Immigration News: October, 2005 - Volume 12

Congress: Bills, Emergencies

Senators John Cornyn (R-TX) and Jon Kyl (R-AZ) introduced the Comprehensive Enforcement and Immigration Reform Act of 2005 in July 2005. It would provide an additional $5 billion for border enforcement technology, add 10,000 agents to investigate employers who hire illegal aliens and create secure machine-readable, tamper-resistant Social Security cards. (www.cornyn.senate.gov/immigration/) Cornyn-Kyl would also create a new guest worker program that would allow migrants to work in the US for up to three two-year terms, with a mandatory gap of at least a year in their home country between work terms. Family members would not be allowed to live with immigrant relatives in the US, but could visit for up to 30 days each year.

Cornyn-Kyl would allow unauthorized foreigners in the US to register for "mandatory departure" and return to their countries of origin before re-entering with guest worker visas. Only nationals of countries that sign bilateral agreements promising to cooperate to control illegal migration and reduce gang violence, smuggling and human trafficking could participate. Cornyn-Kyl would eliminate the diversity visa program to make more visas available for other immigrants, and create temporary worker investment funds in sending countries to encourage aliens to return home.

Critics immediately asserted that many unauthorized foreigners with jobs in the US would not register and leave for fear that they could not get worker visas to return.

Representative Tom Tancredo (R-CA) introduced a bill in July 2005 that would create a new guest worker program under which foreigners could be employed in the US a maximum 365 days in two years. However, before Tancredo guest workers could be admitted, the US government would have to certify that several enforcement benchmarks had been met including the removal of at least 80 percent of visa overstayers within a year of overstaying. Unlawful presence in the US would become a felony, and employer sanctions laws would be toughened and enforced more vigorously. The Tancredo bill has little chance of enactment, but Tancredo suggested that he may run for president on a restrictionist platform.

Many unions and churches favor the McCain-Kennedy bill, introduced as the Secure America and Orderly Immigration Act in May 2005. McCain-Kennedy would make 400,000 new H-5A and H-5B visas available to "essential foreign workers" inside and outside the United States. Unauthorized foreigners inside the US could apply for work visas without leaving, and travel in and out of the US while working up to six years. At the end of six years of US work, these guest workers would have to leave or be in line for an immigrant visa, and pay fee/fine of at least $2,000.

The Senate Judiciary Committee held a hearing on immigration reform on July 26, 2005 that featured a panel of senators who have introduced immigration reform bills as well as testimony from representatives of organizations advocating easier entry for migrant workers. At the last minute, however, the Bush administration cancelled scheduled appearances by the Secretaries of DHS and Labor. Presidential advisor Karl Rove met with Republican Congressional representatives on September 14, 2005 and reportedly said that President Bush favors a McCain-Kennedy concept of two three-year work terms, albeit with required departures from the US or immigrant status after six years.

Another Senate Judiciary Committee hearing on immigration reform is scheduled for October 18, 2005, with Michael Chertoff, Secretary of Homeland Security and Elaine Chao, Secretary of Labor, as witnesses. The House Judiciary Committee seems inclined to endorse an enforcement-first approach, more border security first, then stepped up interior enforcement, and finally a new guestworker program.

The Agricultural Job Opportunity, Benefits and Security Act (AgJOBS) got 54 votes in an April 2005 Senate vote, and supporters promised to attach it to must-pass legislation in the Senate, but did not do so during summer 2005. AgJOBS would allow currently unauthorized farm workers to become guest workers who could earn an immigrant status for themselves and their families if they did some farm work over the next six years. Eventual legalization appeals to farm worker advocates, and farmers support AgJOBS because it simplifies the process of obtaining guest workers by revising the current H-2A program.

Perspective. Most predictions are that 2005 will be a year of debate on immigration, with new laws perhaps enacted in 2006. The contradictions of current policy, which has not reduced illegal migration significantly but has made it more difficult for unauthorized foreigners to enter the US, could lead to several outcomes.

Restrictionists hope that the tighter administration of certain regulations that apply to all citizens, started in the wake of 9/11, will cause many unauthorized foreigners to leave on their own. For example, states are increasingly demanding proof of legal residence before issuing driver's licenses. Several states are now training their police forces in methods of active cooperation with the federal government in enforcing immigration laws - something they resisted a decade ago. Even such developments as the spreading requirement of criminal background checks increasingly required of all those who come into contact with school children will, in this view, reveal the lack of legal status of a sizeable number of unauthorized workers - and faced with difficulty in finding and keeping jobs, will elect to return to their home countries.

Admissionists say that it is unrealistic to expect the vast majority of the unauthorized to depart on their own, and that the only real policy decision is how to bring unauthorized foreigners out of the shadows and integrate them into the US.

The Los Angeles Times on August 9, 2005 urged action, saying "Washington needs to create a legal framework for the flow of labor, or alter the labor market dynamics to shut down the flow." However, Congressional Republicans, who previously united around President Bush's goals of reforming Social Security, the tax code and immigration law, are increasingly inclined to criticize Bush. This lack of unity among Republicans may make it hard to enact controversial immigration reform legislation.

A White House-backed coalition headed by ex-Representatives Cal Dooley (D-CA) and Dick Armey (R-TX) aims to achieve the consensus needed for immigration reform. The coalition asked for contributions of $50,000 and $250,000 from corporations and advocacy groups with a direct interest in immigration to pay for a campaign resembling one in support of a referendum proposition to win support for heightened border security and a guest-worker program.

Emergencies. The governors of Arizona and New Mexico in August 2005 declared emergencies in their eight border counties, citing the US government's inability to control crime and violence related to illegal immigration. The declarations make $2.2 million in state disaster funds available to local police agencies for overtime costs and equipment. DHS responded by outlining new steps to speed removals of unauthorized foreigners and offering to work with the states to deal with "the violent human smuggling trade."

New Mexico's governor, Bill Richardson, called on Mexico to raze Las Chepas, a Mexican town near the border that serves as a staging area for migrants and smugglers headed 40 miles north to Interstate 10. Most of the original residents of Las Chepas were legalized by IRCA because they had worked illegally in New Mexican agriculture. When the Mexican government cut off aid to the hamlet in 1990, the school closed and most residents left; smugglers have taken over most of the abandoned buildings.

President Bush visited the Arizona border on August 29, 2005 and promised more Border Patrol agents and detention beds "to make sure this border of ours is secure." Bush did not mention his guest worker proposal, or discuss the benefits of immigration to the US economy. Despite pressure from some groups, California Governor Arnold Schwarzenegger did not declare a border emergency, saying: "A declaration of emergency is not authorized in the absence of conditions of extreme peril to the safety of persons or property beyond the means of local government to address... the current situation in California does not rise to this level."

Mexican President Fox said that the US shares responsibility for border-area problems and should work harder with Mexico to fix them. Highlighting migrant contributions, Fox said that Mexicans would be involved in the reconstruction of New Orleans: "if there is anything Mexicans are good at, it is construction."

Since 1995, the number of Border Patrol agents has climbed from 4,000 to 11,000. They apprehend more than a million foreigners a year along the Mexico-US border, mostly in Arizona. DHS spends about $7.3 billion a year policing the border, and announced that it is mapping every mile of the Mexico-US border to estimate how many migrants use each of the various entry corridors in order to deploy an additional 1,000 agents.

Arizona's Proposition 200, approved in November 2004, bars illegal migrants from receiving certain public benefits and makes it a crime for public employees to fail to report unauthorized foreigners who seek welfare benefits. A separate provision requires people to show proof of citizenship when registering to vote. A federal judge refused to block the implementation of Proposition 200, and his order was upheld by the 9th Circuit Court of Appeals in August 2005.

Washington's Initiative 343 matches Arizona's Proposition 200 in tightening electoral registration and voting requirements and denying state benefits to unauthorized residents. To qualify for the 2006 ballot, the initiative needs 224,880 valid signatures by December 30, 2005.

The IRS issues Individual Taxpayer Identification Numbers (ITINs) to unauthorized foreigners unable to get SSNs. Some eight million have been issued since 1995, and two million are used on tax returns each year. ITINs are now being used to get mortgages, with those who can show that they have paid taxes for two years usually eligible for real estate loans, even though Fannie Mae and Freddie Mac do not buy loans made to unauthorized foreigners. However, the Federal Deposit Insurance Corp encourages banks to make loans to all qualified persons with SSNs or ITINs.

Eric Lipton, "Homeland Security Chief Tells of Plan to Stabilize Border," New York Times, August 24, 2005. Peter Wallsten and Nicole Gaouette, "Immigration Rising on Bush's To-Do List," Los Angeles Times, July 24, 2005.