What Will Comprehensive Immigration Reform Look Like in 2013?

By Tom K. Wong, tomkwong@ucsd.edu, @twong002

As the comprehensive immigration reform (CIR) debate proceeds in Congress, much of how the final bill will look – as well as what is likely to give rise to some of the most impassioned debates – will be determined by the amendments that are ultimately introduced and voted on. The history of U.S. immigration policy makes clear that such amendments will not simply change an immigration bill at the margins. After all, it was an amendment to the 1882 Chinese Exclusion Act that made Chinese persons ineligible for U.S. citizenship. A look at the amendments that were introduced during recent (failed) immigration reform efforts thus provides a window into what we can expect in the coming months as the 2013 version of CIR takes shape.

While the “devil remains in the details” when it comes to the exact contours of immigration reform, in analyzing past amendments, it may very well be the case that the details are already known. For one, many of the amendments that came up during the 2006 and 2007 pushes for CIR in the Senate either foreshadow – or, in some cases, even mirror – what we know so far about current reform proposals. These include various enforcement triggers before legalization (e.g. the Isakson Amendment 3961 in 2006 and the Vitter Amendment 1139 in 2007), an 8-year legalization process (the Feinstein Amendment 4087 in 2006), and making undocumented immigrants go to the “back of the line” before they can begin the process of legalization (the Allard Amendment 1189 in 2007). Second, many of the legislators who introduced some of the most controversial amendments during previous reform efforts are still in office today. This includes Louisiana Senator David Vitter, a Republican who introduced amendments in 2006 and 2007 that, if passed, would have removed legalization from CIR altogether.

On the one hand, this means that those currently crafting an immigration reform bill can look to recent history to create a bill with the broadest base of legislative support. On the other hand, the sheer number of amendments that we are likely to see and the fact that many of these amendments will work at cross-purposes, means that any bill that is introduced – no matter how carefully written – will undergo significant changes during the legislative process. Indeed, during the debate over H.R. 4437 in the House in 2005, 31 amendments were brought to the floor and voted on. During the push for CIR in the Senate in 2006, 45 amendments were voted on. In 2007, this number was 35. In all, a combined 71 percent of amendments were passed during these last three major immigration reform efforts.

Here are just a few examples that illustrate the impact of these amendments. Had H.R. 4437 become law in 2005 it would have contained language that would have required the reduction of the visa backlog in 6 months (the Velazquez Amendment 657), but it would have also eliminated the diversity visa (the Goodlatte Amendment 650). And had the 2006 CIR bill become law, the total number of immigrants admitted annually as legal permanent residents (LPRs) would have been capped at 650,000 (the Bingaman Amendment 4131). These amendments would have fundamentally changed our legal admissions system. Moreover, in the arguably more charged area of legalization, had the 2007 CIR bill passed, the personal information of those who applied for legalization, but were denied, would have been shared with immigration enforcement agencies (the Cornyn Amendment 1250).

The following identifies major amendments that are likely to reappear, either as part of a bill that is introduced, or again as an amendment, during the 2013 CIR debate (click on the infographic, it is interactive).

Legalization

The current discussion about legalization revolves mostly around the question of a path to citizenship. To be clear, legalization without a path to citizenship, which would create a large pool of legal persons without rights that are commensurate with the rest of the population, is largely unprecedented. In this sense, we are in uncharted waters. This notwithstanding, several amendments that were introduced during recent immigration reform efforts provide a great deal of insight into what we can expect once a bill is introduced.

In addition to border security and immigration enforcement triggers we are likely to see attempts to:

  • Remove legalization/path to citizenship from CIR altogether
  • Share information on denied applicants for legalization/path to citizenship with enforcement agencies
  • Set minimum or maximum wait times before legalization/path to citizenship can occur
  • Limit those who are eligible to adjust their immigration status
  • Establish burden of proof criteria for those who apply for legalization/path to citizenship 
  • Debate over what “earned legalization/citizenship” entails
  • Limiting benefits to the newly legalized population (e.g., no social security benefits, non-eligibility for earned income tax credit)

Admissions

When it comes to legal admissions, it is clear that the 2013 version of CIR will seek to completely overhaul our current system. In addition to the list below, we are also likely to see efforts to redefine spouses as permanent partners in order to include LGBT families in the family reunification process (see the Uniting American Families Act). If not already included in a bill, we are also likely to see amendments that seek to:

  • Eliminate the diversity visa
  • Limit the total number of persons admitted annually into the U.S.
  • Increase visas for STEM degree holders
  • Reclassify spouses and minor children of legal permanent residents as immediate relatives (see Reuniting American Families Act
  • Limit family reunification (see Nuclear Family Priority Act)
  • Broaden the categories of people subject to permanent immigration bars
  • Reduce the visa backlog

Immigration Enforcement

Many of the amendments that were introduced during previous reform efforts addressed the issue of immigration enforcement, in particular, interior immigration enforcement. Regarding immigration detention and deportation, we are likely to see efforts to:

  • Both end and expand the practice of expedited removal
  • Prohibit immigration courts from ordering a stay of deportation or removal
  • Create waivers of inadmissibility or removal when deportation would result in hardship to a spouse, parent, or child of a U.S. citizen or legal permanent resident
  • Provide secure alternatives to detention
  • Build at least 20 new immigration detention centers

Regarding employer sanctions, local cooperation with federal immigration authorities, and the criminalization of unauthorized immigration, we are likely to see efforts to:

  • Make E-Verify permanent and mandatory, while also raising or setting limits on the penalties that employers who hire unauthorized workers have to pay
  • Deepen information sharing between federal and local law enforcement agencies
  • Withhold law enforcement grants from localities that do not share information with immigration enforcement agencies
  • Provide training and resources to state and local law enforcement agencies so that they can assist in the enforcement of immigration law
  • Establish minimum criminal sentences for those who reenter the U.S. after being deported
  • Criminalize unlawful presence

Border Security

During the debate over H.R. 4437 in 2005, several amendments related to border security were introduced and voted on. These included amendments that set deadlines to achieve operational control of the border (within 18 months), increase the amount of border fencing, increase the number of border patrol personnel, and enhance the use of surveillance technologies. In 2006, the Senate repeated many of these same calls, while adding the creation of a rapid response border unit, which would require 1,000 additional personnel, 250 power boats, and 100 helicopters, among other resources. At this stage, many of the border measures that were called for during previous immigration reform efforts, have largely been met (see here).

Special thanks to Hillary Kosnac, Cat Benson, Brana Vlasic, Cameron Kaveh, and Sierra Graves for wonderful research assistance.