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The Senate Bill And The Undocumented - Estimates Of How Many People Might Qualify

by Maurice Belanger for the National Immigration Forum

Editor's Note: The information in this article was accurate at the time of writing. Further amendments have been voted on since May 17, 2006.

As the debate proceeds on the Senate debate, questions have been raised as to how many undocumented immigrants would eventually be legalized by the Senate bill (the "Hagel-Martinez" compromise).

The answer is that the ultimate number will depend on what amendments are incorporated into the bill as it moves forward. As it stands now, the compromise needs improvement.

Barriers to Successful Implementation Contained in the Bill

There are a number of enforcement provisions in the bill that would, if not corrected, lead to unintended consequences when it comes time to implement the legalization provisions of the bill. Without amendment, these provisions will disqualify millions of undocumented immigrants from participation in the program. There are indications that the bi-partisan coalition of Senators who support comprehensive immigration reform are amenable to fix at least some of these flaws, so that the legalization provisions can be successfully implemented.

Document fraud:
Chief among those provisions is a section that would make undocumented workers who continue to use fake documents between date of enactment and application "inadmissible." This could include people who have provided false information on an I-9 form and continue to work in that same job after enactment, or individuals who change jobs after enactment and continue to use fake documents for work or other life circumstances. Turn-over rates are often high in lower-skilled occupations, and it is quite possible that upwards of millions of undocumented immigrants could change employment between enactment and implementation.

Barriers to participation for those here between 2 and 5 years:
Those who have resided here since January 7, 2004, but less than five years, are not treated as generously as those residing here longer, and there are several provisions in the bill that would make their participation less likely.

  • There is a provision that requires applicants to waive their right to contest a denial of their application and any future removal action.
  • There is no confidentiality clause for this group (as there is for those being offered legalization).
  • There is only a three-month application window for this group of 2.8 million immigrants.
  • Persons who have final orders of removal pending, or who have failed to depart according to a voluntary departure agreement, are barred from participation in the legalization program.

Undocumented immigrants arriving after January 7, 2004, not included in legalization program:
In addition to the provisions outlined above that might be considered internal contradictions, the design of the compromise itself excludes undocumented immigrants who arrived after January 7, 2004. That will leave approximately 1.6 million without an option for legalizing their status. While these immigrants are not precluded from participation in the contemplated temporary worker program, there is insufficient support among the reformers in the Senate to treat the newly arrived undocumented with the same benefits as those who have resided here a long time.

Amendments That May Chip Away at Legalization

Exclusion of those ordered removed:
An amendment offered by Senators Cornyn and Kyl (and accepted) will prevent those who have final orders of removal from participating in the program. The original amendment has been modified to provide for waivers for some. Persons who have been here between 2 and 5 years are already barred from participation in the legalization program if they have a final order of removal pending.

Other Amendments:
There are other amendments that will reduce the viability of the bill, including an amendment to eliminate the legalization program; an amendment to deny legalization to undocumented immigrants while inside the country; an amendment to deny undocumented immigrants the ability to self-attest to the requirements for legalization; and amendments to eliminate a path to permanent residence for some or all of those who come to the U.S. in the new temporary worker program. It is expected that the pro-reform coalition will defeat these amendments.

Estimates, Assuming the Coalition Holds

To review, the Hagel-Martinez compromise treats the undocumented in the following way: " Those who have been here for five years or more would be offered a direct and multi-step process to permanent residence. " Persons who had been in the U.S. prior to January 7, 2004, but less than five years, would have to briefly leave the U.S. (but will not necessarily have to return to their home country), but will be able to come back in immediately and get on track for permanent residence, obtainable within eight years. All paperwork will be done within the U.S., not in consulates abroad. " Those here since January 7, 2004, would not be eligible for legalization. On the other hand, they would not be barred from the programs to legalize the future flow of immigrants, including the temporary worker program and increased family and employment visas. Bars to re-entry would be waived for this group.

Estimates of those who might be excluded:
As mentioned above, the document fraud provision could prevent millions from participating in the legalization program, but we are told that there is likely sufficient support among the coalition of reformers in the Senate to fix this problem, as it would obviously undermine the intent of the legalization program.

The collection of provisions that apply to those who have been here longer than two years but less than five years might depress participation by making the ultimate reward of legalization just too uncertain. The lack of confidentiality and requirement to give up all right of appeal may be a deterrent to stepping forward. The brief application period will increase the likelihood that many will miss the deadline. We are pushing to have some or all of these problems fixed. If not all corrected, we believe that one-quarter to one-third of the 2.8 million undocumented immigrants in this category would not step forward-or about 700,000 - 900,000.

An undocumented immigrant who has an outstanding order of deportation is prohibited from participating in the program (though there are waivers that will be available for some). That will exclude perhaps another 350,000 to 500,000 depending on how the waivers are implemented.

Grand total, given the current scenario
Assuming the fixes that we believe can be obtained are obtained as the Senate bill moves through the amendment process, the potential number of those who may benefit from the legalization provisions will be:

  • More than 11 million total undocumented immigrants, minus
  • 1.6 million undocumented arriving after January 7, 2004 (not eligible to participate), minus
  • 350,000 to 500,000 undocumented previously ordered removed, minus
  • 700,000 to 900,000 (one-quarter to one-third) of the 2.8 million who have been here between two and five years, who might be afraid to risk turning themselves in or who will have insufficient time to apply (if these provisions are not fixed).

For a grand total of, very roughly, 8 million or 8.5 million who would qualify for legalization and be put on a path to citizenship. As with any estimate of how an uncertain number of undocumented immigrants may act in the future and how an evolving policy proposal might affect them, this is a guess. However, as things stand right now, given a supportive reform coalition of Senators it is not an unreasonable guess.

Will the Coalition Hold? First Results In

The above discussion of course depends on the coalition of Democratic and Republican senators holding together to gain some improvements in the bill, and defeating the amendments being offered by hard-liners intent on undermining comprehensive reform. If the coalition doesn't hold, and comprehensive reform is no longer viable, we would recommend opposition to the bill. At this moment, with support strong in the Senate for comprehensive immigration reform and with supporters of reform seeming to be poised to block hard-line amendments, we do not feel that it makes sense to call it quits while the game is just getting under way. The strategy, after all, is to defeat the House bill, a strategy that, in our view, becomes more difficult without a Senate bill that is as close to the Kennedy/McCain bill as it can be.

Early indications from the floor debate are promising. The first vote was on an amendment by Senator Isakson of Georgia (R). That amendment would have suspended implementation of the legalization program and temporary worker program (and increases in permanent legal immigration) until DHS certified that the enforcement provisions of the bill were fully funded and implemented. This "enforcement first" approach is very similar to what many of the hard-liners in the House want to see. The amendment failed by a vote of 55 to 40. Eighteen Republicans joined Democrats to kill the amendment.

Reformers in the Senate were given a major boost when the President addressed the nation during prime time on the subject of immigration reform. He said that he believes that the undocumented should be provided with an opportunity to eventually become citizens, and his formulation is very similar to the bill being debated now on the Senate floor.

It will take more than symbolic acts from the President to move comprehensive reform over the goal line. The President will have to remain engaged throughout the debate as it plays out on the Senate floor and in the House/Senate conference committee. In the mean time, he has given a green light to reformers in the Senate, and early indications are that the coalition is holding together.

Editor's Note: The following information about additional amendments is provided courtesy of Gregory Siskind, Esq. and is current as of 3pm, 5/19/06.

Thursday, May 18, 2006




Wednesday, May 17, 2006




About The Author

Maurice Belanger is the Director of Public Information at the National Immigration Forum. The National Immigration Forum is one of the leading immigrant advocacy policy groups in the nation.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.