Arizona Republic
By Daniel Gonzalez
February 3, 2013
President Barack Obama and a bipartisan group of eight senators have set the stage for Congress to pass comprehensive immigration reform this year.
But passing a broad bill that addresses all aspects of immigration as Obama and the bipartisan group have proposed is fraught with obstacles, any one of which could derail the entire bill, as it did the last time Congress tried to tackle comprehensive immigration reform.
The two plans, announced last week, put forth guidelines for beefing up border security, legalizing undocumented immigrants and cracking down on employers who hire illegal workers. Their vision also would streamline the nation's vast and complicated legal immigration system to better meet the labor needs of the economy and dissuade illegal immigration while trying to prevent families from being split apart.
"There are all sorts of things that are complicated here and difficult to work out both substantively and politically," said Doris Meissner, former commissioner of the Immigration and Naturalization Service under President Bill Clinton. She is now the director of the U.S. immigration-policy program at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C.
To be successful, political leaders must craft a bill that not only satisfies the needs of both parties but also delicately stitches together the interests of a broad array of groups that have a stake in the nation's immigration system, whose concerns often conflict, analysts and immigrant advocates say.
The interests are many, varied and vocal.
Congress will face pressure from border-community leaders such as Arizona Gov. Jan Brewer, who want the border secured before other reforms are put in place. Latino and immigrant advocates, who are wielding growing political clout in the wake of Obama's re-election, will be pushing hard for a bill that allows undocumented immigrants to quickly and fairly gain legal status and eventually citizenship as long as they contribute to the economy and their communities.
There also will be pressure from business groups that favor temporary-worker programs and more visas for lower- and higher-skilled workers and from labor groups that want to make sure that letting in more immigrant workers doesn't hurt the wages and jobs of Americans.
"It's always been a really contentious issue -- what to do about people who are here without legal status," said Audrey Singer, a senior fellow and immigration expert at the Brookings Institution, a think tank in Washington, D.C. "There are a lot of people who have really well-formulated opinions about the border and illegal immigration, and it's really hard to change their points of view, and so (legalization) is seen as contributing to the problem rather than contributing to a solution."
Add to the mix other contentious issues such as workplace enforcement, employer verification, and adjusting the future levels of legal immigrants, and passing a comprehensive immigration bill becomes even more complicated, she said.
Failure to find consensus on even one of those issues could be enough to kill the entire push, despite the momentum. In 2007, even with the strong backing of President George W. Bush and broad bipartisan support from veteran lawmakers including Sen. Edward Kennedy, D-Mass., and Sen. John McCain, R-Ariz., the House refused to act on a bill passed by the Senate. The snag? What to do with the illegal immigrants -- then estimated to be 12 million -- already in the country.
Similar obstacles loom with this effort.
Undocumented migrants
Though the number of illegal immigrants living in the U.S. has declined in the six years since the 2007 reform attempt, and illegal immigration from Mexico is at net zero, what to do about the estimated 11 million people living here without legal status still presents perhaps the most contentious obstacle to passing reform.
Fierce opposition from conservatives to a plan allowing illegal immigrants to gain legal status and eventually citizenship was largely responsible for derailing reform attempts in 2006 and 2007.
It's the issue that's been "the most third rail," said Meissner, referring to the electrified rail on subway tracks often used to describe issues political leaders are afraid to touch.
But the new bipartisan agreement from the eight senators, including McCain and Jeff Flake, R-Ariz., shows there's been "a big breakthrough" over what to do about the huge number of undocumented immigrants in the U.S., she said.
The "Gang of Eight" plan says that illegal immigrants should be given the opportunity to become permanent legal residents and eventually citizens once the border is secured. They would also have to pay fines and back taxes, pass background checks, learn English and not cut in front of immigrants waiting to enter legally.
Obama's plan is nearly identical, except he does not make gaining permanent residency and citizenship contingent on securing the border.
Still, any legalization program for undocumented immigrants will face scrutiny from both opponents and supporters.
Conservatives will argue, "Do you really want to legalize folks when so many Americans are out of work?" said Steven Camarota, director of research at the Center for Immigration Studies, which favors less overall immigration and more immigration enforcement.
Democrats and Republicans who support a legalization program, meanwhile, may disagree over key details, such as whether gaining permanent residency should be tied to border security and how long undocumented immigrants should have to wait to gain citizenship.
"There are the Democrats who are saying you have to have a fairly short direct path to citizenship, eight to 12 years; a few years of conditional status, then permanent residency and then citizenship," said Frank Sharry, executive director of America's Voice, a national organization that advocates for comprehensive immigration reform.
Republicans, however, may push for allowing illegal immigrants to gain legal status without a direct path to citizenship or push for a much longer path tied to border security and reducing immigration backlogs that could take decades instead of years, he said.
Camarota said any attempt to legalize undocumented immigrants will raise many other questions, including the size of the fine, how the government will collect back taxes for undocumented immigrants who worked for cash in the past, how much English they will have to learn, whether they will qualify for Obama's new health-care program, and how the government will adequately perform background checks for such a large number of people.
Border security
Obama and the Gang of Eight agree that border security should be the top priority of any comprehensive immigration-reform bill.
The Gang of Eight's agreement goes a step further by calling for the creation of a commission of governors, attorneys general and community leaders from border states to "monitor the progress" of border security and recommend when border-security goals have been met.
The commission would also play a central role in establishing the "trigger" for implementing a pathway to citizenship for illegal immigrants. The Gang of Eight's agreement calls for allowing undocumented immigrants to apply for probationary legal status at first and then for permanent residency once the border has been deemed secure.
But coming up with objective ways to measure border security and determining when the border is secure will be major challenges.
The debate, Meissner said, is going to be, "What do you mean by border security and how much is going to be enough? Will people be willing to accept certain kinds of measures and not other measures? Are there people who believe that zero tolerance is the only answer or can one be more pragmatic about it in the way that one is with law enforcement in other realms? That's all going to have to be debated."
"But," she said, "that is a more productive debate frankly than the one we've had for years and years where we've just had 'The borders are out of control, and now we can't talk any further.' "
Another point of contention will be determining the structure of the commission and how much power it will hold, Camarota said.
Supporters of a pathway to citizenship will push to make the commission as weak as possible, while those opposed to legalization will argue that the commission is "meaningless" if illegal immigrants can receive probationary legal status before border security has been achieved, Camarota said.
Legal immigration levels
Obama and the eight senators also call for revamping the nation's legal immigration system to meet future demands of the economy while continuing to support family unification by allowing legal immigrants to sponsor relatives.
But any effort to expand the numbers of high- and low-skilled workers could run into opposition from conservatives who oppose more immigration. Business and labor groups may also disagree over how many workers to allow and whether they should be allowed to work temporarily or have the option to remain permanently.
Meissner said there is "pretty widespread acceptance" for the need for more high-skilled workers.
Obama says he wants to "staple" a green card to the diploma of every foreign student who graduates from a U.S. university with an advanced degree in fields such as science, technology and math, a proposal echoed by the Gang of Eight.
At the other end of the labor spectrum, the Gang of Eight aims to reduce illegal immigration by creating a more flexible system that allows more low-skilled workers to enter the U.S. when the economy is growing and fewer low-skilled workers when the economy is slowing.
The Senate panel is also calling for creating a better program for farmers to recruit foreign workers when they can't find enough American workers.
"The difficult issue will be lower-skilled immigration," Meissner said, and developing a system that meets the needs of the labor market and employers but doesn't take away jobs or lower domestic workers' wages.
The concern from labor groups is that businesses will push for expansion of temporary-worker programs that provide low-cost foreign labor and don't give temporary workers the opportunity to gain permanent residency, said Eliseo Medina, secretary-treasurer of the Service Employees International Union, one of the largest unions in the country.
"We need to have a different system than the one we have today," Medina said. "The one we have today has no real rights for workers, and they could wind up being exploited."
Employment verification
Another major obstacle to passing immigration reform will be creating a tougher employee-verification system that requires employers to screen out illegal workers and punishes employers who choose to hire them. Obama and the Senate panel say a major key to reducing illegal immigration is making sure employers don't hire illegal workers.
Civil-liberties groups are concerned that an employee-verification system could lead to the creation of a de facto national ID required for all workers including U.S. citizens.
Businesses groups also have fought the adoption of a mandatory electronic-verification program on the grounds that the current voluntary E-Verify system is costly and ineffective at screening out illegal workers. In Arizona, all employers must use E-Verify to screen the employment eligibility of all new hires.
Business groups also have balked at a mandatory electronic-verification program unless it is coupled with a legalization program that guarantees that the undocumented immigrants many employers depend on can get legal status.
"The question becomes how do you do it so you don't have a lot of false positives, you don't have data that is faulty, and you have a system that works," Sharry said.
Growing optimism
On Feb. 13, the Senate Judiciary Committee will hold a hearing on immigration reform.
Members of the Gang of Eight hope to introduce legislation in the spring.
Obama, who has called immigration reform his top legislative priority, has said he would like to fast-track the issue.
Despite the obstacles, there is growing optimism that political leaders from both parties are more motivated than ever to reach an agreement this year given the overwhelming support Obama received from Latino voters and Republicans' desire to attract them.
"I would love to have the president signing a bill before the legislative recess in August," Medina said.
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