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112th Congress' Attempts to Amend the Immigration and Nationality Act: Are Some of These for Real or Are They Meant to be Jokes? April Fools!

by Joseph Whalen

I enjoy a good joke as much as the next guy, but I have to ask if some of the items introduced in the 112th Congress are for real or just really bad jokes. I went to THOMAS, the Library of Congress website, and did as simply word search for "naturalization" on April 1st, 2011. The search returned 14 items. April Fools Day remains intact! Some of the bills returned by that search are legitimate attempts to make improvements, some are overzealous but valid attempts, some are overtly biased and easily identifiable as "pro-open-borders" or "anti-illegal-alien" as one would expect, BUT one in particular struck me as quite ridiculous. H.R.249 - "To permit Members of Congress to administer the oath of allegiance to applicants for naturalization" introduced by Rep Jose E. Serrano, [NY-16] on 1/7/2011, with zero co-sponsors, not even Sam Farr or Zoe Lofgren. I think a better title for this bill would be the "Pandering for Votes at Naturalization Ceremonies Act of 2011". Look it up and have a laugh.

There are three separate bills addressing English as the Official Language of the U.S., at least two specifically attacking the 14th Amendment's birthright citizenship and that provision is buried in at least one other, and some other crackpot bills. One that stands out as a legitimate effort but slightly overzealous is H.R.98 - "Illegal Immigration Enforcement and Social Security Protection Act of 2011" introduced by Rep David Dreier, [CA-26] on 1/5/2011. This one seek to improve the social security card and make it a more secure document, which I agree with, but it makes it mandatory to present one before one can be hired. This is impractical for legitimate non-immigrant workers who have to show work authorization to SSA before they can get a SSN. Also, some non-immigrants change from one classification to another in the U.S., such as a student who was not working and could not get a SSN obtaining CPT or OPT on a new I-20 or experiencing financial hardship and then applying for a SSN after they get an EAD. A newly arrived immigrant can work with their I-551 stamp in the passport but it might take a month to get their SSN. It is a well-meaning bill with some impractical items included. If it can be revised through committee or debate and amendments, it could have a chance someday.


Jose E. Serrano also introduced H.R.351 on 1/19/2011. This Act may be cited as the "Medicaid Newborn Coverage Act of 2011". This proposed amendment would be one that the "anti 14th Amendment birthright citizenship" crowd would love to attack as "proof" of the legitimacy of their "anchor-baby" battle-cry.


(a) In General- Section 1903(x)(2) of such Act (42 U.S.C. 1396b(x)(2)) is amended--

(1) by redesignating subparagraphs (D) and (E) as subparagraphs (E) and (F), respectively; and
(2) by inserting after subparagraph (C) the following new subparagraph:
(D) and is a child born to a woman eligible for and receiving medical assistance under this title on the date of the child's birth, without regard to the child's basis of eligibility for medical assistance, but only with respect to medical assistance for items and services furnished during the child's first year of life;'.

What on earth does this amendment mean?

Let's follow the legislative trail. Paragraph (x)(2) gets a new subparagraph that adds an exemption for requirements of (x)(1). (x)(1) would have required proof of U.S. Citizenship BUT we are talking about a newborn baby that was just born in the U.S., an automatic citizen in all but the MOST OBSCURE CASES (Diplomatic Immunity). So why would this need to be waived? IT doesn't, it was not required in the first place. We have to follow the trail a bit further. (x)(1) makes reference to (i)(22). (i)(22) refers to payment not being made to people declaring to be a USC or national under 42 USC 1320b-7(d)(1)(A) UNLESS they meet the requirements under (x). 42 USC 1320b-7(d)(1)(A) would have required the State to check eligibility with the "INS" which is now USCIS' SAVE Program. However, once the child is born, the "applicant" IS the "household" and ANY ADULT in that household can make the application on behalf of ANY USC in that "household". Therefore, to answer the original question---this amendment waives the requirement for the illegal alien mother and the rest of the family/household to be verified for eligibility for Medicaid and Food Stamps just by having a child born in the U.S. Talk about pandering for votes! Don't believe me, check it yourself.



42 USC 1396b. Payment to States

    (x) Satisfactory documentary evidence of citizenship or nationality by individual declaring to be citizen or national of United States
  • For purposes of subsection (i)(22), the requirement of this subsection is, with respect to an individual declaring to be a citizen or national of the United States, that, subject to paragraph (2), there is presented satisfactory documentary evidence of citizenship or nationality (as defined in paragraph (3)) of the individual.
  • The requirement of paragraph (1) shall not apply to an individual declaring to be a citizen or national of the United States who is eligible for medical assistance under this subchapter-

NEW ADDITION by Serrano's Amendment:

(D) and is a child born to a woman eligible for and receiving medical assistance under this title on the date of the child's birth, without regard to the child's basis of eligibility for medical assistance, but only with respect to medical assistance for items and services furnished during the child's first year of life;

(i) Payment for organ transplants; item or service furnished by excluded individual, entity, or physician; other restrictions

Payment under the preceding provisions of this section shall not be made--

(22) with respect to amounts expended for medical assistance for an individual who declares under section 1320b-7(d)(1)(A) of this title to be a citizen or national of the United States for purposes of establishing eligibility for benefits under this subchapter, unless the requirement of subsection (x) is met.


Part A--General Provisions

42 USC 1320b-7. Income and eligibility verification system

(d) Citizenship or immigration status requirements; documentation; verification by Immigration and Naturalization Service; denial of benefits; hearing The requirements of this subsection, with respect to an income and eligibility verification system of a State, are as follows:

    (1)(A) The State shall require, as a condition of an individual's eligibility for benefits under a program listed in subsection (b) of this section, a declaration in writing, under penalty of perjury--
  • by the individual,
  • in the case in which eligibility for program benefits is determined on a family or household basis, by any adult member of such individual's family or household (as applicable), or
  • in the case of an individual born into a family or household receiving benefits under such program, by any adult member of such family or household no later than the next redetermination of eligibility of such family or household following the birth of such individual, stating whether the individual is a citizen or national of the United States, and, if that individual is not a citizen or national of the United States, that the individual is in a satisfactory immigration status.

(b) Applicable programs

    The programs which must participate in the income and eligibility verification system are--
  • any State program funded under part A of subchapter IV of this chapter;
  • the medicaid program under subchapter XIX of this chapter;
  • the unemployment compensation program under section 3304 of the Internal Revenue Code of 1986;
  • the food stamp program under the Food Stamp Act of 1977 [7 U.S.C. 2011 et seq.]; and
  • any State program under a plan approved under subchapter I, X, XIV, or XVI of this chapter.

REPLACING THE DREAM ACT? (with something even more generous)?

Rep Joe Baca, [CA-43] introduced H.R.218 - "To amend the Immigration and Nationality Act to provide for naturalization for certain high school graduates" on 1/7/2011. The short title for this one is the "People Resolved to Obtain an Understanding of Democracy Act"; or the "P.R.O.U.D. Act" and it goes further than the DREAM Act by simply allowing any graduate of a U.S. high school up to age 25 to go straight from illegal alien to citizen by virtue of at least 6 years of illegal residence and a high school diploma. It waives INA 312 completely, so a non-English speaking illegal alien U.S. high school grad can be naturalized. It waives a part of INA 334(b) so does not require the intermediary step of becoming a lawful permanent resident, waives INA 318 along with any outstanding Removal Order, and does not require military service or any college attendance. The amendment DEEMS INA 312 and 316(a) SATISFIED except that the requirements for GMC remain a prerequisite for that 6 year period only.

Excerpt from H.R. 218:

(a) Requirements Deemed Satisfied- In the case of an alien described in subsection (b), the alien shall be deemed to have satisfied the requirements of--
(1) section 312(a); and
(2) section 316(a), if the alien sustains the burden of establishing that the alien has been a person of good moral character during the 6-year period preceding the date on which the alien submits the application described in subsection (c). [This badly written bill makes GMC a prerequisite ONLY and does not stop naturalization IF the reason for the Removal Order does not prevent naturalization apart from the Removal Order AND affirmatively does away with the requirement for CONTINUED GMC after filing.]

(b) Provisions Waived- In the case of an alien described in subsection (b), the alien shall be eligible for naturalization under this title without regard to the following provisions:
(1) Section 318. [In Removal Proceedings or Ordered Removed]
(2) The second sentence of section 334(b). [Averment of LPR status]

Taking a close reading of the above and I find that this bill is too generous and fundamentally flawed as written. This bill also, cuts the fee in half for this applicant. A worst-case scenario reading would be, IF a non-English speaking illegal alien high school grad, who is no older than 25, has not yet committed and/or been convicted of murder, rape, sexual abuse of a minor, any other aggravated felony; violated a non-waive-able controlled substance law (aside from the less than 30 grams of marijuana or amenable to 18 USC 3607, the Federal First Offender Act (FFOA)); or committed two or more CIMTs (aside from a waive-able juvenile delinquency) (acts preventing naturalization as described in 8 CFR 316.10) before filing the N-400 THEN, that would end the possibilities of denial of naturalization or deportation forever. This bill will NEVER get out of committee.

INA 316 [Deemed satisfied=waived?]

(a) No person, except as otherwise provided in this title, shall be naturalized, unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his application has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

H.R.218 COSPONSORS (12) as of April 1, 2011, BY DATE [order is left to right]:
Rep Gutierrez, Luis V. [IL-4] - 1/20/2011
Rep Pierluisi, Pedro R. [PR] - 1/20/2011
Rep Reyes, Silvestre [TX-16] - 2/8/2011
Rep Norton, Eleanor Holmes [DC] - 2/8/2011
Rep Farr, Sam [CA-17] - 2/10/2011
Rep Serrano, Jose E. [NY-16] - 2/10/2011
Rep Grijalva, Raul M. [AZ-7] - 2/10/2011
Rep Gonzalez, Charles A. [TX-20] - 2/14/2011
Rep Filner, Bob [CA-51] - 2/14/2011
Rep Wilson, Frederica [FL-17] - 2/18/2011
Rep Stark, Fortney Pete [CA-13] - 2/28/2011
Rep Sablan, Gregorio Kilili Camacho [MP] - 3/10/2011

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

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

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