Immigration News: July, 2005 - Volume 12

Congress: Real ID, Guest Workers

The Real ID Act of 2005, which would establish national standards for drivers licenses, was signed into law in May 2005. Under Real ID, states must verify that applicants for licenses are legal U.S. residents within three years, a process expected to cost $500 million. Licenses and IDs from states that do not follow these guidelines could not be used for federal purposes, such as for boarding airplanes.

In May 2005, 11 states permitted foreigners who do not have visas to obtain drivers licenses. There is no reliable estimate of how many licenses have been issued to noncitizens in the US legally or illegally. Critics said that Real ID would not prevent terrorists from obtaining licenses, but would make it hard for otherwise law-abiding unauthorized foreigners to live and work in the US. Supporters of Real ID said that was the purpose--they want to make it harder for foreigners to remain in the US without authorization.

Some states threatened to defy Real ID, arguing that it is an unfunded federal mandate. Administrators protested they would have to re-program DMV computers so that driver's licenses issued to temporary foreign residents expired on the same date that their visas expired. Some 36 states currently verify the Social Security Numbers presented by applicants.

Tennessee is one of two states that issue drivers' licenses stamped "Not Valid for Identification" to unauthorized foreigners and temporary legal residents, and some 21,000 were issued in the nine months after July 1, 2004. Interviews with immigrants found that many were grateful for the one-year driving permits, but also frustrated because some banks did not honor the IDs to open accounts.

Since 2001, eight states, including major immigration destinations such as Texas, California and New York, have enacted laws allowing unauthorized children who graduate from local high schools to pay in-state tuition at state-funded universities. State officials say they expected Congress to approve the Dream Act, which would allow unauthorized foreigners in the U.S. at least five years to get temporary legal residency upon completion of high school, and make those who attended college or joined the military eligible for permanent residency. Congress has not acted.

Guest Workers. On April 19, 2005, the Senate voted on three immigration-related amendments to the emergency military spending bill: each needed 60 votes for approval. AgJOBS received 53 votes (45 Senators voted against attaching AgJOBS). An opposing proposal by Sen. Saxby Chambliss, R-GA, that would have allowed some unauthorized farm workers to become guest workers was defeated 77-21. However, an amendment to allow the return of H-2B workers who had been in the US in previous years outside the 66,000 a year ceiling was approved 94-6; the exemption is valid in 2005 and 2006.

Senators John McCain (R-AZ) and Edward Kennedy (D-MA) introduced the 105-page Secure America and Orderly Immigration Act of 2005 (S. 1033/H.R. 2330) to implement the proposals of President Bush in May 2005. The 11-title bill would aim to enhance border security, re-authorize a program that reimburses state and local governments for the cost of imprisoning unauthorized foreigners, and create a new "Essential Worker Visa Program." (www.cirnow.org)

Some 400,000 new H-5A and H-5B visas would be available for essential workers inside and outside the US; the cap could be adjusted year by year in response to US labor market conditions. Foreigners who are outside the US but had a US job offer would pay $500 for an H-5A visa valid for three years and renewable once; at the end of six years, the worker would have to return home or be in the pipeline for a green card. The H-5 visas would be portable, meaning the worker could change US employers, but workers who lost US jobs would have to find another US job within 60 days. H-5 visa holders could enter and leave the US.

Unauthorized foreigners in the US on May 12, 2005 could apply for H-5B visas if they could show they had a US work history and passed background checks; their family members would also be eligible for visas. However, in order to qualify for permanent or immigrant status, they would have to continue working in the US, pass additional security and background checks, and pay a fee/fine of at least $2,000.

Employers could sponsor H-5A and H-5B workers for immigrant visas after they had been employed at least four years in the US, and workers could apply on their own for immigrant visas after five years of US employment. The number of immigration visas available for economic/employment reasons would be increased from 140,000 to 290,000 a year (this includes principals and their family members).

To make available more immigration visas for family unification, immediate relatives of U.S. citizens would no longer be counted against the 480,000 annual cap on family-sponsored immigration visas, and the income requirement for sponsoring family members would be reduced from 125 percent of the poverty line to 100 percent.

A public-private foundation would be created under the USCIS Office of Citizenship to support programs that promote citizenship and to fund civics and English-language instruction for immigrants. The bill would extend federal reimbursement for hospitals that provide emergency care to unauthorized foreigners as well as to H-5A and H-5B workers.

McCain-Kennedy would create a new electronic work authorization system that would ultimately replace the current paper-based, I-9 system. The Department of Labor would gain new authority to conduct random audits of employers to ensure compliance with labor laws, and fines for illegal employment practices would be increased.

The bill aims to promote circular migration by requiring Mexico and other foreign countries to enter into migration agreements with the U.S. that help control the flow of their citizens to jobs in the U.S. and encourage the re-integration of citizens returning from the US.

A competing bill is expected to be introduced in Summer 2005 by Senators Jon Kyl (R-AZ) and John Cornyn (R-TX). It would require government certification that illegal migration is under control before any new temporary worker program is launched. Unlike McCain-Kennedy, the Kyl-Cornyn bill would require unauthorized foreigners in the US to return to their countries of origin before they could adjust to immigrant status.

Outlook. US immigration policy has been based on the premise that foreigners should enter and be in the US legally. Employer sanctions in the mid-1980s and the border control build-up after the mid-1990s aimed at control. However, in the absence of internal enforcement, the result became something of a Darwinian border-crossing test- those who eluded the border patrol found it relatively easy to obtain false documents and US jobs, and the US employers who hired them faced little risk of fines.

President Bush, in arguing that legal is better than illegal, has proposed a temporary worker program for unauthorized workers inside and outside the US. At least implicitly, Bush was saying that the border could not be "controlled" and that unauthorized workers are "needed" in the US, justifying his proposal to "match willing foreign workers with willing American employers."

Turning Bush's general proposals into concrete plans, as McCain-Kennedy does, requires hard choices about issues that range from what employers must do before hiring guest workers to how the government will monitor them inside the US. One proposal is to issue work visas that do not tie guest workers to a particular employer, under the theory that this protects the worker by allowing her to leave bad employers.

All proposals require that foreigners work in the US or leave, which means a monitoring system would have to be established to track the US work done by guest workers. In order to avoid the charge that turning unauthorized foreigners into guest workers is an amnesty, some proposals call for the unauthorized with US employers to leave the US and re-enter with guest worker visas.

A major difference between the proposals is what happens at the end of several years of US work. President Bush said that, after a maximum of six years, guest workers would have to leave if they had not found a way to obtain an immigrant visa, either through family unification or having a US employer sponsor them. McCain-Kennedy would give guest workers additional avenues to apply for immigrant visas and increase the number of such visas available. Both proposals have been careful to ensure that unauthorized foreigners in the US do not gain an advantage in the quest for a green card over those who "played by the rules" and waited in their countries of origin.

In June 2005, Bush said that he would press Congress to begin immigration reform by improving border security, and then turn to legalizing unauthorized foreigners in the US. Homeland Security Secretary Michael Chertoff on July 13, 2005 announced plans to streamline DHS, which includes 183,000 employees drawn from 22 federal agencies, and said that immigration reform is a key component of improved security: "I look forward to working with Congress . . . this year to improve border security significantly through the president's temporary-worker program."

However, Senate Majority Leader Bill Frist (R-TN) said that Congress was unlikely to approve an immigration reform that includes a new guest worker program in 2005, but could act in 2006. A Frist aide noted that, even if the Senate approved immigration reform, the House is unlikely to act because of sharp divisions, especially within the majority Republicans.

Meanwhile, a reporter interviewing Mexicans who were apprehended and returned found that US discussions of legalization and guest workers was attracting more Mexicans to the US. One migrant among the 300 who are flown every day to Mexico City thanked the US for the free flight and promised to return and try again to enter the US.

Susana Hayward, "Getting caught doesn't deter migrants bent on finding work in US," Knight Ridder, July 15, 2005.