By Stephen Yale-Loehr and Ted J. Chiappari**

The U.S. Senate is considering S. 1639, a comprehensive immigration reform bill. The Secure Borders, Economic Opportunity and Immigration Reform Act of 2007, as it is called, would be the biggest change in immigration policy in over 20 years. It would affect everyone in the United States--citizens and noncitizens alike--in some way.

The bill is controversial. The core group of about 12 senators who negotiated the "grand bargain," as they call it, are fending off attacks from all sides. The grand bargain suffered a grand collapse on June 7, when over 100 amendments threatened to drown the bill and the Senate failed to end debate on the legislation. At the time pundits predicted the bill was dead. But it now appears that the bill has been resurrected, with an agreement to limit the number of proposed amendments.

The Immigration Reform and Control Act of 1986 (IRCA) provides a useful historical analogy. Congress considered variations of that legislation for five years before IRCA was finally enacted. Even as late as two weeks before enactment, the bill appeared dead. Representative Dan Lungren described the 1986 immigration bill as "a corpse going to the morgue." But on the way, the California Republican said, "a toe began to twitch," and lawmakers resuscitated the body. Robert Pear, Immigration Bill: How "Corpse" Came Back to Life, New York Times, Oct. 13, 1986, at A16.

A summary of some of S. 1639’s key elements shows why the bill’s life expectancy is so hard to predict.

Green Card Selection System Changes

Section 502 of the Senate bill features a "points system" that would replace many of the current family- and employment-based green card categories. An individual could earn a maximum of 100 points: up to 47 points for favorable employment characteristics or work experience, up to 28 points for education, up to 15 points for knowledge of English and U.S. government, and up to 10 points for certain family relationships.

The bill does not set a "pass" mark to determine how many points would be required to obtain a green card under the new system. Instead, the Department of Homeland Security (DHS) would write regulations regarding the petition process.

S. 1639 states that immigrant visa petitions filed after May 15, 2007 under the current employment-based preference system would be rejected. People instead would have to file under the points system and hope that they would qualify. Given that the DHS would first have to write regulations to implement the statute, this would create a built-in freeze on employment-based immigration for months, if not years.

The Senate bill would bar the government from changing the points criteria for at least 14 years to allow "Z" legalization applicants (discussed below) a chance to obtain a green card under the bill’s points criteria. This would appear to negate the purpose of a points system: to give the government flexibility to modify selection criteria to fit changing economic conditions.

The bill would also eliminate the current labor certification system, by which employers can sponsor a particular worker for a green card as long as they can show that no U.S. workers are available. This and other aspects of the bill have prompted criticism from employers. For example, John Krumholtz, director of federal affairs at Microsoft, said that the Senate immigration bill was "worse than the status quo, and the status quo is a disaster." Carl Hulse, Kennedy Plea Was Last Gasp for Immigration Bill, N.Y. Times, June 9, 2007, at A1.

Section 503 of S. 1639 would eliminate many of the current family-sponsored (FS) green card categories, including the categories for unmarried and married adult children of U.S. citizens (FS-1 and FS-3), unmarried adult children of permanent residents (FS-2B), and brothers and sisters of U.S. citizens (FS-4). The FS-4 category currently has a backlog of over 20 years for people from some countries. The bill would also redefine immediate relatives to exclude parents of U.S. citizens. They instead would have their own immigrant visa category, with 40,000 green cards a year.

Senate Republicans insisted on these changes to reduce what they call "chain migration." The bill would allocate extra family-sponsored green cards each year until the current backlog is eliminated. The administration estimates that will take about eight years.

Legalization for the Undocumented

Title VI of S. 1639 would attempt to help the estimated 12 million noncitizens currently living in the United States in a variety of ways. First, it would give those living here illegally since before January 1, 2007 the opportunity to apply for a new "Z" nonimmigrant visa. Individuals would have to meet tough conditions to qualify for this visa, including paying hefty fines, passing a background check, and waiting until certain border security conditions discussed below are met. Z visas would be initially valid for four years, but could be renewed indefinitely. Z visa holders could live and work legally in the United States.

Second, once the backlogs in the current family-based green card categories are eliminated, Z visa holders could apply for a green card. They would have to pay more fines, learn English, and show that they are working. Heads of households would have to return to their home countries to obtain the green card. This is known as the "touchback" provision.

Z visa holders would qualify for a green card through a separate points system. The Senate bill gives Z green card applicants up to 25 points for agricultural work, up to 15 points for previous work in the United States, up to 5 points for owning a home in the United States, and up to 5 points for having medical insurance for the entire family. Some Z visa holders would be disqualified from obtaining a green card because of criminal bars under existing law and new bars created by S. 1639.

Employer Sanctions Changes

Title III of S. 1639 would overhaul our employer sanctions system. Currently every new employee must fill out an I-9 form to verify their identity and work eligibility. Employers must accept documents presented to them as long as the papers appear genuine. Given the high quality of many counterfeit documents, unauthorized workers can easily get hired. See generally Stanley Mailman & Stephen Yale-Loehr, Immigration Reform: Balancing Workers and Enforcement, N.Y.L.J., Aug. 22, 2005, at 3, reprinted in 10 Bender’s Immigr. Bull. 1403 (Sept. 15, 2007).

S. 1639 would toughen employer sanctions by requiring the DHS to create a new electronic employment verification system (EEVS) within 18 months to replace the current paper I-9 form. The fine for hiring an undocumented worker under the EEVS would start at $5,000. Repeat offenders could be fined up to $75,000 for each worker and could be sent to jail.

The proposed EEVS could be the sleeper issue in the immigration reform debate, since it would affect all American workers, not just noncitizens. For example, the bill would require the Social Security Administration (SSA) to issue fraud-resistant Social Security cards within two years after enactment. The bill also requires the SSA to consider adding biometric information to Social Security cards. This could effectively make Social Security cards a national ID card.

According to DHS Secretary Michael Chertoff, EEVS is "the single most important thing we need" in S. 1639. An electronic verification system, he said, would relieve pressure on the border by reducing the incentive for unauthorized immigrants to seek jobs in the United States. Carl Hulse & Jeff Zeleny, Bush Lobbies G.O.P. Senators for Stalled Immigration Bill, N.Y. Times, June 13, 2007, at A16.

New Y Temporary Worker Program

Title IV of the Senate bill would create a new temporary worker program that would allow up to 200,000 guest workers per year to enter on two-year Y visas that could be renewed twice, provided they returned to their home countries for a year between each stint. An amendment to the bill would sunset the new temporary worker program after five years. The current H-2A temporary visa category for agricultural workers and H-2B visa category for other seasonal workers would be merged into the new Y visa category. Y workers would not have any path to a green card, other than the point system outlined above. That fact worries many pro-immigrant advocates, who worry that the Y program will create a permanent underclass of temporary workers in our country.

H-1B Temporary Worker Changes

Title IV of the Senate bill would increase the H-1B cap for temporary professional workers from 65,000 to 115,000 for fiscal year 2008, and 180,000 annually after that. The bill would exempt from the annual H-1B cap a worker who has: (1) earned a master's or higher degree from an accredited U.S. university; or (2) been awarded a medical specialty certification based on post-doctoral training and experience in the United States.

While S. 1639 would increase H-1B numbers, it would impose several restrictions on the H-1B program. For example, it would eliminate "dual intent" for H-1B nonimmigrants. This would interfere with companies’ ability to recruit someone from a U.S. university and seek a green card for them while employing them on an H-1B visa. The Senate bill would also overregulate legitimate H-1B employers by subjecting all H-1B employers to burdensome rules currently applied only to "willful violators" and employers who have a large number of H-1B employees Finally, under an amendment sponsored by Sen. Bernie Sanders (I-VT), H-1B employers would have to pay a $5,000 "training" fee for each H-1B employee they sponsor. The monies raised from the fee would help educate and train U.S. workers.

Enforcement Enhancements

Enforcement is a key theme of S. 1639. Both the "Z" legalization and the "Y" temporary worker programs would not start until certain enforcement benchmarks are met. These "triggers" include adding 20,000 Border Patrol agents, installing 300 miles of vehicle barriers, 370 miles of fencing, 105 ground-based radar and camera towers along the southern land border, and four unmanned aerial vehicles and supporting systems, and creating the new electronic employment eligibility verification system discussed above. The administration estimates that these benchmarks could be accomplished within 18 months after enactment, but many are skeptical.

Conclusion

Despite the tentative agreement to revive S. 1639, it is unclear whether the Senate will pass comprehensive immigration reform this year. Every senator seems to oppose one or more of the bill’s provisions. Moreover, some of the proposed amendments remaining to be considered are controversial. Senator Kay Bailey Hutchison (R-TX) wants to require undocumented noncitizens to return to their home countries before they could obtain even temporary Z status. Senator Christopher Bond (R-MO) plans to introduce an amendment to bar Z nonimmigrants from obtaining green cards.

Even if the Senate passes comprehensive immigration reform, final enactment is not certain. The House must first consider and pass its own immigration reform bill, which could differ significantly from the Senate bill. For example, Rep. Zoe Lofgren (D-CA), who chairs the House immigration subcommittee, has stated that she does not favor a points system. Moreover, a group of House Republicans has just introduced a bill that takes a harder line against immigration. Called the Secure Borders FIRST Act, the bill focuses on improving security at the border, stiffening sanctions for employers who hire undocumented workers, and establishing a market-based temporary worker program that would allow individuals to work in the United States on 10-month renewable visas.

Even assuming the House can pass its own version of immigration reform, a House-Senate conference committee would have to reconcile the two competing versions. For all these reasons, comprehensive immigration reform in 2007 remains just a twitching toe.

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** This article originally appeared in the June 25, 2007 issue of the New York Law Journal. Copyright © 2007 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

* Stephen Yale-Loehr is co-author of Immigration Law and Procedure, published by LexisNexis Matthew Bender. He also is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration law at Cornell University Law School. Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City.