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By
Josh Bernstein
Director of Federal Policy
As members of Congress left Washington, DC, for a two-week
spring recess, the fate of pending anti-immigrant legislation remained
uncertain. The flagship proposal is the Secure America through
Verification and Enforcement (SAVE) Act, HR 4088, sponsored by Rep.
Heath Shuler (D-NC) and cosponsored by Rep. Tom Tancredo (D-CO) and 144
other members, including 49 Democrats (the list can be found
here). The SAVE Act
is the subject of an aggressive procedural maneuver by House Republican
leaders and of complicated negotiations among House Democrats trying to
satisfy various interests by packaging a number of immigration measures
together into an echo of the comprehensive immigration reform bill that
failed to pass the Senate last year.
SAVE Act
Provisions
The SAVE Act would provide some of the “enforcement” agenda from
last year’s defeated Senate bill, but without any of the provisions
intended to resolve the status of undocumented immigrants or to reform
the legal immigration system. We put “enforcement” within quotation
marks because despite the sound and fury, the expense, and the harm
these measures would do to many immigrants’ and U.S. citizens’ quality
of life, they would likely have little impact on the number of
unauthorized immigrants who come to or decide to remain in the U.S.
Among other things, the SAVE Act would:
- Expand the problem-plagued Basic Pilot
electronic employment eligibility verification system (recently
rebranded “E-Verify” by the U.S. Dept. of Homeland Security, or DHS)
into a nationwide mandatory program for all employers and workers in
the economy.
- Convert the Social Security Administration (SSA)
“no-match” letter program into a blunt immigration enforcement tool
by requiring employers to fire workers with mismatched information
unless the workers can fix the problem within 10 days (70 percent of
errors in SSA’s database pertain to U.S. citizens).
- Require all individuals who work for more than
one employer at the same time to provide proof of employment to SSA
before their Social Security account can be credited.
- Override current confidentiality of tax and
Social Security information by dumping all reported anomalies such
as multiple use of a Social Security number (SSN) and mismatches
into a DHS database while providing few if any protections against
misuse of such information.
- Continue the exponential but ineffective
increase in the number of Border Patrol agents that we have seen in
recent years without providing for any balancing protections needed
to hold the government accountable for reported abusive practices.
- Continue to pour even more money into
infrastructure and technological gadgetry along the southern border
without addressing the problems of mismanagement that have tainted
the massive contracts that have been let in recent years.
- Expand the scope of activity that can be
prosecuted as “alien smuggling” and narrow the protections from such
prosecution enjoyed by religious workers.
- Provide incentives for more state and local
police to enforce immigration laws. (Police nationwide have been
reluctant to embrace such enforcement because it detracts from their
core mission of preventing crime and catching criminals.)
- Continue the recent unprecedented increase in
immigration incarceration capacity from 27,500 to 35,500 beds while
providing for none of the reforms that human rights advocates have
urged in response to well-documented abuses in current detention
facilities.
On March 11, at the behest of the Republican leadership, Rep.
Thelma Drake (R-VA) filed a discharge petition on the SAVE Act. A
discharge petition is a mechanism whereby a majority of the House of
Representatives can wrest a measure out of the normal committee process
over the objections of the leadership and bring it directly and
immediately to the floor. It is generally considered an act of
rebellion for a member of the majority party to sign a discharge
petition, since doing so greatly undermines the power of the majority to
govern the House effectively, and not only on the issue that the
petition addresses. As of the spring recess, the SAVE Act discharge
petition had secured 181 out of the 218 signatures it would need to take
effect, including 9 Democrats, a large number but fewer than some had
predicted. (The current list of signers can be found
here.)
The petitioners will be able to force the issue if they are able to
gather the required number of signatures any time until six days before
the end of the session.
Johnson Bill Introduced
Another significant “enforcement” bill was introduced on Feb.
28, 2008, by Reps. Sam Johnson (R-TX), Kevin Brady (R-TX), and Paul Ryan
(R-WI). Like the Shuler bill, the New Employee Verification Act of 2008
(HR 5515) would create a mandatory electronic employment eligibility
verification system that would require all 7 million employers in the
U.S. to query a federal government database during the hiring process of
each and every worker they employ. The Johnson bill has been framed as
an alternative to the electronic eligibility verification system (EEVS)
in the SAVE Act because it addresses some of the inadequacies of the
Basic Pilot/E-Verify employment eligibility verification program upon
which the SAVE Act is based. But it fails to address the most
fundamental problems with the SAVE Act: it would rely on the same
seriously flawed databases and would add the same strains to our economy
because it does not provide a path to legal status for the over 7
million undocumented workers in the U.S. Under the Johnson bill, the
EEVS would be administered by SSA instead of by DHS, an approach that
would create additional problems because SSA, in carrying out its core
mission, is already overburdened, and the new responsibilities would
likely result in even more Social Security–related errors and delays.
The Johnson Bill also contains provisions that would weaken the
Social Security system by rupturing the principle that currently allows
beneficiaries to count on receiving benefits based on their work and the
contributions they have made to the system. Under the Johnson bill, a
U.S. citizen or lawful resident could have retirement or disability
benefits reduced or even eliminated because he or she earlier worked for
a period without authorization. The bill would also take away up to the
entire first year of credit earned by newly arrived lawful immigrants
even if they never worked without authorization. These changes are not
only unfair: If U.S. citizens are unable to rely on their own Social
Security earnings in old age, they will be forced to accept assistance
from state, local, or charitable sources, unnecessarily straining
community resources.
Negotiations
Employment eligibility verification and the other provisions of
the Shuler bill are part of the mix of legislation that House Democrats
have reportedly been negotiating for months, according to published
accounts. The details of what such a package would include have not
been made public, and the rumors keep shifting; but one of the constants
is extension of the “recapture” provisions that allow H2-B workers who
have gotten visas in the past to return without being counted against
the 66,000 cap on such visas.
H2-B visas provide temporary admission to the U.S. for
unskilled workers coming to work in seasonal or short-term
nonagricultural jobs. The recapture provisions resulted in nearly twice
the number of H2-B visas being issued in 2006 than otherwise would have
been permissible, and businesses that have come to depend on the
program, such as resorts and landscaping companies, are desperate for
the extension. On the other hand, the program has been abused by
bad-apple employers to break organizing efforts and even to abet human
trafficking, and so labor unions and worker advocates have insisted that
workplace enforcement provisions must accompany any H2-B extension.
Rep. Bart Stupak (D-MI) introduced HR 1842, legislation providing an
extension without any workplace enforcement provisions, in April of last
year, and it currently has 143 cosponsors.
Another constant of the negotiations has been the effort by
members of the Congressional Hispanic Caucus (CHC) and others to include
modest or temporary provisions to “do something about the
undocumented.” According to published reports, members have discussed
the idea of a temporary worker visa that undocumented workers and their
families could obtain that would not provide a path to citizenship and
that would expire after a certain number of years. Once word of such
negotiations became public, anti-immigrant groups sent out mailings
complaining about efforts to pass a “five-year amnesty” and some
pro-immigrant groups also expressed concern about the difficulties of
living under such a visa, with the threat of deportation looming after
the time expires. It is notable that to date the DREAM Act, which would
provide a six-year path to legal status for individuals brought to the
U.S. years ago as children, has not apparently been a subject of the
negotiations, although DREAM Act students likely would be included in
any temporary visa program available to undocumented workers.
The negotiations over these and other provisions continue, but
it has proven very difficult for the negotiators to put a package
together that satisfies enough members to have a reasonable chance of
passing the House. Further complicating the negotiations is the current
climate of fear among members of Congress, who continue to run for cover
against the anti-immigrant noise machine despite the mounting evidence
that the anti-immigrant message does not deliver electoral victories. In such a
climate, advocates fear that any negotiated package could have positive
elements taken out — and punitive ones added in — as the process
unfolds. And even if a bill does pass the House, it faces an uncertain
fate in the Senate, as we saw last year.
The bottom line: Although unexpected opportunities may develop
this year, most pro-immigrant advocates believe that now is a good time
for legislative caution and vigilance against proposals that could do
lasting damage, and for organizing and building the base for real reform
in the next Congress with a new president.
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