Immigration Primer Special Edition: the Kennedy-Kyl bill

This is another installment in the immigration primer series, addressing the current events. In short, this immigration bill, if it becomes law, would be the biggest overhaul of immigration law since the current immigration law was introduced in 1952.

Unlike most of the immigration primer diaries so far, this one is based on a very incomplete understanding of what the bill includes, and will, by necessity, contain a lot of interpretation and conjecture. Most of the information is based on the summary by Siskind, Susser, Bland PLC, another summary by DHS, as provided by Carl Shusterman and one provided by the American Immigration Lawyer's Assocation (AILA)

At least on first glance, there appear to be some very good provisions, as well as some that are either impractical or too onerous.

Update 5/18/2007 3:35 PM: Keep in mind that at this point, this is just a bill. To become law, it has to be voted on in the Senate, then voted on in the House, then Senate and House have to get together in a Conference Committee to iron out differences. At any stage of this process, very substantial changes can be made. Finally, the President has to sign it.

Q: What does the bill contain?

It includes several separate provisions:

• Border control
• Introduction of a new Z visa to pass the time until a Green Card becomes available.
• Electronic verification replaces the I-9 form
• A new Y visa for guest workers.
• Most family immigration will be abolished.
• The employment-based system will be replaced with a point based system.
• There is a trigger provision.

Q: Is it an amnesty?

The word amnesty has been used to describe all kinds of immigration activity, mostly by their respective opponents. That said, in practical terms, it is probably not an amnesty, depending on your personal definition.

Q: Is there a path to citizenship, and how would it work?

It should really be called "path to a Green Card". Here is how it apparently is supposed to work:

• Somebody who is illegally in the USA applies for Z status (not a Z visa, as is erroneously stated).
• That person would pay a $1000 fine (presumably for each family member).
• The Z status is good for four years.
• After four years, the person can apply for a renewed Z status again.
• Z status holders are not eligible for a Green Card unless the backlog in family categories are eliminated. It is not quite clear to me if this would happen eight years from now, or never.
• Apparently, once the Green Card becomes available, the person would have to apply at a US consulate in his home country for an immigrant visa, and pay an additional $4000 fne. He would not be eligible to adjust status within the USA the way most immigrants can do it.

My guess is that this path to a Green Card is unworkable. There are several reasons:

• $20000 ($1000 for the initial fine, and $4000 for the subsequent Green-Card fine, per person) for a family of 4 is a lot of money even for a middle class American, let alone for supposedly low-income illegal immigrants. Even more so if this is due again after 4 years.
• It is not clear to me how the backlog in family categories can ever be eliminated. What this clause may refer to is that no more cases from the newly abolished family categories are pending.
• The applicants would still have to qualify under the new merit-based system.

Q: What will happen to non-citizen family members of US citizens?

In the past, family unification was an overriding goal of immigration law. Thus, parents and children of US citizens were allowed to immigrate as family immigrants. All of these categories would be abolished, except for the Family 2A category.

The Family 2A category allows - after a, currently, six-year wait - spouses of Green Card holders to immigrate to the USA.

Under the new bill, at least as it is looks today, these applicants would be told to instead apply as merit-based immigrants.

Q: What will happen to employment-based immigrant applicants?

It appears that the employment-based immigration would be abolished as well. To replace the family and employment immigration categories, a new merit-based system would be introduced.

From the scarce information about it, it appears that this system might end up being somewhat similar to the system that Australia or Canada are currently using.

The underlying idea behind such a system may be a very good one.

Currently, our system suffers from a serious flaw: applicants qualify for immigration either through employment, or through family ties, never both.

That is not a problem for a nuclear scientist; he'd qualify through employment.

It is also not a problem for the spouse of a US citizen to qualify as family.

However, imagine a successful young car mechanic with an uncle in the USA. Under the current system, "car mechanic" is not quite enough to get a Green Card (even though he may actually be highly desirable for our economy), nor is uncle enough.

With a merit-based, or points, system, he could get credit both for his family ties, and for his work experience.

From the White House news release:

Under The Merit System, Future Immigrants Applying For Permanent Residency In The United States Will Be Assigned Points For Skills, Education, Employment Background And Other Attributes That Further Our National Interest.  These skills include:

• Ability to speak English.
• Level of schooling, including added points for training in science, math, and technology.
• Job offer in a high-demand field.
• Work experience in the United States.
• Employer endorsement.
• Family ties to the United States.

Q: What is the guest worker program?

A new guest worker program will be created using a Y status. The Y status would be intended for temporary worker who intend to return to their home country, and would not lead to a Green Card (with an exception for up to 10,000 exceptional Y workers).

The USA already has a very similar program, known as H-2. I cannot tell how these two programs would differ in general.

Two differences are obvious:

• Y status holders would be required to buy health insurance. This alone may probably make the Y unaffordable for most people, unless the employer picks up the bill
• Y status carries strict minimum income levels. These are socially desirable, but may be unrealistic in practice.

Employers will also have to prove that they tried to recruit Americans for the job. While this provision sounds good on paper, this is the exact approach that got employment-based immigration into serious problems. The Labor Certification used to show this proof took up to five years or more to process.

To me, it appears that the Y status would only be practical for middle and upper income levels. These same groups of people, however, would probably not be interested in an uncertain temporary job that will uproot their family again after just a few years.

Q: What will happen to the diversity lottery?

The lottery would be abolished

Q: What is the trigger provision?

The trigger provision is potentially a poison pill in this bill.

It requires that most of the changes, such as the Z status, the Y status, only take effect after border security has reached certain goals that may be unattainable.

The triggers are:

• 200 miles of vehicle barrier and 350 miles (AILA says 370 miles) of fence built
• 70 ground-based radar and camera towers on southern border
• deployment of 4 unmanned aerial vehicles
• end of catch and release policy
• resources to detain 27500 aliens per day
• implementation of a secure ID card
• processing Z visas

I see the provision to require implementing a secure ID card as particularly onerous after the recent RealID controversies.

Also, ending the catch-and-release policy is likely not going to be realistic.

Update 5/18/2007, 3:31 PM: Some commenters brought up interesting points that deserve addressing.

Q: Are there provisions that would affect H-1Bs?

Maybe. Some media reports mentioned it, but neither the DHS nor the AILA summary say anything about it. Very little has been reported about this, but the general impression I have so far is that the H-1B program would be tilted towards higher-skilled people. For highly-skilled (and highly paid) people the quota would be eliminated, for lower-paid workers, it would be raised.

Q: How would the employment eligibility verification system (EEVS) work?

When hiring an applicant, an employer would be required to verify through the Internet that the person is eligible to work in the USA.

I see a couple of issues here:

• What happens if somebody is accidentally deleted from this database?
• Will this lead to a surge in identity theft?

Update 5/23/2007 10:45 PM:

Hillary Clinton proposed an amendment that would remove the quota limit from the family 2A category, the only remaining family category.

Q: How would the bill affect the overall Green Card quota numbers?

On a whole, this is not quite clear right now. However, it appears that the overall number of Green Cards would be roughly cut in half. The family categories would be abolished almost completely, while the employment-based categories would be replaced with a "merit-based" system that is supposed to give highly qualified family members a chance, too. Apparently, the quota for this merit-based system would be roughly the same as for current employment-based categories. End result: more people competing for a smaller number of Green Cards. This would probably mean one of two things:

• Either, the backlog would grow at an even faster rate than it already does.
• Or, the backlog could be abolished altogether. All Green Cards would be awarded immediately to the highest-scoring applicants. If this is how the final system would work, it is possible that only Nobel Prize winners and people of similar caliber will remain eligible for a Green Card.