immigration reform

Senate Immigration Bill Introduced (Updated)

/ The Old Crank / 2 Comments

(Updated Below)

Here is the full text of the immigration reform bill introduced by the Senate “Gang of Eight” yesterday: S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.”

Pretty consistent with what I had been hearing:

  • Establishes “Office of Citizenship and New Americans” at USCIS.
  • Creates a “United States Citizenship Foundation” to fund the Office of Citizenship and New Americans,  the purpose of which is seems to include expanding citizenship instruction.
  • Seems to partially punt, though, on the adult English language instruction issue somewhat by creating a “Task Force on New Americans” to look at this issue, among others.

Seems to me that the big question is whether USCIS will coordinate with the existing adult ESL system or create something parallel… not clear from my quick skim. I’m eager to hear what others think after giving it a more thorough read. Take my comments above with a grain of salt — I may have missed something.

UPDATE (4:30 PM): Something I missed on the first go-round: In addition to the above, there is also another grant program allowed under Title II. Under Section 2106, up to $50 million from the Comprehensive Immigration Reform Trust Fund can be used for grants, and the list of permissible uses of those grants includes civics and civics-based English as a second language instruction.

The Comprehensive Immigration Reform Trust Fund would be set up as the depository of the funds collected via various existing and new fines/fees. It’s important to note that the  grant program coming out of the Trust would be allowable, but not mandatory, and there’s really no way to tell how realistic it is that as much as $50 million would be available for it, let alone how much might actually end up in the hands of programs that offer ESL instruction. A lot of activities under this legislation would be funded through the Trust.

A comprehensive analysis of the potential funding opportunities will take some time. It will also take some time to better understand how well/whether the provisions related to English language instruction leverage the existing federal funding for adult education.

Nonetheless, I still feel that there is something of a punt here on some of the integration pieces—to be sorted out and clarified via the “Task Force on New Americans.”

Again, though, this is a very preliminary look at a very long (844 page) bill.

Sorry also about the typos in the original post.

Outline of Senate Immigration Reform Bill

/ The Old Crank

The American Immigration Lawyers Association has posted a 17-page outline of the Senate Immigration reform bill, which apparently will be called the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

The outline does not provide much clarification regarding the English language requirement discussed in the principles statement released by the “Gang of Eight” Senators last January. In that document, they listed learning English and civics as one of the requirements that undocumented immigrants currently residing in the U.S. would need to meet in order to earn the opportunity to apply for lawful permanent residency. The section in the bill outline on “Legalization and Legal Immigration” reaffirms this requirement (see second to last paragraph below) without providing any additional details:

Legalization and Legal Immigration

I. Adjustment of Status to Registered Provisional Immigrant Status

  • Individuals in unlawful status may apply to adjust their status to the legal status of Registered Provisional Immigrant Status.
  • Eligibility Criteria:
    • Residence in the United States prior to December 31, 2011 and maintenance of 
continuous physical presence since then.
    • Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all applicable fees required to pay for the cost of processing the application.
    • Ineligible if:
      • Convicted of an aggravated felony;
      • Convicted of a felony;
      • Convicted of 3 or more misdemeanors;
      • Convicted of an offense under foreign law;
      • Unlawfully Voted; and
      • Inadmissible for Criminal, National Security, Public Health, or other morality grounds.
  • Spouses and children of people in RPI status can be petitioned for as derivatives of the principal applicant (but must be in the United States at the time).
  • Immigrants in RPI status can work for any employer and travel outside of the United States
  • Individuals outside of the United States who were previously here before December 31, 2011 and were deported for non-criminal reasons can apply to re-enter the United States in RPI status if they are the spouse, of or parent of a child who is, United States citizen or lawful permanent resident; or are a childhood arrival who is eligible for the DREAM Act.
  • The Application period will be for 1 year with the possibility of extension by the Secretary for an additional 1 year.
  • Individuals with removal orders will be permitted to apply as will aliens currently in removal proceedings.
  • RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render the alien deportable. Another $500 penalty fee is applicable at this time.
  • The Secretary may collect a processing fee from individuals who register for RPI status in an amount that is sufficient to recover all of the costs of implementing the registration program.
  • An individual who has been granted RPI status is not eligible for any Federal means-tested public benefit (as such term is defined in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613)).
  • A noncitizen granted registered provisional immigrant status under this section shall be considered lawfully present in the United States for all purposes, while such noncitizen remains in such status, except that the noncitizen
    • is not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986; and
    • shall be subject to the rules applicable to individuals not lawfully present that are set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C. 18071).
  • After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green card (described below) if the following things have occurred:
    • The alien maintained continuous physical presence
    • They paid all taxes owed during the period that they are in status as an RPI
    • They worked in the United States regularly;
    • And demonstrated knowledge of Civics and English (my emphasis)
    • All people currently waiting for family and employment green cards as of the date of enactment have had their priority date become current.
    • A $1,000 penalty fee is rendered
  • People in DREAM Act Status and the Agricultural Program can get their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

Source: American Immigration lawyers Association

Could Immigration Reform Draw Greater Attention to the Legal Needs of Low-Income Immigrants?

/ The Old Crank

Kirk Semple, writing for the New York Times’ City Room blog, reports that a federal appellate judge in New York is proposing an “immigrant justice corps” program that would recruit and train young lawyers to assist illegal immigrants navigate the pathway to legal residency status and citizenship—under the assumption that the immigration reform legislation anticipated sometime this year will provide one. Most expect it will.

The judge, Robert A. Katzmann, envisions something that would look a lot like AmeriCorps VISTA and the Peace Corps. According to Semple, the program would recruit 50 young immigration lawyers every two months for two-year periods of service. Like the programs modeled on Teach for America I wrote about a couple of weeks ago, it would give graduating law students an opportunity for work in what is a tight job market right now for lawyers. Katzmann estimates that he would need $5 million to support the program for a year. Authorizing a few million dollars of federal money in the immigration reform bill itself to provide legal assistance to those trying to meet the requirements of the law should be a no-brainer, but in the current budget-cutting climate, that may not be possible.

As Semple notes, Judge Katzmann has been a longstanding critic of the quality of the legal representation provided to immigrants, and was the leader of a group in New York group that proposed a plan last year to create a network of legal service providers to represent low-income immigrants in the New York City region.

One of the biggest problems facing immigrants in any legal proceeding is lack of English proficiency. I’ve seen firsthand defendants brought before judges in criminal courtrooms, for example, who don’t read or speak English and have no experience navigating the U.S. legal system. Last year, I noted on this blog that the National Center on Access to Justice (NCAJ) at the Cardozza School of Law had concluded that many courts “have little or no way to communicate with the growing number of Americans who have only limited proficiency in English.” As a result, “innocent people have been sent to prison, children have been sent to foster care unnecessarily, and women have found it impossible to get court orders to protect them from domestic violence.” As I argued in that post, this is a problem not just for non-native English speakers but for native English speakers with low levels of literacy as well.

I agree with Judge Katzmann that the problem of inadequate legal representation for immigrants (especially low-income immigrants) will acquire even greater urgency once an immigration reform bill is passed, but the problem isn’t limited to immigration status issues. Perhaps his proposal will draw greater attention to the need to address language access and low literacy in our justice system generally.

Two Basic Principles for Immigration Reform and Learning English

/ The Old Crank

All indications are that the immigration reform legislation currently being drafted in the Senate is going to provide undocumented immigrants currently residing in the U.S. with the opportunity to apply for lawful permanent residency—but with a much more arduous set of requirements than are required by normal green card applicants. Adult education groups are particularly interested in the English language requirement (which I discussed here).

Having now had a chance to think about this for a few weeks, my thoughts on this requirement come down to two basic principles:

  1. A requirement to learn English in order to qualify for lawful permanent resident status shouldn’t penalize or place an unrealistic burden on those with significant learning challenges.
  2. Any requirement to learn English in order to qualify for lawful permanent resident status should address the increased demand for English instruction that would emerge as a result, in a way that leverages the success of adult education programs that already provide these services.

The first has to do with basic fairness and ensuring equal opportunity. A requirement to learn English in order to qualify for lawful permanent resident status shouldn’t penalize or place an unrealistic burden on those who have special learning challenges, such as:

  • Those with limited education or literacy skills in their native language.
  • Those who are caregivers of children and therefore may have more limited opportunities to attend English classes. Lack of childcare services is already a significant barrier that prevents many people from attending adult education classes—particularly women.
  • Those who are elderly or disabled. For citizenship, those who are over a certain age and/or who have a disability may be granted an exemption from completing the English and civics tests. Similar kinds of considerations should be made for undocumented immigrants applying for the permanent resident status who are elderly/disabled.

It seems to me that consideration should be given to scrapping English proficiency altogether as a requirement and using satisfactory completion of some form of legitimate English language instruction over a certain period of time as sufficient to qualify. This would eliminate the problem of having to figure out what level of proficiency is going to count as sufficient, and it would largely (although not entirely) address the problem that the elderly/disabled may struggle to gain proficiency easily or quickly. One would still have to know English at certain level of proficiency to become a citizen (other than those who would be granted exceptions anyway).

The second basic principle is that any requirement to learn English in order to qualify for lawful permanent resident status should address the increased demand for low-cost English instruction that’s going to explode as a result, and in a way that leverages the success of adult education programs that already provide these services for free or at a limited cost. (I’m thinking here primarily of the adult English language and literacy programs funded at least in part by federal/state dollars—but also the privately funded nonprofits that are also key adult education providers in many communities.)

  • While the current capacity of these programs may not be sufficient to meet new demand, it will be cheaper to leverage the existing capacity than to create new entities to provide this instruction.
  • Moreover, this existing adult education system already has a track record of success in providing individuals with the English skills needed to successfully enter employment, improve their employment prospects, enroll in job training or in postsecondary education. The adult education system also has a track record in many states of providing adults with the opportunity to co-enroll in English language instruction while obtaining technical skills.
  • Similarly, it doesn’t make sense for the English language requirement to establish its own measure(s) for English proficiency that does not align with those measures already in use by the adult education system in local communities.

Finally, while it’s probably not realistic to expect a big increase in federal expenditures for these programs to be included in this bill, we ought to at least strengthen what we have. Let’s encourage professional and private sector investment in expanded adult English language instruction. One way to do this would be to provide tax credits for businesses that partner with adult education programs to provide English instruction for their employees (or residents of the community)—a variation of an idea was included in the Menendez/Leahy immigration reform bill in 2010.

In addition, I can’t think of a good reason why this legislation shouldn’t include the authorization of the EL/Civics grant program under Title II of the Workforce Investment Act (WIA). (WIA is the primary vehicle for federal investment in adult education in the U.S.) EL/Civics isn’t actually authorized by WIA but is a set-aside that has to be approved by Congressional appropriators every year. The lack of authorization leaves the program more vulnerable to elimination than other programs under WIA, at a time when we can least afford for that to happen.