LIRS Analysis of Senate’s Immigration Reform Bill
LIRS welcomed the Senate passage of the bipartisan Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) on June 27. The broad support for the bill, which passed on a 68-32 vote, demonstrates the urgent need for reform. LIRS has analyzed the bill from the perspective of each of our five principles for immigration reform.
The United States should acknowledge our history as a nation of immigrants by creating an immigration process that honors migrants’ contributions and commitment to our country. As people called to welcome the newcomer, LIRS supports a comprehensive solution to the challenge of the United States’ broken immigration system.
LIRS advocates for reform that will:
- Provide an earned pathway to lawful permanent residency and eventual citizenship for undocumented immigrants and their families.
- Ensure the humane and just enforcement of U.S. immigration laws, specifically by reducing the use of immigration detention and expanding the use of community support programs for immigrants who do not need to be detained.
- Protect families from separation and ensure an adequate supply of visas for families seeking to reunite.
- Provide adequate resources and protections to ensure the successful integration of refugees, asylees, survivors of torture and trafficking, unaccompanied minors, and other vulnerable migrants.
- Ensure the protection of U.S. citizen and migrant workers.
For additional information please contact Brittney Nystrom, LIRS director for advocacy (firstname.lastname@example.org | 202-626-7943).
Creation of a Roadmap to Citizenship for Undocumented Immigrants
Comprehensive immigration reform that allows undocumented immigrants to fully contribute to our families and communities honors the United States’ history as a nation of immigrants and the biblical call to welcome the stranger. Lutheran Immigration and Refugee Service (LIRS) therefore applauds the Senate for passing S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act on June 27, 2013.
The bipartisan bill, as passed by a vote of 68-32, establishes a roadmap to citizenship for undocumented immigrants and welcomes new Americans through the following provisions:
- Creation of a new “registered provisional immigrant” (RPI) status for eligible undocumented immigrants. People granted RPI status would be authorized to work and travel outside the United States. It would be possible to renew RPI status after six years. After 10 years, those in RPI status could seek to become lawful permanent residents (LPRs). Three years later, they would be eligible to apply for U.S. citizenship.
- RPI status would require applicants to have been present in the United States since December 31, 2011. People in removal proceedings and those with deportation orders would be able to apply.
- Immigrants granted RPI status would be allowed to petition for RPI status for their spouse and children, provided these family members were present in the United States before December 30, 2012 and were present on the date their relative was granted RPI status.
- Young undocumented immigrants known as “DREAMers” who were brought to the United States as children and who would benefit from the DREAM Act would have an expedited path to citizenship, as would certain undocumented agricultural workers. DREAMers who spend 5 years in RPI status would be eligible to apply for LPR status. Upon receiving LPR status, DREAMers could immediately apply for U.S. citizenship.
- Greater numbers of vulnerable migrants could attain U.S. citizenship. The number of U visas granted to migrant survivors of violence who assist in law enforcement efforts would be increased. People granted temporary protected status (TPS) or who have been permitted to remain in the United States through deferred enforced departure (DED) could apply for RPI status or seek LPR status through the new merit-based immigration system.
- Coordinated federal efforts would be made to strengthen integration of new Americans into communities and to assist those who aspire to become U.S. citizens.
LIRS is concerned that criteria to achieve and maintain lawful status may pose significant challenges. For example, those on the pathway to citizenship would be excluded from federal public benefit programs including food stamps and affordable health care. Requirements must not outweigh an otherwise accessible and fair legalization process. Below are provisions of concern to LIRS:
- Financial obligations for aspiring citizens would include processing fees, back taxes and taxes due while in RPI status, and $2,000 in fines over the course of the 13-year period.
- People with certain criminal convictions, including for some minor offenses and for crimes that occurred many years ago, would be ineligible for RPI status.
- The RPI status application period would open only after the Department of Homeland Security notifies Congress of the implementation of plans to increase border security.
- RPI status holders (except for DREAMers and certain agricultural workers) may not apply for LPR status until strict border security, workforce verification, and visa tracking benchmarks are met and there has been a significant increase in Customs and Border Protection personnel and technologies.
Positive Changes to Detention and Access to Justice
Our immigration laws must be humanely and justly enforced. Lutheran Immigration and Refugee Service (LIRS) has long urged Congress to achieve this goal by reducing America’s use of immigration detention, which often involves arbitrary, prolonged loss of liberty and is a barrier to full, fair, and just court proceedings. We also advocate expanding community-based alternatives to detention programs that provide legal, housing, medical, mental health, and other services as needed.
LIRS therefore applauds the Senate for passing S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act on June 27, 2013. The bipartisan bill, passed by a vote of 68-32, contains the following positive changes for migrants held in immigration detention, the operations of detention facilities, and the use of alternatives to detention:
- The rights of individuals in detention would be protected by the creation of time limitations governing the filing of charging documents, decisions about whether or not detention is necessary, and bond hearings before an immigration judge. People in detention for over 90 days would benefit from periodic reviews of their case.
- Compliance with the most recent standards and policies set by the Department of Homeland Security (DHS) would be routinely monitored and contractually required. Deficiencies would trigger financial penalties or discontinuation of the use of a facility by DHS. Evaluations and inspections of facilities would be made public. Oversight would be aided by a requirement that DHS seek non-governmental organizations’ input on specific detention facilities.
- Oversight, transparency and accountability would be improved by placing two agencies, Immigration and Customs Enforcement and Customs and Border Protection, under the jurisdiction of the DHS Ombudsman’s office. The Ombudsman’s office has improved the efficiency and accountability of existing DHS functions already under its jurisdiction.
- Alternatives to detention programs, which the LIRS study Unlocking Liberty found to be efficient, humane, and cost-effective, would be available nationwide and to more people. Case management and individualized assessment of whether and how someone should be detained would be made part of alternatives to detention, and community-based organizations would be clearly authorized to provide these alternatives.
- Solitary confinement would be defined and limited to brief periods under the least restrictive means possible, excluding children and mentally ill individuals from the possibility of being placed in solitary confinement.
- Agency accountability and transparency would be improved through the coordination of databases between ICE, EOIR, CBP, and USCIS and mandatory reports on data related to the use of detention and removal proceedings.
- Sensitive community locations such as hospitals, schools, churches, shelters, would be protected from immigration enforcement actions.
- DHS would be required to abide by humanitarian protections when carrying out deportation proceedings, such as limiting certain nighttime deportations, mandating the return of migrants’ belongings, and reporting on the consequences of certain deportation programs.
LIRS also commends S.744’s safeguards for migrants, refugees and children facing deportation:
- The staff and judges assigned to immigration courts would be expanded to address existing backlogs and insufficient courtroom resources. Judges and staff would receive improved training. All detained people would receive legal orientation that explains their legal rights and decreases length of detention by preparing detainees to represent themselves.
- Immigration judges would have to oversee a person’s consent to be deported from the United States to ensure that such consent is truly voluntary and informed.
- The Department of Justice would appoint and pay for lawyers on behalf of unaccompanied children, people with mental disabilities, and particularly vulnerable individuals in deportation hearings. Providing lawyers would improve fairness and efficiency.
- DHS would establish training for CBP personnel to improve screening of unaccompanied children for cases of child trafficking.
- DHS would establish new standards that ensure children in the custody of CBP have access to adequate mental and medical health care, clothing, hygiene products, and phone calls to family members.
- All unaccompanied children would be transported to ORR within 72 hours of their initial detention and immediately informed of their rights, and child welfare officials would be made available to screen for trafficking victims at certain ports of entry, along with other protections for unaccompanied children.
- Parents apprehended by DHS would be allowed to attend family court proceedings, make family phone calls, and protect their parental rights while detained.
While there are many positive changes in S. 744, the bill falls short as follows:
- Unprecedented increases in U.S. Border Patrol personnel, infrastructure and surveillance technology along the United States-Mexico border without corresponding increases in oversight and accountability measures would likely lead to greater civil and human rights abuses of migrants and U.S. citizens living near or crossing the border and would cost tens of billions of dollars.
Positive and Negative Changes to Family-Based Immigration
Family unity is a core American value, and for decades Lutheran Immigration and Refugee Service (LIRS) has advocated for an immigration system that reunites migrant and refugee families instead of dividing them. Therefore, LIRS has a mixed reaction to the family provisions included in S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act.
The bipartisan bill, passed by the Senate on June 27 with a vote of 68-32, makes the following improvements to our family-based immigration system:
- Backlogged visa applications filed by U.S. citizens and lawful permanent residents (also known as “LPRs” or “green card holders”) on behalf of their siblings and children would be processed within 10 years.
- Future applicants may benefit from reduced wait times as per-country caps on family immigration would rise and unused visas would be allowed to be used in subsequent years.
- Spouses and minor children of LPRs would be reclassified as “immediate relatives.” This change would exempt these dependents from annual visa caps and speed the reunification of these families.
- The immigration status of widows and orphans would be preserved after the death of their petitioning relative. Immigration processes for fiancés, fiancées, and stepchildren would be improved to increase family unity.
- Parents immigrating to join their U.S. citizen child in the United States would be permitted to have their minor children (the petitioning citizen’s sibling(s)) accompany them.
- An immigration judge would have discretion to consider the impact of an immigrant’s deportation, which is often devastating, on his or her U.S. citizen or LPR parents, spouse, or children.
- New “V” visas would be granted to certain family members with approved family-based visas, allowing them to unite with loved ones in the United States while awaiting a green card.
Unfortunately, S.744 falls short as follows:
- U.S. citizens would no longer be able to petition for immigrant visas for their brothers, sisters, and married children over the age of 31, ending the opportunity for these family members to provide vital family structure and support and contribute to our nation.
- A new merit-based immigration system would award points based on some family relationships, yet would fail to sufficiently substitute for lost immigration opportunities for siblings and some married children of U.S. citizens. Some answers to how the new system is working will emerge after a required study is completed within seven years of enactment, examining how these relatives fare in the new merit-based system.
Positive Changes for Refugees, Asylum Seekers, and Stateless Individuals
As Congress considers comprehensive immigration reform, our proud history of protecting and welcoming victims of persecution and torture is at stake. Lutheran Immigration and Refugee Service (LIRS) has long sought to ensure those fleeing persecution find protection in the United States, unite refugee families, and improve opportunities for vulnerable migrants to be welcomed into our communities and our nation.
LIRS therefore applauds the Senate for passing S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act on June 27, 2013. The bipartisan bill, passed by a vote of 68-32, would create more efficient and humane processes to protect and welcome refugees, asylum seekers, and stateless people by:
- Eliminating the one-year filing deadline. Currently, persecuted people are barred from receiving asylum if their application is filed more than a year after they arrive in the United States. S. 744 would eliminate this deadline and allow asylum seekers to reopen their cases if they were previously denied solely because of late application.
- Improving efficiency, justice, and transparency by allowing refugee applicants abroad to have legal representation during the application process. The bill also requires that applicants who are denied refugee status receive a written explanation for their rejection.
- Enhancing refugee family unity. The bill rectifies gaps in current law that can permanently separate refugee families. It allows children of a refugee or asylee’s spouse or child to accompany or join them in the United States. Additionally, surviving widows and orphans of principal applicants could continue the visa process after the applicant’s death.
- Allowing the President to designate certain groups of refugees to be resettled to the United States. This would bolster protection and efficiency. The President could designate certain groups as having a well-founded fear of persecution, instead of requiring each individual within that group to meet this standard. This would solidify existing laws that protect certain religious minorities, including those from the former Soviet Union and Iran.
- Authorizing trained, expert asylum officers to grant claims of asylum who can show credible reasons for fearing persecution. This would replace the current practice of referring arriving asylum seekers to immigration courts for what can be lengthy and costly adversarial proceedings that often retraumatize those seeking protection. Additionally, work authorization would be streamlined for asylum seekers whose petitions are pending for longer than 180 days, ensuring they are able to support themselves through the adjudication process.
- Extending and improving the Special Immigrant Visa program for Iraqis and Afghanis who assisted U.S. military efforts abroad. The bill improves processing and efficiency for visa applicants and allows unused visas to be allocated through the end of fiscal year 2018.
- Protecting stateless persons living in the United States. The bill defines the term “stateless person” for the first time in U.S. law and allows certain people who are stateless and living in the United States to apply for conditional residency and eventual citizenship.
- Improving access to citizenship. The bill would provide elderly refugees with greater access to naturalization, ensuring more full and meaningful integration into American civic life while respecting their vulnerabilities. The bill also strengthens federal efforts to help refugees integrate into American communities, including assistance to refugees aspiring to naturalize.
While there are many positive changes in S. 744, the bill falls short as follows:
- Refugees and asylees who return to their country of origin without demonstrating good cause to do so will have their status revoked.
Positive Changes for U.S. Citizen and Migrant Workers
As Congress builds an immigration system to ensure the supply of labor meets national demands, future immigration laws must recognize the contributions migrants make to our communities and improve protections for the safety, dignity, and fair treatment of every worker. Lutheran Immigration and Refugee Service (LIRS) has long advocated for ample protections in our immigration system for U.S. citizen and migrant workers.
LIRS therefore applauds the Senate for passing S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act on June 27, 2013. The bipartisan bill, passed by a vote of 68-32, contains the following improvements for workers in the United States:
- Undocumented agricultural workers and their dependents would be eligible for an expedited roadmap to citizenship with a “blue card.” Blue card holders who continue to work in agriculture would be eligible to become lawful permanent residents in 5-8 years, at which point they could work in any occupation.
- Victims of serious workplace abuse, exploitation, or retaliation would be eligible for U visas, which provide immigration status to migrant survivors of crime who assist law enforcement.
- Employers would be prohibited from withholding back pay or certain other damages because of a worker’s immigration status. Employers required to maintain employment records would have to provide such records to employees upon request.
- Workers employed by registered employers in low-tech fields facing labor shortages would be eligible for a “W visa”. This program would be subject to an annual cap determined by the newly-created Bureau of Immigrant and Labor Market Research. The W visa permits workers to change to another registered job for another registered employer, allows workers’ spouses and children to join them and lawfully work, and grants W visa holders the ability to self-petition for lawful permanent residency through a new merit-based immigration system.
- Agricultural guest-workers would be eligible for temporary work visas subject to caps designed to protect U.S. workers. These guest-workers would receive worker’s compensation, employer-provided housing, fair wages, and the ability to transfer to certain other agricultural employers.
S. 744 mandates that employers begin using a federal government verification system to confirm new hires are authorized to work. S. 744 includes the following protections for workers screened under this system:
- U.S. citizens and work-authorized immigrants may file an administrative appeal to contest a rejection or “non-confirmation” by the system. If necessary, individuals are able to appeal this decision through the courts. Workers are compensated with any lost wages, reasonable costs, and attorneys’ fees if non-confirmation was due to employer or government error.
- Establishes regular assessments of the system, complaint and investigation mechanisms, and privacy and information security protections. Expands anti-discriminatory provisions in the current immigration laws to include discriminatory or unlawful use of electronic verification.