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Análisis
bipartidista detallado del proyecto inmigratorio para 2010, iniciado
el 21 de enero en el Senado 1.
OVERVIEW (by NILC)
Much of the text below comes from the excellent analysis of the NILC, National Immigration Law Center. We put a "N" before material from NILC. We describe Title III on Legalization before Titles I (Family Unification) and II (Willing Workers). N: The announcement is an important and welcome development because it represents the first time that members of Congress have been willing to take the political risks and make the hard choices necessary to create a serious and appropriately detailed bipartisan proposal. No immigration bill has a chance of becoming law in the foreseeable future without support from members of both parties. Unfortunately, S. 2010 also includes serious flaws that must be addressed in the years that remain before comprehensive reform is likely to be enacted. It is expected that other similarly comprehensive bills will be introduced in coming weeks that will define the parameters of a debate that will likely last years. In the meantime, it still remains the case that more limited proposals are the only ones with a reasonable chance to be enacted this year. Among these are: •
the DREAM Act (S 1545, HR 1684) and 2. SUMMARY OF PROVISIONS TITLE III: EARNED ADJUSTMENT 1) DIRECT PATH TO LEGALIZATION Summary: Requirements to Obtain Earned Adjustment for Those Who have 5 years in US and worked 3 years: A) Eligibility Requirements: •
Requirement of 5 years physical presence during the period preceding
of January 21, 2004 (other than brief, casual, or innocent absences).
B) Grounds of Inadmissibility and Other Bars that Do Not Apply:
• A number of inadmissibility grounds do not apply, including
the "3/10 year" and permanent bar in 212(a)(9); unlawfully
present in U.S. and material misrepresentation found in 212(a)(6).
C) Fees and Other Procedural Requirements
• pay a $1,000 fine plus fees, 2) TRANSITIONAL WORKER PROGRAM (N)
* An additional a “transitional worker” program would
be available to some undocumented immigrants who do not satisfy
the continuous residence and/or work requirements and have worked
in the U.S. for at least two of the five years before introduction
of the bill. An apparent drafting error makes the specific requirements
necessary to qualify for this provision a little murky in that it
requires that the immigrant had worked legally for two years prior
to January 21, 2004. TITLE I: FAMILY REUNIFICATION (N) *
S. 2010 would reclassify the spouses and minor children of legal
permanent residents (LPR’s) as “immediate relatives”
not subject to per-country immigration limits. TITLE II: WILLING WORKER PROGRAM (N) *
S. 2010 would significantly modify the current H-2b temporary worker
program and create a new H-2c program. Together the two programs
would provide up to 350,000 temporary visas each year, a more than
five-fold increase over the current H-2b program visa availability.
* A key feature of the new programs—and one which strongly differentiates it from the President’s guestworker plan—is that the employer or the worker’s union would be permitted to petition at any time for a temporary worker to remain in the U.S. permanently. In addition, after three years of temporary status the worker would not need to rely on the employer because she would be eligible to petition for herself. * Employer requirements and worker protections * An employer wishing to make use of the program would pay a per-worker fee and would be required to abide by certain regulations designed to protect U.S. workers. For example, participating employers would be required to attest that they are not involved in a labor dispute, that they have tried and failed to recruit U.S. workers, and that they will pay the prevailing wage to the temporary workers. S. 2010 provides an administrative complaint procedure for violations of these provisions that could result in a fine against the employer and equitable relief for the aggrieved worker, plus the employer could be barred from participating in the guestworker program for one or more years. Importantly, though, workers would have no access to court to enforce their rights. * Temporary workers would be entitled to the full protection of federal, state, and local labor laws enjoyed by other workers and there are some important provisions such as whistleblower protections intended to address the particular vulnerabilities faced by guestworkers who endeavor to enforce these rights. But unfortunately labor laws are notoriously insufficient to protect all workers in the sectors where immigrant workers are concentrated, and S. 2010 provides no additional resources to improve enforcement of workplace protections such as minimum wage and worker safety. * Sadly, because labor law enforcement is so ineffective, the only practical solution available to an exploited worker is often to change jobs. S. 2010 includes a limited implementation of an important feature known as “portability” under which temporary workers would be permitted to change employers without losing their right to remain in the U.S. Under S. 2010, the new employer would have to meet the qualifications and paperwork requirements for participation in the temporary worker program, and would have to file the same petition as the original employer. In some cases the worker would also be required to obtain a waiver from the Department of Homeland Security before switching jobs. 3. AREAS FOR IMPROVEMENT IN THE BILL (N) FAILURE TO PROTECT U.S. WORKERS: One serious flaw in S. 2010 is its failure to adequately protect U.S. workers--including immigrants--from employers who seek to abuse the new temporary worker program. For example, the bill leaves in place the damaging Supreme Court decision in Hoffman Plastic Compounds v. NLRB, in which the Court restricted the remedies available to an undocumented worker whose employer violates worker protection laws. It is important not to promise worker protections that will not be enforceable or actually available in practice. S. 2010 relies too heavily on employer attestations and administrative remedies. It does not permit a worker to go to court to redress a violation. NEED TO ADD FUNDS FOR ENGLISH LANGUAGE INSTRUCTION AND OTHER SOCIAL SERVICES: In addition, the bill fails to provide for such needs as English language instruction, basic health care, and economic development to rapidly increase immigrant productivity in the U.S. economy, and to help states and communities adjust to the uneven distribution of needs and opportunities that immigrants provide. 4. PRESS RELEASE FROM THE AUTHORS OF THE BILL FOR IMMEDIATE RELEASE (excerpts) Contact: Mike Buttry (Hagel) 202-224-5809 Todd Webster (Daschle) (202) 224-2939 January 21, 2004 Hagel, Daschle to offer Comprehensive, Bipartisan Immigration Reform Legislation would Strengthen National Security, Improve Economic Stability, and Re-unify Immigrant Families Washington, D.C.- In a bipartisan effort to strengthen border enforcement and improve economic stability, U.S. Senator Chuck Hagel (R-NE) and Senate Democratic Leader Tom Daschle (D-SD) today introduced "The Immigration Reform Act of 2004: Strengthening America's National Security, Economy, and Families." Responding to the President's call for a national debate on immigration reform, the bill will provide comprehensive reform of U.S. immigration, improving national security, increasing predictability in the U.S. job market, and reuniting immigrant families who play by the rules. "Immigration reform is an urgent national security priority. We cannot continue to defer making tough choices about our nation's immigration policy. It is not in our security interest to have 8-10 million people undocumented and unaccounted for in our country. Congress must reform the patchwork of immigration laws that have created an underground, black market labor force," Hagel said. "The legislation we introduce today is responsible immigration reform. This is a debate that we have deferred for too long. President Bush deserves credit for the leadership he has shown in putting this issue back on the agenda. Congress must now meet that leadership by having a courageous debate on the tough issues of immigration reform." "America's immigration policy needs a healthy dose of common sense," Daschle said. "This bipartisan legislation cuts through ideology and offers a straightforward way to secure American borders, strengthen our economy, and help immigrants, while protecting American workers. The Hagel-Daschle bill will keep out those who seek to harm Americans, while welcoming those who would strengthen our nation by pursuing the American dream for themselves and their families. Immigration is an issue that touches every aspect of our society, and I'm grateful that Senator Hagel and I have been able to address this vital challenge in a spirit of pragmatism and bipartisanship." THE HAGEL-DASCHLE BILL: Strengthens national security by identifying undocumented immigrants living inside our borders and tracking foreign workers who enter the U.S. for jobs; Provides funding to the Department of Homeland Security for increased border security, and criminal and background checks on visa applicants; Increases the number of visas available for those who have played by the rules and are waiting to be reunited with their U.S. citizen and legal resident family members; Improves economic stability by creating an enforceable program to bring needed foreign workers into the U.S. to take jobs that would otherwise go unfilled; Penalizes those who continue to break immigration laws. The Immigration Reform Act of 2004 Strengthening America’s National Security, Economy, and Families Sponsored by Senators Chuck Hagel and Tom Daschle Our bill is comprehensive, bipartisan immigration reform. It will: • Strengthen National Security by identifying undocumented immigrants living in the U.S., tracking foreign workers entering our borders, and increasing funds for border security; • Fix the Current System for immigrants who follow the law by reducing visa processing backlogs, reunifying families, and remedying current inequities under the law; and • Improve Economic Stability by establishing an enforceable program to bring needed foreign workers into the U.S. for jobs that would otherwise go unfilled. National Security: To track and identify immigrants living within and entering U.S. borders for work, the bill would require immigrants to undergo criminal and national security background checks prior to authorization. Participants in the bill’s worker programs would be required to maintain counterfeit-resistant authorization cards issued by the Department of Homeland Security. Finally, individuals who continue to break immigration laws would be barred from these programs. Fees associated with the bill would be designated for border security. Fixing the Current System: The legislation would reduce the existing backlog of applications for family-sponsored visas to ensure that immigrants will be allowed to re-unite with their U.S. citizen and legal resident family members. The bill provides designated funding to implement these changes. Economic Stability: To provide foreign workers for jobs that would otherwise go unfilled, the bill would admit a limited number of workers through a Willing Worker Program. Employers seeking to hire a foreign worker must first demonstrate that no qualified U.S. worker exists and that they will provide the same wage levels and working conditions as U.S. workers. Workers will be admitted for a limited period of time and will be allowed to change employers. Visa renewals would be available on a conditional basis. Qualified workers and their families would be provided an opportunity to adjust their immigration status. Opportunity to Become a Stakeholder: Finally, the legislation would provide an opportunity for undocumented workers and families currently living in the U.S. to become invested stakeholders in the country if they can demonstrate that they have met all of the following requirements: •
Passed national security and criminal background checks; Individuals who qualify for this program will submit an application to the Department of Homeland Security (DHS). Upon approval, DHS may adjust the immigration status of qualified applicants.
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