also have to comply with the other requirements of eligibility, e.g. - payment of tax liability, exhibit basic citizenship skills, before being adjusted to permanent residence.135 In applying for permanent residence, applicants would not be restricted by quota limits.136 Individuals would apply through sending in an application plus fine (the fine amount commensurate with levels charged by the DHS for other adjustment of status cases) and a $1,000 additional amount to be collected from all applicants except those under the age of 18 before adjudication of the application.137 Most grounds of inadmissibility would be waived either directly or for humanitarian purposes, family unity, or the public interest except for health grounds, crimes, security, polygamy and child abduction.138 Persons with final orders to leave the country would be forgiven and there would be no need to file motions to reopen.139 Filing of an application would stay removal or detention except where removal or detention was based on criminal or national security grounds.140 Questions left unanswered by the legislation are the deadline dates to apply for the program, and how long individuals can be without jobs before being declared out of status. F.) Development, Relief and Education for Alien Minors Act of 2003 The Development, Relief and Education for Alien Minors Act of 2003 or DREAM Act141 would allow states to determine residence for in-state higher education tuition programs by amending the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and give conditional residence to children entering the United States before the age of 16 who have good moral character and have lived in the United States for five years and graduated from high school or obtained a general education development certificate in the U.S.142 The conditional residence period would be valid for 6 years, but could be terminated for lack of good moral character, crimes, security & immigration fraud grounds, dishonorable or other than honorable discharge from the Armed Forces, or becoming a public charge.143 The DREAM Act is only included here as there are reports that it could be folded into more comprehensive immigration legislation.144 Applicants could file to remove the conditional basis of their residence status during the period of time encompassing 180 days before to 2 years after the 6 years or any other expiration date of conditional resident status as extended by the DHS.145 To remove the conditional residence, applicants would file a petition containing information including a list of secondary educational institutions attended in the United States; that he/she had maintained good moral character during the period of conditional residence; that he/she continued to exhibit good moral character and non-removability under most exclusion grounds; that he/she had not abandoned residence in the U.S.; that he/she had either served in the armed forces of the U.S. for least two years and if discharged had received an honorable discharge, or had acquired a U.S. degree from an institute of higher education or had completed at least two years (in good standing) in a program for a bachelor's or higher degree in the United States.146 For individuals not completing the educational or military requirement, they would be allowed an exception if they could demonstrate that removal from the U.S. would result in exceptional and extremely unusual hardship to them or to their spouses, parents, or children who were citizens or permanent residents of the U.S.147 The bill would also allow children at least 12 years of age and enrolled full time in a primary or secondary school to receive a stay of removal and employment authorization if in the U.S. five years,148 and give permanent residence without the need for a conditional period to those who met all the above requirements before the law was enacted.149 4. A View Towards Future Immigration Reform Looking at the current proposal and pending bills, each should be filtered through the strainers of 1.) effectiveness in helping to solve America's future economic problems, 2.) effectiveness in solving the illegal immigration problem; 3.) appealability to the undocumented workers who would have to sign up to make the program a success, 4.) non-imposition of significant burden upon taxpayers, and 5.) passability in convincing the majority of congressional members to vote for the legislation. The Bush proposal is the most conservative, but opposed by members of his own party as well as the Democrats.150 Some conservative Republicans have already lambasted him for selling out while Democrats do not believe that the proposal goes far enough in offering relief.151 There are questions as to how hard he will actually push for the legislation; whether he just put out the proposal as a sop to Hispanics in this election year to garner votes (the measure was reportedly the brainchild of Karl Rove, Mr. Bush's chief political strategist)152 with no real intention of passing it this year; whether members of his own party would in the end vote for his proposal and whether members of the opposition party would cross over. There exists much doubt in the Hispanic community over the proposal, with many Hispanics raising fears that emerging from the shadows & applying for the program would ensure the undocumented a one way ticket back to their home country.153 Others fear that it is only a reprise of the bracero program which brought more than 3 million workers from Mexico between 1942 – 1964, featured a promise of wage deductions to be paid upon return to the home country which was never kept and was filled with abuses by the government and employers.154 Unless the vast majority of undocumented aliens applies for the program, the proposal would not help to solve the illegal immigration problem in the country. The anticipated shortfall of workers could arguably be met by a guest worker program filled by applicants from overseas, but human nature dictates that most employers would rather hire individuals that they know and trust rather than strangers from overseas that they may or may have not met prior to sponsoring. There would also be no enticement of a green card at the end for overseas workers to take extra measures to encourage U.S. employers to sponsor them. President Bush stated that there would be no fee for aliens applying from overseas, but did not say if any fee would be imposed upon employers. A hefty fee would further discourage employers from using the program. The amount of fee to be collected from undocumented workers and possibly employers and the number of participants in the program would determine whether the plan could pay for itself or become another burden upon taxpayers. The Cornyn bill, from which the Bush proposal took many parts, appears to be a more detailed & generous version of the Bush proposal, but suffers from the same infirmities as the Bush plan. It might appeal to more Hispanics with its promise of a special program for permanent residence based upon a point system, but even that might not be enough to attract the majority of illegals as they would have to return home to apply, and the bill’s tieing together of the number of green cards with economic conditions as determined by the Secretary of Labor might sound too arbitrary & susceptible to political gamesmanship to appeal to them. AgJobs narrowly focuses on the agricultural community, and by itself will not be able to solve the country's future economic problems. Its provisions to deal with undocumented agricultural workers are fair in allowing undocumented workers present and working in the country by August, 2003, to apply for TPR status and ultimately permanent residence. Most undocumented agricultural workers would probably be enticed to apply for the benefits of the program. Whether AgJobs would be burdensome upon taxpayers would depend upon the fee to be set by DHS. AgJobs' passability quotient is high, as it is a bipartisan effort by not only Senators Craig and Kennedy, but an additional 48 co-sponsors, including 25 Democrats and 23 Republicans.155 On the House side, 40 Democrats and 39 Republicans have joined Representatives Chris Cannon and Howard Berman. 156 McCain/Kolbe will ultimately be an attractive bill for Hispanics, if given the choice between that and the Bush proposal because it contains two key features that the president's plan is lacking - undocumented workers can apply for temporary status in the country without having to go through a recruitment process by employers, and it offers a realistic albeit slow path to permanent residence. Upon its unveiling in July 2003, the Hispanic press was largely negative,157 but that would probably now change given the political reality of the Bush proposal. The legislation would go a long ways towards helping the future economic health of the nation as it would most likely attract a large number of undocumented workers and provide for the entry of other needed workers from overseas through the H-4A visa, which under the bill would be open-ended. H-4A's would have the added incentive of being able to obtain permanent residence without quota restrictions. This would conceivably make overseas workers and their friends and relatives in the States more enthusiastic about approaching employers and asking for employment sponsorship. The eligibility date for undocumented workers, August 2003, is sufficiently up to date to allow most individuals to apply and not leave millions behind as did the IRCA of 1986.
† 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. 108 S. 2010 introduced by Senators Chuck Hagel (R-NE) & Tom Daschle (D-SD) on 1/21/04 is bipartisan legislation referred to the Committee on the Judiciary on that date. 109 Id at Section 101. 110 Id at Section 102. 111 Id at Section 217. 112 Id at Section 210. 113 Id at Section 201. 114 Id at Section 210. 115 Id at Section 202. 116 Id. 117 Id at Sections 202 & 218. 118 Id at Section 203. 119 Id. 120 Id. 121 Id at Section 211. 122 Id at Section 216. 123 Id. 124 Id at Section 210 & 214. 125 Id at Section 214. 126 Id at Section 207. 127 Id at Section 221. 128 Id at Section 301. 129 Id. Aliens in the IRCA unsuccessfully argued in Ayuda, Inc. v. Meese, 687 F.Supp.650 (D.D.C. 1988); rev’d. Ayuda, Inc. v. Thornburgh, 880 F.2d 1325 (D.C.Cir.1989), 948 F.2d 742 (D.C.Cir.1991) that they were eligible as they had not informed the government of address changes as required by law and that the government thus knew of their illegality. 130 Id. 131 Id. 132 Id. 133 Id. 134 Id. 135 Id. 136 Id. 137 Id. 138 Id. 139 Id. 140 Id. 141 S. 1545, a bill for the relief of minors, was introduced on 7/31/03 & is presently awaiting floor action after being marked up & passed out of the Senate Judiciary Committee on October 23, 2003. 142 Id at Sections 3 & 4. 143 Id at Sections 4 & 5 144 AILA Washington Update, “Dream Act Moving Forward,” Vol. 8, No.1, January 23, 2004. 145 Supra, fn. 141 at Section 5. 146 Id. 147 Id. 148 Id at Section 7. 149 Id at Section 6. 150 The Wall Street Journal article “Bush Set to Ease Immigration,” 1/7/04, states that many conservatives adamantly oppose liberalizing immigration policy & quotes Rep. Tom Tancredo’s (R-CO) vow “to fight [the proposal] as hard as I can.” The Wall Street Journal article “America as a Beacon…,” 1/12/04, quotes Democratic presidential hopeful Howard Dean: “The President’s proposal will help big corporations.” 151 Washington Post, “Hill Cool to Bush Immigration Plan,” 1/11/04. 152 Washington Post, “Immigration Reform on Bush Agenda,” 12/24/03 – “The White House plan is being developed by Bush’s Senior Advisor, Karl Rove, in consultation with the domestic policy staff.” 153 Supra, fn. 7, quoting Cecilia Munoz, a vice-president of the National Council of La Raza, that “They’re asking people to sign up for a program that is more likely to ensure their departure than ensure their permanent residency.” 154 New York Times, “Temporary
Immigration,” 1/12/04; SF Gate, “Undocumented Cows, Undocumented
People,” 1/13/04, at http://www.sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2004/01/13/eguillermo. 155 Supra, fn. 58. 156 Id. 157 The Arizona Republic, “More Reform Paved in Good Intentions,” 8/14/03.
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