Wall Street Journal
By Sara Murray
April 9, 2013
Immigrants in the U.S. illegally would not gain green cards under a bipartisan Senate bill until law-enforcement officials are monitoring the entire southern border and stopping 90% of people crossing illegally in certain areas, according to people familiar with the plan.
The border-security proposal, part of a broader immigration bill being written by eight senators, sets several goals that would have to be met before any of the estimated 11 million immigrants in the U.S. illegally could apply for permanent legal residency, also known as a green card, according to the people familiar with the Senate talks. Meeting all the goals is expected to take 10 years.
In a major change for businesses, all employers would be required after a five-year phase-in period to use the government's E-Verify system, which screens for illegal workers. E-Verify now is largely voluntary, though some states require it. Some 409,000 employers had enrolled in the program as of last year, the federal government says, a tiny fraction of the estimated six million private U.S. employers, many of which have only a handful of employees.
Along the U.S.-Mexican border, 100% of the border would have to be under surveillance, and law enforcement would have to catch 90% of those who cross the border illegally at "high risk" sections—a term that people following the Senate talks did not define. In 2010, the Department of Homeland Security reported that only 44% of the border was under operational control, meaning officials had the ability to detect and block illegal activity there.
In addition, the government would have to create an electronic system to monitor everyone who exits from the U.S. through airports or seaports, in an attempt to identify people overstaying their visas. People who overstay visas account for a large share of illegal immigrants, as much as 40% by some estimates.
Once all of those measures are met, immigrants could begin qualifying for green cards. In the meantime, the legislation would grant probationary status to illegal immigrants who passed a criminal-background check, paid a fine and met other conditions. The legislation, which would also set special rules for agricultural workers, is not fully drafted and has not yet been released publicly.
Setting tougher border-security measures as a prerequisite to offering legal status to illegal immigrants could ease the way for many lawmakers, particularly Republicans, to support the immigration-law overhaul. Many Republicans have said the border must be secure before they would consider any change in the status of illegal immigrants.
Meanwhile, advocates for immigrants and some Democrats worry that stringent border-security requirements would create an indefinite delay for illegal immigrants seeking legal status. Frank Sharry, executive director of the group America's Voice, said the Senate plan seemed poised to include the "toughest border-security requirements ever."
"It raises the question of whether it's actually achievable, and whether it will end up thwarting the path to citizenship for 11 million people," he said. "I think there will be a lot of heartburn when the bill is released."
The measures laid out in the Senate plan are similar to a border-security bill unveiled Tuesday by Sen. John Cornyn and House Homeland Security Committee Chairman Michael McCaul, both Texas Republicans.
How to determine whether the border is secure is a contentious issue in the debate over overhauling the nation's immigration laws. President Barack Obama and other Democrats have argued that border security has already improved, but the Senate plan would push the Department of Homeland Security to go further.
Republicans say they want to prevent another wave of immigrants from entering the U.S. illegally. Many in the GOP cite a 1986 immigration law legalizing millions without, they say, adequately improving border security.
Mr. Cornyn, who has been skeptical of immigration-overhaul efforts, said he would be pleased if the eight senators writing the new legislation adopted security measures similar to ones he put forward. "I would be favorably impressed if they embraced this," Mr. Cornyn said. But his bill could also offer an alternative to GOP lawmakers who want to sign on to a measure boosting border security without offering legal status to illegal immigrants.
How tough the security measures prove to be will depend on the details of the legislation. Lawmakers will have to define, for instance, "high-risk" areas subject to the 90% apprehension requirement. The border-security targets will also depend on how lawmakers define requirements for surveillance, also known as border "awareness."
The standards could change over time or prove to be subjective. The Department of Homeland Security would be charged with collecting the data.
The 90% apprehension rate, technically referred to as the effectiveness rate, includes people who turned back after entering the U.S., as well as people detained. The Border Patrol estimates the total number of illegal crossings based on agent sightings, camera monitoring and referrals from other credible sources.
It is hard to know if apprehension rates are tallied accurately, said Thad Bingel, partner at Command Consulting Group and a former Customs and Border Protection official. "You can detect something and not know for certain if it turned back or if it got past you. That's what makes it a really tough challenge." He said that even if the U.S. has full surveillance and control of the border one day, that may not hold true a month later.
"The bad guys are sophisticated, too," he said. "You may one day have 100% awareness, and then they'll figure out where your holes might be."
In recent years, illegal border crossings have fallen as a result of the tepid U.S. economy, stronger border enforcement and other factors, several studies have found. The federal Government Accountability Office said apprehensions fell in fiscal 2011, mirroring a decrease in estimated illegal entries.
The Senate plan lays out three steps aimed at meeting the security goals, people familiar with the proposal said. Homeland Security officials would be required to report to Congress within six months about what resources and technology are necessary to meet the 90% apprehension rate and where additional border fencing should be installed. After that report, the 11 million illegal immigrants in the U.S. would become eligible for provisional legal status.
If border-security targets weren't met after five years, a commission of border-state officials—potentially governors or attorneys general—would make recommendations to meet the 90% apprehension goal. The legislation designates money to implement the commission's recommendations.
Illegal immigrants would be able to apply for green cards after 10 years only if the border-security targets had been met and the visa exit and full E-Verify systems have been implemented, according to the two people familiar with the plan.
"Twenty years could pass by, and if there's no E-Verify, not one person is going to get their green card," said one of the people familiar with the plan.
The price tag for the additional security measures is unclear, but it is likely to be costly. The U.S. government spent $18 billion in fiscal 2012 on federal immigration enforcement, more than all the other main federal law-enforcement agencies combined, according to the nonpartisan Migration Policy Institute.
Senators are hoping to offset some security costs with additional revenue from fines and fees.
"We do not intend to have the proposals that we are enacting be additional costs to the taxpayers of America," said Sen. John McCain (R., Ariz.), a member of the Senate group working on immigration.
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