June 3, 2013

On April 17, 2013, a group of eight US senators introduced a bill to reform the United States immigration system. The proposed Senate Border Security, Economic Opportunity and Immigration Modernization Act (S.744) would make significant changes to the complex array of laws that govern immigration in the United States. Some of these changes would address longstanding and serious problems in the immigration system, which, as Human Rights Watch has documented extensively, regularly result in violations of the rights of immigrants in the US. At the same time, some aspects of the bill continue to threaten the rights of immigrants to family unity and due process.

The following Questions and Answers about the Senate bill focus on four key areas in which Human Rights Watch has called for immigration reform

  • Respecting and protecting families.
  • Protecting immigrants from workplace violations.
  • Establishing a path to legalization that is clear and fair, respects families, and considers contributions of long-time residents.
  • Creating immigration law enforcement that ensures due process rights for all, focuses on genuine threats to national security, and does not expose immigrants to abuse and crime.

The Senate bill was approved by the Judiciary Committee on May 21, 2013, and is currently pending debate before the full Senate. If the Senate approves the bill, it would go to the House of Representatives for debate and a possible vote, though the House could choose to take up its own bill and seek a compromise between both versions. Any compromise would have to be approved by both legislative chambers and then be signed by the President to become law.

--------

I. Respecting and protecting families

If it becomes law, how will the Senate immigration bill affect families that include unauthorized immigrants?

Will this bill help unauthorized immigrants who have already been deported reunite with their US families?

Which unauthorized immigrants are not protected under the bill?

How would this bill affect a non-citizen who may want to join family in the US in the future?

II. Protecting immigrants from workplace violations

Unauthorized immigrants who are victims of workplace crimes and rules violations, or are potential whistleblowers, are often reluctant to come forward for fear of reprisal or deportation. Would this bill do anything to protect them?

Would the bill protect “guest workers”?

III. Setting legalization rules that are clear and fair, respect families, and consider contributions of long-time residents

Are there any human rights concerns about how the bill defines who qualifies for legalization and who doesn’t?

Does the bill raise human rights concerns for people in Registered Provisional Immigrant status?

How would this bill affect unauthorized immigrants brought to the US as children (“DREAMers”) who now want to legally study or work in the US?

IV. Creating immigration law enforcement that guarantees due process rights for all, focuses on genuine threats to national security, and does not expose immigrants to abuse and crime

How would this bill change the way immigrants are detained or imprisoned?

Are concerns raised by the bill’s proposal to increase spending on rapid prosecutions of unauthorized immigrants captured along certain parts of the southern border?

Does this bill include measures to prevent alleged use of excessive force by border agents and immigration law enforcement agents?

Allegations of racial profiling for years have dogged federal officers and local police that cooperate in immigration law enforcement. Does this bill address racial profiling?

Victims of crime and potential witnesses are often reluctant to come forward for fear of reprisal or deportation. Would this bill do anything to protect unauthorized immigrants in these positions?

Would this bill change prosecutions of unauthorized immigrants who are particularly vulnerable, such as unaccompanied minors or people with mental disabilities?

Would this bill change the difficult process many unauthorized immigrants must go through to obtain asylum?

--------

I. Respecting and protecting families

If it becomes law, how will the Senate immigration bill affect families that include unauthorized immigrants?

A:   Many of the approximately 11 million unauthorized immigrants in the United States have US citizen family members who every day face separation from their unauthorized immigrant relatives.

The Senate bill would begin to create a path to legal status for many of these unauthorized immigrants, as Human Rights Watch has long called for. It creates the new immigration status of Registered Provisional Immigrant (RPI), conceived as the first step towards legal status and ultimately US citizenship.

Unauthorized immigrants who were physically present in the United States before December 31, 2011 and have not left the country since then are, within certain limits, eligible for RPI status. This means that potentially millions of unauthorized immigrants who under current law are at risk of deportation will be allowed to remain in the US. This is consistent with Human Rights Watch’s longstanding call for US law to respect the right of immigrants to family unity.

Under the bill, in the future some unauthorized immigrants who are put into deportation proceedings will also have their family ties considered more seriously than they are now. For years, US immigration judges weighing whether to order an immigrant deported have largely been barred from considering any family ties that person may have in the US. The Senate bill would allow them to do just that, with the likely result that many immigrants who before would have been deported primarily for their unauthorized status will be allowed to remain with families in the United States.[1]

Current law does allow some unauthorized immigrants to avoid deportation by showing that a separation would result in “extreme hardship” to their US citizen or legal-resident families. The Senate bill would allow judges to waive an immigrant’s removal in light of the “hardship” (no longer “extreme hardship”) that it would cause family members.[2]

Still, under the bill, immigrants applying for RPI status would have to be without a serious or recent criminal record. They will be ineligible if they have committed an aggravated felony, offenses for which in the aggregate they were sentenced to five or more years in prison, or any of a variety of other listed offenses, including procuring prostitutes, drug trafficking, and failing to register as a sex offender.[3] Deportable immigrants also are barred from seeking a hardship waiver if they have lied about having US citizen or legal-resident family.[4]

 

Will this bill help unauthorized immigrants who have already been deported reunite with their US families?

A:   Currently, unauthorized immigrants who have been deported face bars to their reentry into the United States. The Senate bill would loosen this restriction in some cases, so that deportees may reunite with family in the US.

In general, RPI status is available only to unauthorized immigrants currently in the United States, if they did not enter after December 31, 2011. However, an individual ordered deported (or who left via voluntary departure) not currently present in the United States may apply for a waiver of the bar to RPI status if that person:

  • is a spouse, parent, or child of a US citizen or lawful permanent resident; or
  • would meet the requirements of legalization for DREAMers[5]—that is, they came to the US before the age of 16 and received a high school degree or its equivalent (or entered before the age of 16 and were physically present in the US for three of the six years before enactment of the Senate bill.)

Such applicants, however, must continue to meet the other eligibility requirements for RPI status, as noted previously. As a result, many of those deported for criminal convictions, including minor ones, will not be eligible to return to the US, regardless of their family ties.

 

Which unauthorized immigrants are not protected under the bill?

A:   Under current US law, non-citizens with criminal convictions, including even lawful permanent residents, can face deportation for life for a variety of crimes, even minor offenses or offenses committed many years ago. By Human Rights Watch estimates, 72 percent of the close to 900,000 non-citizens deported for criminal convictions between 1997 and 2007 were deported for nonviolent offenses. We estimate they left behind over a million family members in the US, including citizens and permanent residents. Non-citizens convicted of “aggravated felonies,” which can include offenses like drug possession and shoplifting, have no right to have an immigration judge consider their individual cases and their family ties, but must be deported and barred from the US for life.

Unfortunately, the Senate bill makes almost no changes to these legal provisions. Unauthorized immigrants with criminal convictions are generally barred from applying for RPI status, and lawful permanent residents continue to face permanent deportation for a wide range of offenses, with few opportunities to remain with family, contrary to recommendations made by Human Rights Watch.

 

How would this bill affect a non-citizen who may want to join family in the US in the future?

A:   Currently, US citizens can “petition” for their spouses, parents, sons and daughters (whether children or adults), and siblings to get permanent resident status, while permanent residents can do the same for their spouses and children. In practice, because there are a limited number of visas available each year, many people end up waiting years and sometimes decades to join their families in the US.

Under the Senate bill, some categories of people will find it easier than under current law to reunite with their families in the US, while others will find it more difficult. US citizens will no longer be able to petition for their siblings and married sons and daughters over age 31. At the same time, however, spouses and unmarried children or children under age 31 of permanent residents, many of whom face very long waits, would no longer be subject to an annual cap and could immigrate more quickly. This is a welcome change, and one that Human Rights Watch has long recommended.

The Senate bill also creates a new system for granting permanent resident status, called “merit-based visas,” where visas are reserved for those who have a sufficient number of “points,” based on such factors as education, employment experience, the needs of US employers, and ties to US citizens. Additional visas are set aside to address the backlog of people who have been waiting for five years or longer based on petitions filed by their US citizen or permanent resident family members. The bill also creates a new visa for people who have been waiting for years to come to the US to live and work legally while they wait to apply for permanent resident status.

It is hard to say without additional analysis how much this measure will help reduce the backlog of people waiting for immigrant visas and how many families it will reunite. One concern is that low-income immigrants are not able to receive points based on education and employment experience; another is that unauthorized immigrants who apply for RPI status will have to wait up to 13 years to apply for citizenship, and in the meantime their family members will have limited ability to join them in the US legally.

Same-sex couples will still experience discrimination. US citizens in same-sex relationships or marriages with non-citizens cannot now petition for their partners or spouses to live with them in the US, and the Senate bill does nothing to change that, contrary to recommendations by Human Rights Watch.

 

II. Protecting immigrants from workplace violations

Unauthorized immigrants who are victims of workplace crimes and rules violations, or are potential whistleblowers, are often reluctant to come forward for fear of reprisal or deportation. Would this bill do anything to protect them?

A:   In theory, current law protects unauthorized immigrants who report a workplace violation from retaliation by an employer. However, since reinstatement is not available as a remedy to someone who is not working legally in the country, unauthorized employees hesitate to take the risk of exercising this basic workplace right.

Under current law, unauthorized immigrants who have suffered substantial physical or mental harm as a result of being a victim of crime may qualify for a crime victims’ visa (the “U visa”). But the U visa does not apply to workplace violations.

The Senate bill offers two new protections against retaliation for unauthorized immigrants working in the United States:

First, the bill prohibits employers from denying workers any remedy related to workplace rights on account of their unauthorized status.[6] The bill defines workplace rights as any rights guaranteed under federal, state, or local law, including protection from retaliation for exercising these rights. The bill explicitly includes back pay as an available remedy to unauthorized workers, overriding the Supreme Court’s decision in Hoffman Plastics v. NLRB, which found that workers without lawful immigration status were ineligible for back pay.[7] This is a change that Human Rights Watch has called for in the past.

Second, the bill expands the U visa program to cover victims of serious workplace violations, including retaliation. The bill broadens the definition of covered violations to include any “serious workplace abuse, exploitation, retaliation, or violation of whistleblower protections.” These are reforms in line with previous Human Rights Watch recommendations. The bill also increases the number of U visas available from the current level of 10,000 per year to 18,000, with 3,000 specifically reserved for the new covered violations, which include constitutional deprivations and certain civil actions related to trafficking and forced labor.

 

Would the bill protect “guest workers”?

A:   Authorized workers with a non-immigrant visa (like an H-2A or H-2B visa) do not currently enjoy the same statutory level of protection from retaliation as US citizen workers do. For example, H-2A visa holders are explicitly excluded from protections under the Migrant and Seasonal Agricultural Worker Protection Act. H-2B visa holders work under federal regulations that are silent on prohibiting employer retaliation. Last year, the US Department of Labor attempted to issue regulations that strengthened protection from retaliation for H-2B visa holders.[8] Business owners sued the Labor Department and prevailed when the Federal Court of Appeals for the 11th Circuit held that the Department of Labor has no authority to issue H-2B regulations.[9]

The Senate bill helps to address this issue by creating two new visas for lower-wage workers: the W visa and, replacing the H-2A agricultural visa, the “blue card.” Both offer workplace protections that do not exist under the current non-immigrant worker visa system.

The W visa is available for jobs that do not require a college degree. It gives priority to (but is not limited to) shortage occupations—to be determined by a new labor commission at the Department of Homeland Security (DHS). One advantage of the W visas is that they are portable, albeit within limits: holders can leave a job, so long as they find other W visa-certified employment within 60 days. Worker visa portability does not exist under current law, so workers who lose their jobs with the sponsoring employer must now leave the country. This means that W visa holders may be somewhat less vulnerable to abuse by unscrupulous employers, because they will be able to leave and seek new employment to escape exploitation or other abusive workplace violations.

The bill explicitly states that W visa holders cannot be denied any right or remedy under federal, state, or local labor or employment law that would apply to a US worker employed in a similar position. [10]The bill also protects whistleblowers, explicitly prohibiting W visa employers from retaliating against workers who disclose information about a workplace violation.[11] The Senate bill also prohibits employers from requiring any waiver of any substantive rights under existing immigration law (the Immigration and Nationality Act) by W visa holders, and prohibits employers from treating W visa holders as independent contractors, a source of exploitation in the past.[12]

Agricultural workers with the new blue card visa would likewise get heightened protections under the immigration bill. The bill would guarantee “equality of treatment” between blue card visa holders and US agricultural workers—ensuring that no right or remedy in federal, state, or local labor or employment law available to US agricultural workers can be denied blue card holders.[13] This is in line with prior Human Rights Watch recommendations.

 

III. Setting legalization rules that are clear and fair, respect families, and consider contributions of long-time residents

Are there any human rights concerns about how the bill defines who qualifies for legalization and who doesn’t?

A:   The Senate bill generally bars from RPI eligibility any person who would have otherwise qualified for the status but who has been outside the US after December 31, 2011 (or illegally reentered after that date). However, DHS can waive this bar for spouses, children, and parents of children who are Legal Permanent Residents or US citizens, or for individuals who entered the US under the age of 16 and have a high school diploma. People currently in removal proceedings or already ordered removed but still in the US can qualify for RPI status.

However, the Senate bill bars immigrants from qualifying for RPI status on the basis of their criminal history. Specifically, people are ineligible to apply if they:

  • have a conviction for an aggravated felony (a term of art under the Immigration and Nationality Act that encompasses a broad range of felonies and even some state misdemeanors);
  • have been convicted of any felony, so long as the felony was not a state or local offense for which an essential element was the alien’s immigration status, or a violation of the Immigration and Nationality Act (like illegal reentry); or
  • have been convicted of three or more misdemeanors, so long as they are not based on immigration status (same as felonies) or are not minor traffic offenses. The bar to eligibility for RPI status on the basis of misdemeanor convictions is waiveable to ensure family unity, for humanitarian purposes, or to serve the public interest.

As previously noted, Human Rights Watch is concerned that these categorical bars can interfere with a person’s right to family unity. For example, a conviction for a non-violent felony that occurred two decades ago bars a person from applying for RPI status, taking no account of the person’s ties to family in the United States. The immigration bill should allow for a broader waiver on the basis of family unity considerations, in line with previous recommendations by Human Rights Watch.

 

Does the bill raise human rights concerns for people in Registered Provisional Immigrant status?

A:   The Senate bill does not guarantee adjustment of status to lawful permanent residence to persons in RPI status. While it opens up visa eligibility to RPI status immigrants after proof of 10 years of authorized work history, it allocates visas to RPI status immigrants only on the basis of an employer petition or a family petition. Without either of these, RPI status immigrants do not have a method available to adjust status to lawful permanent residence, and could remain in RPI status indefinitely.

Even with an eligible employer or family member available to petition for adjustment of status for the RPI immigrant, the Senate bill includes other eligibility requirements before adjustment to Legal Permanent Resident status is possible. For example, RPI status immigrants cannot adjust status if they are not current on federal tax obligations. RPI immigrants must also pay a processing fee and penalties.[14]

RPI status immigrants who do not have a petitioner available to request adjustment of status, or who cannot pay the requisite tax obligations or penalties or fees or pass the employment or English language requirements, face an indefinite period, potentially a lifetime, in RPI status. During that time, these RPI status immigrants are building families and lives in the United States. Yet they remain in a very tentative legal status. They may be more vulnerable to workplace exploitation. For example, they may avoid complaining about an unsafe working condition out of fear of being fired and risking failing to comply with the employment requirements for renewal of their status, as noted above. They may also risk revocation of their status and removal due to a conviction for a non-violent crime, regardless of their family ties in the United States.

While the bill is in line with some Human Rights Watch recommendations with regard to family unity, it could be improved by: 1) allowing for broad family considerations prior to revocation of RPI status; and 2) allowing for waivers from the employment requirements in renewals of RPI status when in the public interest, particularly when an RPI status immigrant has lost employment due to retaliation.

 

How would this bill affect unauthorized immigrants brought to the US as children (“DREAMers”) who now want to legally study or work in the US?

A:   The Senate bill makes important provisions for the expedited legalization of unauthorized immigrants brought to the US as children, whose right to remain in the US is particularly strong because of the ties they have developed over time. Unauthorized immigrants brought to the US before they were 16 years old who graduate from high school or get a General Equivalency Degree and attend at least two years of college, or serve four years in the military, will be able to apply for RPI status. After five years, they may apply for permanent resident status; once approved, they may apply immediately for US citizenship. Unlike in earlier versions of the unpassed DREAM (Development, Relief, and Education for Alien Minors) Act there is no upper age limit. Individuals who received “Deferred Action for Childhood Arrivals” will have a streamlined process to legalization, as called for in the past by Human Rights Watch.

They must also meet the general eligibility requirements for RPI status, meaning they must not have three or more misdemeanor convictions or a conviction for a felony or an “aggravated felony.”

 

IV. Creating immigration law enforcement that guarantees due process rights for all, focuses on genuine threats to national security, and does not expose immigrants to abuse and crime

How would this bill change the way immigrants are detained or imprisoned?

A:   In 2011, the US immigration detention system held over 400,000 people, most of whom were not facing criminal charges. Over the past decade it has held about 3 million people in a vast and expensive system comprising over 250 facilities spread throughout the United States. Detainees are generally held without consideration of whether they are actually dangerous or at risk of absconding from legal proceedings. Many detainees, including torture victims and children, have endured punitive conditions in which medical care is grossly inadequate and sexual abuse frequently goes unreported or unaddressed.Human Rights Watch has called for alternatives to detention in cases where an apprehended immigrant has an otherwise clean record or poses no security risk.

As Human Rights Watch documented in 2011, immigrants are arbitrarily transferred between detention centers, thwarting detainees' ability to secure effective legal representation and limiting contact with their families. While federal officials have announced welcome changes to transfer and detention practices, it is unclear whether they are being effectively implemented.

The Senate bill includes several positive provisions on detention. For example, the bill requires that detainees be “treated humanely” at detention centers and that these centers be inspected more frequently by immigration officials. The bill might also reduce the population in detention by authorizing a “secure alternatives” program through which authorities, and in some cases local nongovernmental organizations, would make sure noncitizens show up for immigration proceedings without requiring detention. Importantly, the bill would broaden definitions of mandatory detention to include methods such as electronic ankle bracelets. It would also restrict stipulated removal orders—where detained unauthorized immigrants waive rights to hearings and the removal goes on their record—by requiring that detainees know the consequences of such orders and that they are voluntary.[15] During the committee process, the bill was amended to include restrictions on the use of solitary confinement, including an absolute ban on the solitary confinement on youth in immigration detention, which is also in line with Human Rights Watch recommendations against the solitary confinement of youth.

Another problem with current policy has been the unduly long periods of detention to which some unauthorized immigrants are subject, and the transfers of detainees to locations distant from their attorneys, families, and witnesses necessary for their hearings. The bill would require that notices to appear in immigration court be filed by federal officials within three days of custody. This would then require the government to file a “change of venue” motion if it wanted to transfer a detainee, which would likely reduce unwarranted transfers. Within those three days detainees would also have to be informed why they are being held and if they might be released on bond. A detailed custody hearing must take place within a week, and then every 90 days if custody continues. At those hearings, alternative forms of detention would be considered.[16] These reforms are in line with recommendations Human Rights Watch has made in the past.

Immigration detention in the US has become a huge business for private companies largely immune to government transparency and quality rules. The Senate bill would reduce that immunity, making detention contracts, agreements, evaluations, and reviews subject to Freedom of Information Act requests; the public would be invited to report on specific facilities; and detention contracts would become subject to new compliance and review policies.[17]

 

Are concerns raised by the bill’s proposal to increase spending on rapid prosecutions of unauthorized immigrants captured along certain parts of the southern border?

A:   Illegal entry and illegal reentry are now the most prosecuted federal crimes in the United States, outnumbering prosecutions of drug offenses, white-collar crime, and other federal offenses. In order to process the more than 80,000 cases a year, the federal courts use a variety of procedural shortcuts that often imperil the due process rights of defendants. For instance, “Operation Streamline” hearings charge, convict, and sentence dozens of immigration defendants at a time within a matter of hours. The strain that these cases placed on the federal court system led to the declaration of a judicial emergency in Arizona in 2011. Human Rights Watch has found that these prosecutions have a particularly significant impact on the human rights of migrants trying to reunite with family in the US as well as those who are seeking asylum.

The Senate bill would increase such streamlined prosecutions, specifically in the Tucson, Arizona sector, by providing funding for such prosecutions to increase to 210 a day from the current 70 a day. This increase could have an exponentially larger impact on prosecutions of such cases throughout the country, as convictions under Streamline for the misdemeanor conviction of illegal entry increases the likelihood of costly prosecution for illegal reentry if the convicted non-citizen tries to enter the US again.

The Senate bill also substantially increases the maximum penalties for illegal entry and for some categories of people convicted of illegal reentry. It is difficult to judge now how these changes would affect the actual sentences defendants serve, but it is clear now that unauthorized migrants serving time for these offenses already represent 30 percent of inmates entering an overcrowded and costly federal prison system.

 

Does this bill include measures to prevent alleged use of excessive force by border agents and immigration law enforcement agents?

A:   US Customs and Border Protection (CBP) has tripled in size over the last decade, but it is not clear that training and vetting of field agents has kept up with this rapid growth. CBP has faced repeated allegations of excessive use of force—including a number of fatal shooting incidents in recent years. Most of these cases remain unresolved, though the Office of the Inspector General has opened a number of investigations into corruption within CBP. Deploying an inadequately trained force that is rarely held to account threatens the safety of unauthorized immigrants and legal border-area residents alike.

The Senate bill would authorize spending billions of dollars to hire even more CBP officers, but would require closer supervision of CBP training and performance.  The Department of Justice’s Civil Rights Division would be charged with working with CBP to develop updated and appropriate use of force policies and training systems, and CBP officers would undergo training on the policies and rules for dealing with vulnerable immigrants such as unaccompanied minors, victims of human trafficking, and immigrants who may have potential asylum claims.

 

Allegations of racial profiling for years have dogged federal officers and local police that cooperate in immigration law enforcement. Does this bill address racial profiling?

A:   Racial profiling violates the right to non-discriminatory treatment by authorities, yet there are allegations of the practice against almost every level of law enforcement in the US. Current policies allow border patrol agents at border check points some flexibility in using race to trigger enforcement.  

The Senate bill would bar federal law enforcement from using race or ethnicity “to any degree, except that officers may rely on race and ethnicity if a specific suspect description exists.”[18] The Senate bill would also prohibit profiling even where agents are “investigating or preventing” threats to border integrity and national security “except to the extent permitted by the constitution and laws of the United States”—which may be a substantial loophole.[19] The bill is also silent on profiling on religious grounds. The bill would also require an analysis of data and regular reports on federal immigration agencies and their use of race in enforcement.

Nonetheless, the Senate bill would only apply to federal officers. It does not address local or state police that in many states have been called on recently to help enforce federal immigration law, and which have often been accused of engaging in racial profiling.

 

Victims of crime and potential witnesses are often reluctant to come forward for fear of reprisal or deportation. Would this bill do anything to protect unauthorized immigrants in these positions?

A:   Unauthorized immigrants are particularly vulnerable to crime; it is the government’s responsibility to protect people, regardless of legal status.

The Senate bill proposes offering unauthorized immigrants new avenues to report crimes, while protecting them from retaliation and deportation. For all unauthorized immigrants the bill proposes greater access to U visas, which can shield victims of serious crimes from deportation if they help prosecutors. Under current law, immigrants must show that they helped police and prosecutors and suffered “substantial” abuse stemming from a crime—as a result, many witnesses would be excluded. The bill proposes to add U-visa eligibility to immigrants who can demonstrate that a deportation would lead to substantial harm or abuse, and to witnesses cooperating with federal workplace regulators. Deportation actions could also be put on hold if an unauthorized immigrant is important to an investigation of a workplace violation.[20] These reforms are in line with previous Human Rights Watch recommendations.

The bill would also allow for prosecutions of those who defraud someone claiming authority under immigration law or pose as attorneys or qualified representatives. The bill would require that people who assist immigrants in filling out forms identify themselves and disclose payments for such services.

 

Would this bill change prosecutions of unauthorized immigrants who are particularly vulnerable, such as unaccompanied minors or people with mental disabilities?

A:   Each day, acutely vulnerable people are put into the immigration law enforcement system by federal authorities and local police, notwithstanding their diminished ability to defend themselves in court or detention. In 1998, in the report Detained and Deprived of Rights, Human Rights Watch called on federal prosecutors and immigration officials to stop imprisoning unaccompanied minors and respect their due process rights. We have also raised serious concerns about the treatment of people with mental disabilities and asylum seekers within the US immigration system.

Current law prohibits the use of government funds to provide counsel to a non-citizen in immigration proceedings. The Senate bill grants discretion to US Attorney General to offer legal representation at government expense to unauthorized immigrants in court, and it mandates that the Attorney General appoint counsel, at government expense if necessary, for unaccompanied minors, people with mental disabilities, and other non-citizens “considered particularly vulnerable.” It also would require that immigration authorities give proper legal orientation to detainees within five days of their being apprehended.[21] This is in line with Human Rights Watch recommendations.

 

Would this bill change the difficult process many unauthorized immigrants must go through to obtain asylum?

A:   Asylum seekers in the US are often put into expedited removal and others into mandatory detention and from there into removal proceedings. They face a one-year deadline for filing asylum applications, which is often difficult for them to meet—particularly if they are in detention and, like many applicants, lack the means to retain legal representation, or if they escaped life-threatening situations but are unable to produce documentary evidence of the threat. (Evidentiary requirements for establishing asylum claims are high.) Adding to their difficulties, asylum seekers are barred from working for a minimum of 180 days after filing a claim. Human Rights Watch has called for better treatment of children and other vulnerable groups in asylum courts.

The Senate bill represents, potentially, a positive change on behalf of asylum seekers. Consistent with Human Rights Watch recommendations, the Senate bill would eliminate the one-year filing deadline, and would allow people whose claims were rejected solely because they missed the deadline, and who are present in the US, a chance to reopen their claims. Further, the bill would create a conditional lawful status for stateless people, and grant admissions to children of spouses or children of those admitted to the US as refugees.[22] The bill was amended in committee to speed up the granting of work authorization, but still does not permit granting work authorization in the first 180 days.

 



[1] Border Security, Economic Opportunity and Immigration Modernization Act, proposed, Section 2313: Discretionary authority with respect to removal, deportation or inadmissibility of citizen and resident immediate family members.

[2] Ibid.

[3] Immigration Modernization Act, proposed, Sec. 2314: Waivers of inadmissibility.

[4] Ibid.

[5] Immigrants who would benefit under the Development, Relief, and Education Act Alien Minors Act (DREAM Act). See more on the DREAM Act below.

[6] Immigration Modernization Act, proposed, Sec. 3101: Unlawful employment of unauthorized aliens.

[7] Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Section 3101 does continue to exclude reinstatement as an available right to unauthorized workers. 

[8] “Labor Dept. Issues New Rules for Guest Workers,” New York Times, February 10, 2012, http://www.nytimes.com/2012/02/11/us/rules-revised-for-h-2b-guest-worker-program.html?_r=0 (accessed May 20, 2013).

[9] “11th Circuit Holds Labor Department Has No Authority to Issue H-2B Rules,” April 1, 2013, http://www.lexisnexis.com/community/immigration-law/blogs/inside/archive/2013/04/01/11th-circuit-holds-labor-department-has-no-authority-to-issue-h-2b-rules.aspx(accessed May 28, 2013).

[10] Immigration Modernization Act, proposed, Sec. 4703: Admission of W nonimmigrant workers.

[11] Ibid.

[12] Ibid.

[13] Immigration Modernization Act, proposed, Sec. 2232: Establishment of nonimmigrant agricultural worker program.

[14] RPI status immigrants must either: 1) remain employed without a break lasting more than 60 days; 2) not be likely to be found a “public charge”—i.e., anyone, according to DHS, who is likely to be “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (DHS will consider age, health, family status, assets, resources and other financial status in its public charge determinations. US Citizenship and Immigration Services, “Public Charge,” last updated September 3, 2009, http://1.usa.gov/YqxGqF(accessed May 28, 2013)); or 3) demonstrate an average annual income of 125 percent of the federal poverty level ($14,362 for a solo household or $29,437 for a family of four). Certain limited waivers of the employment requirement are available. (These employment requirements also apply for renewal of RPI status, which is required every six years.) To adjust, RPI status immigrants must further show an understanding of the English language and of the history, principles, and form of government of the United States. These requirements are waived in the case of a developmental or mental disability, and can also be waived for applicants who are 70 years of age or older.  

[15] Immigration Modernization Act, proposed, Sec. 3717: Procedures for bond hearings and filing of notices to appear.

[16] Ibid.

[17] Immigration Modernization Act, proposed, Sec. 3716: Oversight of detention facilities.

[18] Immigration Modernization Act, proposed, Sec. 3305:Profiling.

[19] Ibid.

[20] Immigration Modernization Act, proposed, Sec. 3201:Protections for victims of serious violations of labor and employment law or crime.

[21] Immigration Modernization Act, proposed, Sec. 3502:Improving immigration court efficiency and reducing costs by increasing access to legal information.

[22] Immigration Modernization Act, proposed, Sec. 3401: Time limits and efficient adjudication of genuine asylum claims.