LEGISLATIVE UPDATE

Immigration reform legislation advanced in both the House of Representatives and the US Senate last month. But each house of Congress took steps which appear to doom the prospects for overhauling the legal immigration system. Furthermore, President Clinton announced that he would veto any legislation which reduced legal immigration.

On March 14th, the Senate Judiciary Committee voted by a 12-6 margin to split S.1394, the Simpson Bill, into an illegal and a legal immigration bill. The illegal immigration bill and legal immigration bills were reported out of committee and are scheduled for Senate floor action in mid-April. However, the legal immigration bill underwent some major changes before it was reported out of committee. First, the Judiciary Committee approved an amendment to remove all employment-related provisions from the bill. The Committee also amended the family-based provisions by adding back the adult sons and daughters and the brothers and sisters categories with a total annual spill-down of 175,000 visas. Other significant changes include an extension of the visa waiver pilot program through September 1997, a provision calling for differing treatment for academic and nonprofit institutions for prevailing wage purposes (this is intended to benefit universities in H-1b and labor certification cases), and new rules allowing for the denial of visas to those tied to economic espionage or piracy of intellectual property.

On the House of Representatives side, H.R. 2202 was amended and all provisions that would have reduced family and employment-based immigration were removed on March 21st. The remaining bill passed shortly afterwards and largely covers illegal immigration. The bill would increase criminal penalties and investigatory authority for alien smuggling. It would increase penalties relating to the misuse of government-issued identification documents or who falsely claim US citizenship.

H.R. 2202, as passed, will make numerous changes to the employment verification system. First, the number of documents employers may accept to prove eligibility to work in the US would be reduced to just six. The number of INS personnel responsible for enforcement would be increased. And the House approved a controversial pilot employment verification program that would allow (but not require) employers in five states with large illegal immigrant populations to call a toll-free telephone number to verify a new employee's identity, social security number, alien number (if one has been assigned) and work eligibility.

The House bill contains numerous provisions prohibiting aliens not lawfully in the US from receiving government assistance from Federal agencies. The bill would also prevent many aliens from receiving public assistance after arriving in the US by "deeming" the sponsors' income to be part of their own when attempting to show the lack of resources necessary to qualify for various assistance programs. Another controversial provision of the bill requires that the sponsor of an immigrant must have an annual income level equal to 200 percent of the official poverty level for the individual, the individual's family, the sponsored alien and the sponsored alien's nuclear family. Opponents of this provision argued that the rule would discriminate against poorer Americans and would bar as many as 91 million Americans from sponsoring a family member.

Perhaps the most controversial addition to the bill was an amendment which allows states the option of barring public education to any alien not lawfully in the US. Opponents of the provision argued that it is unconstitutional given the Supreme Court decision in PLYER v. DOE, 457 US 202 (1982) which bars states from denying any student a publicly funded education on account of the student's status.

The Smith Bill would toughen enforcement against illegal immigration in a number of ways. Those found to be in the US illegally would be barred from reentering the US for five years. Those in the US for more than a year illegally would be barred from coming back to the US for ten years. Those who "knowingly and intentionally" entered the US illegally would be permanently barred from seeking an immigrant or a non-immigrant visa. The burden of proof in many removal proceedings (exclusion and deportation proceedings would be treated the same and called "removal" proceedings) would be toughened. Expedited removal proceedings would be used in cases where people appeared to an INS inspector with fraudulent or no documents. In cases involving an "alien terrorist", the government would be allowed to present classified information that an alien would not be allowed to view.

The bill would also add 5,000 new border patrol agents and increase physical barriers on the border with Mexico including fourteen miles of triple fencing along the San Diego border area.

A few key last minute amendments were also added. Poles and Hungarians in the US in parolee status would be allowed to adjust to permanent residency. Certain Hmong veterans of the Vietam War would not have to meet English language requirements for naturalization. The House, however, voted to reject an extension of the H-1A nursing program.

So what is next on the immigration reform horizon. The House has finished for now. The Senate bills will be considered by the entire Senate. If they pass, the House and Senate will hold a special conference committee to hammer out a compromise bill which would then be voted on by each house. If the bill then passed, the bill would go to the President for his signature or veto. If signed, the bill would become law. If vetoed, the Congress could override the veto only with a two-thirds vote.