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Staff members of HIAS and Council have a large box of tissues close by. This is for the many clients who break down in tears when they learn that because the person they fell in love with is a lawful permanent resident (has a green card) and not a citizen, they cannot legalize for many years and face a forced return to their homeland at any time. Immigrants share their anguish at long family separations due to processing backlogs, and their despair over the dissolution of the family unit as one member is deported and the rest – including citizen children – make the difficult decision to stay in the U.S., the only home they know. Nonprofit immigration attorneys can only use the tools the law provides – and increasingly these tools seem outmoded and inadequate. Those on both sides of the immigration debate acknowledge the system is in shambles. Despite increased funds allocated for border enforcement, hundreds of thousands of unauthorized immigrants (about 400,000) enter each year to work, largely from Mexico and Central America. It is estimated there are now 12 million undocumented immigrants constituting 25 percent of the unskilled work force, 60 percent of whom have lived in the U.S. for over five years. Family-immigration quotas have not changed in over 15 years, creating a long line of those waiting to enter, while employment based categories have not kept pace with labor needs. Under the current system, there are only 5,000 permanent (as opposed to temporary) visas available for unskilled workers. The Senate’s proposed Secure Borders, Economic Opportunity and Immigration Reform Act (S. 1348), promoted by some as a “grand bargain,” appears to be in the process of being revived. The lesser-known House bill, the Security Through Regularized Immigration and Vibrant Economy (STRIVE) Act (HR 1645) was passed on March 22. Both the Senate and House bills call for enhanced border security, employer verification of status, and substantial background checks for all applicants. Both take on three major areas of immigration policy: providing a legalization program for the 12 million undocumented immigrants, adjusting the family and employment based immigration system and providing a temporary worker program. This article broadly addresses how two of these areas – the proposed legalization program and family/employment-based sponsorship – are treated by the Senate and House proposals and their affect on our client, immigrants of limited means. Legalization Both the Senate and the House proposals call for a legalization pathway for undocumented immigrants who clear criminal background and security checks, pay back taxes, demonstrate employment, learn English and pay fines and fees. Both require that the existing backlog of visas be handled before any of the 12 million can obtain permanent status, increased border security and employment verification. The Senate bill creates a “Z” visa, which enables a person to live and work in the United States and eventually earn lawful permanent status after certain “triggers” such as enhanced enforcement, are met and the “backlog” is cleared. The process means it is likely to take eight years for an applicant to achieve permanent residence, and the applicant would then wait an additional five years before they could apply for citizenship. The multi-step process could cost a family of four $21,000, paid at various intervals. The STRIVE Act also contains fines and hurdles. Under the STRIVE Act, an undocumented immigrant has conditional permanent residency for six years, must demonstrate a knowledge of English and citizenship and pay over $6,000 in fines and fees. The legalization program can’t begin until the Secretary of Homeland Security certifies that border protections and employment verification systems are in place. Both the Senate and House bills contain “touch-back conditions,” which require undocumented immigrants to leave the country at some point and re-enter. The Senate requires immigrants to return to their country of origin, while the House bill permits a person to process at a U.S. Embassy in any country. The heavy fines in the Senate bill make it likely that many low-income immigrants would be unable to take advantage of the program. However, the viability of the programs for undocumented immigrants – the overwhelming number of whom are low-wage workers – rests on several other significant details: How long will it take for trigger or certification to occur? If it takes years, what happens in the meantime? Who is counted in the backlog? Many undocumented immigrants are individuals like G.H, a domestic worker from Ghana, whose citizen brother petitioned for her five years ago. Due to the quota system, G.H. must wait an additional seven years before her case is completed. How is she counted? What is the capacity of U.S. consulates abroad – particularly the U.S. Embassy in Mexico – to handle the influx of applications of those who must return home? Will requirements to learn English and pay taxes be reasonable or so onerous so as to exclude otherwise eligible applicants? Despite significant obstacles, the STRIVE Act creates a framework to craft a sensible solution that will bring immigrants out from the shadows. This would not only mean an end to despair and suffering for these families, but increased security for all Americans as participants undergo strenuous background checks. The question is whether the Senate’s “grand bargain” can be harmonized with the House’s more straightforward version, rejecting the cries that any solution is amnesty. From Sponsorship to Merit Permanent immigration to the U.S. is largely based on family-sponsored immigration. Complicated quotas exist and limit the number of permanent visas available depending on whether the family member sponsoring their relative is a U.S. citizen or a lawful permanent resident and the relationship of the relative to the sponsoring family member. Citizens can sponsor parents, married and unmarried adult children, and siblings. In 2006, out of 1.266 million grants of permanent residency, 863,000, or 68 percent, were awarded based on family sponsorship; 12 percent obtained permanent status through employment and 17 percent of applicants were refugees or asylees. Another small percentage were able to get permanent residency due to the diversity lottery and specific legalization programs. The Senate bill would eliminate many forms of family sponsorship. Only spouses and minor children of U.S. citizens or permanent residents would be able to emigrate. All others seeking permanent immigration would have to accrue a certain number of points based on education, knowledge of English, age and employment skills. Under this scenario, G.H.’s brother could no longer apply for her, and it would be extremely difficult to sponsor parents, many of whom provide essential childcare and emotional support to immigrants who work multiple jobs. The Senate proposes to issue temporary visitor visas to parents to substitute for permanent ones. The idea of a point system is that it attracts “the best and the brightest,” who will integrate quickly into U.S. society. However, such a dramatic change may prove to have unintended economic consequences. Immigrants who receive permanent status based on employment must now have an employer sponsor who certifies there is no U.S. worker available for a specific position. A point system would permit someone without an offer of employment to obtain permanent status; these immigrants would have to seek employment and many would likely work in jobs that did not reflect their backgrounds. Canada uses such a point system; a Canadian immigration attorney cautions that an over-reliance on a point system without a specific job offer can lead to under- or unemployment. They have some professionals, like doctors, who perform low-skill occupations, such as driving taxis until they can find more appropriate work. Such immigrants arrive without family support, often a crucial ingredient in the ability of immigrants to succeed, providing on irreplaceable safety net. High-tech industries that have called for increased visas for skilled workers are also opposing the plan. The employers want to select their own employees and not chose from a pool of immigrants who may or may not have the specific skill set needed for their industry. The Senate proposal to abolish many family categories of immigration must be viewed as a trade-off for the legalization program. Proponents of the point system raise the specter of the influx of large numbers of low-skilled (likely to be Latino) workers due to the chain-migration pattern of family members. There are already strong deterrents in the current system to prevent the admission of immigrants who can’t support themselves or be supported by family members. Legal immigrants are denied most federally means tested public benefits. Family members must demonstrate they or another sponsor can support the intending immigrant at 125 percent of the poverty level. The STRIVE Act takes another approach. It modestly increases the number of employment-based visas if an employer can demonstrate a U.S. worker is not available, and speeds up the processing of family-sponsored immigration by removing immediate relatives from the existing quota system. The point system, while controversial, could be modified or exist side-by-side with other forms of sponsorship. The Migration Policy Institute, a nonpartisan think tank, supports a point system as one method, but not the central method, of broadening immigration policies. “If we need to have a point system in order to break the political deadlock we’re dealing with, so be it,” said Doris Meissner, senior fellow at the institute and former commissioner of the U.S. Immigration and Naturalization Service. “But the most important thing then would be to build in flexibility.” Urgent Need for Reform Nonprofit immigration attorneys are certainly not alone in recognizing the need for reform. In a June 10 op-ed piece in the Washington Post, Arizona Gov. Janet Napolitano implored Congress to act. Without reform, she argued, a “silent amnesty” of arbitrary enforcement leading to the break-up of families exists, without securing the border. “If we have no comprehensive immigration reform this year, and if we do not deal rigorously and openly with those already here, silent amnesty will continue. As a border-state governor who has dealt with immigration issues more than any other governor I know of, I am certain that continued inaction by Congress – silent amnesty – is the worst of all worlds.” JUDITH BERNSTEIN-BAKER is the ex-director of HIAS and Council Migration Service of Philadelphia.

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