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2/24: Partial Summary of Select Provisions in Senator Specter's February 23 Draft Comprehensive Immigration Reform Legislation
Released 24 February 2006  By National Immigration Forum

Partial Summary of Select Provisions in Senator Specter's February 23 Draft Comprehensive Immigration Reform Legislation
February 24, 2006

(Summary of enforcement provisions to follow)

Below is a rough outline of how the February 23, 2006 version of Senate Judiciary Chairman Arlen Specter's draft immigration bill treats undocumented immigrants, future foreign workers, and family-sponsored immigrants.

This is not a detailed or complete summary. Additional visa reforms were included in the Chairman's mark, as were many immigration restrictions and enforcement provisions that are of grave concern. Deeper analysis of the enforcement provisions, including consequences for undocumented individuals and potential applicants for the temporary worker program, will be forthcoming.

This document is based largely on the section-by-section summary provided by Senator Specter's staff. Errors and omissions are likely. We will be providing more definitive information after experts among our colleagues have had a chance to independently analyze the 300-page bill.

The Undocumented: Permanent Temporary Status for Most
* Immigrants who were present in the U.S. unlawfully and working as of January 2004 could apply for a temporary visa that would allow them to work legally and travel internationally. They would not have to leave the U.S.

* The immigrant would have to 'plead guilty' to being in the U.S. unlawfully, show proof of employment, pay back taxes, waive his right to administrative or judicial review of a denial or to contest a future deportation, show he is 'admissible,' possibly undergo a medical exam, and submit an application within one year of date of enactment.

* Eligible family members could join the applicant, but would not be eligible to work. The applicant would not receive work authorization or proof of status until all background checks are completed.

* The temporary visa and work authorization would be indefinite.

* If the immigrant loses his job, he would have 45 days to find a new employer who is eligible to hire someone under the new H-2C temporary worker program (see below). Barring that, the immigrant would have to leave the U.S.

* Anyone who meets the presence and employment requirements but fails to apply for this nonimmigrant status would be barred from cancellation of removal and voluntary departure.

* While undocumented immigrants who gain temporary visas under this program would not appear to be barred from adjusting to permanent status, no additional permanent resident visas would be made available to put them on a path to permanent residence and citizenship.

* Although more visas would be made available for family and workers overall (see below), if the only path to permanent residence for the undocumented is through the revised system as proposed, there would be millions added to the family and worker visa backlogs. In effect, most of the undocumented would spend their lives in a second class status, without ever gaining a chance to become citizens.

More Family and Worker Visas
* The cap on family-based immigrants would be raised by exempting immediate relatives of U.S. citizens from counting against the worldwide cap of 480,000.

* Family preference visas, therefore, would increase from the current 226,000 to 480,000, and would be re-allocated among the existing preference categories and permit the recapturing of visas that go unused due to processing delays.

* Per-country immigration limits would be increased slightly.

* Employment-based green cards would be increased to 290,000 from 140,000; visas that go unused due to processing delays would be recaptured; and per-country limits would be slightly expanded.

* 'Essential workers' (or lesser-skilled 'other workers' in the current system) would be given 30% (87,000) of the employment-based visa total.

* Though visas for these 'other workers' would increase to 87,000 from the present 5,000 per year, the new total is plainly inadequate if this would be one of the only ways the current undocumented population could obtain permanent residence. On top of those potential millions of applicants will be a portion of workers from the new proposed temporary worker program who might wish to adjust.

A New Temporary Worker Program
* The bill would create a new temporary worker program, known as H-2C.

* An employer would first attempt to recruit a U.S. worker in his geographic area. If he is unable to hire a U.S. worker, he could apply for an H-2C worker.

* The employer would have to offer a wage rate for this position that is at least the greater of the wage of similarly-employed individuals or the prevailing wage; obtain adequate insurance coverage for workplace injuries; attest that there is no work stoppage, strike, or lockout at the place of work; and attest that the hiring of an H-2C worker would not displace or harm U.S. workers.

* Other labor protections in the bill include: whistleblower protections, a prohibition on treating an H-2C worker as an independent contractor; registration and monitoring of labor recruiters; and an administrative process to bring grievances against employers for violating the H-2C program.

* There is no cap for these worker visas.

* There appears to be no bar to adjustment to permanent residence, but through a revised visa allocation system (described above) that would be severely backlogged with new applications due to there not being a separate path to permanent residence for the undocumented.

* Family members of H-2C workers could come with the visa holder, but would not receive work authorization.

* Individuals who had previously lived in the U.S. unlawfully, and are subject to grounds of inadmissibility in current law, would not be eligible for the H-2C program.

* The H-2C visa holder would receive travel permission and work authorization for 3 years. His status could be renewed one time for a total of 6 years. He could return on another H-2C visa, but only after spending at least one year back in his home country.

* If the H-2C worker loses his job, he would have 45 days to find new employment with an employer who is eligible to hire someone under the new H-2C temporary worker program. Barring that, he would have to leave the country, but could re-enter on his same visa if he finds a job with an eligible employer and the three years have not expired.

* The H-2C worker could not apply to change his status to another nonimmigrant visa category. Failure to depart upon expiration of the worker visa would bar the individual from future immigration status (except for refugee-related relief).

* The bill would require bilateral agreements with sending countries that would require them to accept return of deported nationals in a timely manner, share information with U.S. authorities about criminal and other illegal activity, and help to discourage unauthorized migration.

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