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A Review of Immigration Proposals in Congress

by Justin Akers Chacon Wednesday, May. 10, 2006 at 4:03 PM

A Choice Between Bad and Worse: Why We Can't Compromise on Immigration Legislation

International Socialist Review Issue 47,

May–June 2006



A choice between bad and worse

The Sensenbrenner-King bill (HR4437), “The Border Protection, Anti-Terrorism, and Illegal Immigration Control Act of 2005”1

This bill proposes to:

• Make the presence of undocumented immigrants in the U.S. a felony;

• Make conviction of unlawful presence in the U.S. an aggravated felony, which could make millions of undocumented immigrants permanently ineligible for any legalization program;

• Expand the definition of criminal “alien smuggling” in such a way that anyone who assists an undocumented person to live or remain in the U.S. could be charged with a criminal offense;

• Increase penalties for employers that hire undocumented workers up to ,000 and up to five years of jail time;

• Require the construction of a 700-mile wall along the U.S.-Mexico border.

The McCain-Kennedy bill (S.1033/HR 2330) “Secure America and Orderly Immigration Act of 2005”2

Republican co-sponsor Senator John McCain (R-Ariz.) has summarized the bill as being designed to protect “Americans from immigrants,” stating, “Homeland security is our nation’s number-one priority. This legislation includes a number of provisions that together will make our nation more secure.”

They include:

Increased enforcement. McCain-Kennedy calls for even stricter border enforcement, including an increase in border technology to track migrants; a Border Security Advisory Committee to collaborate with Bush’s Department of Homeland Security; expanded border policing on the Mexican side of the border; and increased spending for the Border Patrol.

Punishing the undocumented. The bill increases employer sanctions, which punish companies that hire undocumented workers. It phases in a database to keep records of migrant workers, which will allow for the tracking of undocumented workers.

It empowers the Department of Labor to conduct “random audits” to ensure compliance with labor law, which could mean raids on worksites that employ undocumented workers. It also requires the expansion of “aerial surveillance technologies”—i.e., more planes, helicopters, and unmanned drones to hunt for migrant crossers.

A guest-worker program. Employers will be empowered to use a guest-worker program to push down the wages of all workers—which is what led to the degradation of agricultural labor during the Bracero Program’s existence. Workers will only have access to health care in case of emergency, so regular health maintenance and preventative care will not be provided.

The twelve million undocumented workers in the U.S. can only apply for temporary work visas if they pay an exorbitant fee of at least ,000 (application fee, plus fines), prove they are “not a security threat,” and show they paid taxes while in the U.S. without authorization. They can only remain in the U.S. if they can prove that they have long-term work and have learned English. This will discourage most undocumented workers from participating in the program, perpetuating their segregated status.

A limited path to residence. The bill allows guest workers to remain in the country for a maximum of six years, after which they will have to return to their country of origin, or “be in the pipeline for a green card.” This is tricky language since it doesn’t explain how difficult it actually is to get a green card.

The bill will raise the number of yearly employment visas available to guest-worker applicants to 290,000 a year (from the current 140,000). But this language is also deceptive since under current law, such visas are divided on a per-country basis (currently 7 percent). This means that under the legislation, Mexican workers would only be eligible for a maximum of 28,000 visas a year.

Furthermore, visas are distributed according to “types of employment.” Unskilled workers, for instance, are only eligible for about 30 percent of these visas according to the bill, although leftovers from other categories could be added to this total.

So the majority of the 400,000 annual guest workers and the twelve million undocumented currently in the U.S. will be bottlenecked out, or priced out of the process. The bill also excludes those undocumented workers who have been in the country for less than a year, and those who have not been consistently employed while in the United States.

Furthermore, there is an average four- to seven-year waiting period for the green card process. An employer can sponsor a worker for a green card, or a worker can apply themselves only after four successive years of work, and even then, there is no guarantee that they will receive one.

There is no reference in the proposal to change the waiting period—only that if the four years pass without a green card, “delays are recaptured for future allotments.” In other words, the status of the vast majority of workers will remain uncertain for indefinite periods. The bill allows for indefinite one-year extensions until the case comes before a court.

If the applicant loses a job or leaves the country, they could lose their opportunity. Since names and information will be on file, the bill will likely facilitate the process of regularized deportation of those not “in the pipeline,” and likely increase funding for such a process.

Families will have difficulty uniting. Only after getting permanent residence can guest workers apply to bring their families into the country (if they are already here, they get status along with the undocumented applicant). Since only a minority of workers will likely get green cards, this will exclude most from reuniting with their families, and increase the pressure on them to return.

Currently, the waiting time for bringing immediate family members into the country through this process is four to seven years, and only 27,000 slots are allotted to Mexicans (although the bill makes reference to raising this cap another 19 percent). Furthermore, workers must have an income at least equal to the federal poverty line to qualify. In other words, poorer workers will not be reunited with their families. McCain-Kennedy won’t change the deadly pattern of migration and segregation.

The excluded will still cross. The McCain-Kennedy bill offers only 400,000 slots for applicants (although this can be raised an extra 20 percent), far less than current levels of migration, as well as the increase of low-wage jobs in immigrant-receiving states. This means that the majority of migrants will still cross through deserts and mountains. Family members eager to reunite with loved ones will bypass the long waits and risk crossing through the rough terrain. With increased border militarization, this will mean more deaths.

The undocumented will remain in the shadows. The bill would require undocumented workers to register with the state, pay huge fines, and run the risk of being deported. It reinforces the status quo—the segregation of undocumented workers—which will continue the cycle of racism and exploitation.

Some of the major provisions of the Hagel-Martinez compromise amendment3

• Undocumented workers who have been in the country for at least five years could receive temporary work visas only after meeting several conditions, including payment of a ,000 fine and any back taxes, clearing a background check, and learning English. After six more years, they could apply for permanent residency without leaving the United States. They could apply for citizenship only after five years.

• If an undocumented immigrant is in the country for between two and five years, they could obtain a temporary work visa after reporting to a border point of entry, which means they would have to leave the country before reapplying.

• Officials said it could take as long as thirteen to fourteen years for immigrants to gain citizenship. In part, that stems from an annual limit of 450,000 on green cards, which confer legal permanent residency and are a precursor to citizenship status. In other words, millions of workers would remain second-class citizens for many years, since as non-citizens they will not be afforded basic democratic rights.

• Workers in the United States for less than two years would be required to leave the country and apply for re-entry alongside anyone else seeking to emigrate. In other words, as much as 30 percent of existing undocumented workers in the U.S. are excluded altogether.

• Separately, the legislation provides a new program for 1.5 million temporary agriculture industry workers over five years.

• It also incorporates further criminalization: It increases employer sanctions, and it calls for a “virtual fence” consisting of surveillance cameras, sensors, and other monitoring equipment to further militarize the existing border walls that push migration into deadly regions.

While the most immediate task at hand is to send HR4437 to defeat, it is clear that neither of the other bills embrace the interests of the millions who have poured out into the streets.


1 For a detailed analysis of the Bill, see the website for the National Council of La Raza at

2 Quoted in Justin Akers Chacón, “Why you should oppose the McCain-Kennedy bill,” Socialist Worker, March 31, 2005.

3 David Epso, “Congress unites for illegal-immigrant deal,” Associated Press, April 6. 2006.

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