After months of vague talking points about creating a “path to citizenship” versus a “special path to citizenship” versus “amnesty,” the Senate’s “Gang of 8” finally has an immigration bill ready. And, much to the relief of immigration advocates, there is a relatively clear and reliable process for today’s 11 million undocumented residents to eventually become citizens.
That’s good news for the immigrant rights community. But it also means the Republican members of the gang — Sens. Marco Rubio (R-FL), John McCain (R-AZ), Jeff Flake (R-AZ), and Lindsey Graham (R-SC) — have a difficult path ahead convincing a skeptical party that these features are necessary to passing a final bill. Or as one immigration lawyer sympathetic to reform put it to TPM: “Rubio is going to get crucified for agreeing to this.”
Let’s dive in to how it works:
Phase One: Getting Legal
Long before they can apply for a green card or citizenship, the undocumented population will be able to acquire a much more limited legal status — “registered provisional immigrant status,” or RPI for short — allowing them to live and work in the country but not receive any federal benefits. To qualify, they’d have to pay a $500 fine, pass a criminal background check, and show they were in the country before Dec. 31, 2011. In some cases, individuals who have already been deported could return to the United States under this new RPI status if they have a spouse, parent, or child who is a citizen or legal permanent resident in the country or if they would qualify for the DREAM Act.
Once this part of the bill is fully implemented, most of the undocumented in America (and even some not currently in America) will enjoy at least some limited legal status. But the next phase in the path to citizenship is more complex, mostly as a concession to Republican concerns about the bill.
Phase Two: Pulling The Border Trigger
Two groups will be able to acquire green cards and citizenship ahead of the rest of the pack and in simpler fashion: young undocumented immigrants — the so-called DREAMers — and agricultural workers. They can each get green cards within five years and DREAMers can apply for citizenship immediately afterwards.
For everyone else, the path is longer and has more qualifiers. First off, no one in the remaining group can apply for permanent residency and ultimately citizenship until the border security measures go into effect. This is where Sen. Marco Rubio (R-FL) has made the biggest impact on the legislation and he’s gone out of his way to highlight this feature in interviews with conservative outlets in particular.
The bill requires the Department of Homeland Security to release a plan to make the border effectively 90 percent secure and, if they can’t do it, empowers an independent board to make their own recommendations. But the trigger only requires officials to draft and implement a variety of new enforcement measures, it doesn’t require border security to become 90 percent effective in catching illegal crossers before the next phase in the citizenship process. Immigration advocates aren’t happy about the measures, but don’t seem particularly worried that they’ll be an insurmountable obstacle.
Until that trigger is activated, those with the new RPI status are stuck there.
Phase Three: Green Card And Citizenship
So let’s assume the border trigger gets pulled. After today’s undocumented immigrants have spent 10 years in provisional legal status, staying out of trouble with the law along the way, they can apply for a green card.
The big issue is what category they apply in. Republicans working on immigration, including Rubio, have loudly pledged not to provide a “special pathway to citizenship” that only undocumented immigrants can access, saying they instead have to “get to the back of the line” behind legal immigrants. But there really is no “line” most of them can get into right now, so the bill has to create one. And newly legalized immigrants will mostly be the ones who go through it.
Here’s how it works. The bill routes most of the undocumented population through a new “merit based” category of visas. Within this category there are two ways to apply. One is through a point-based system that factors in a variety of qualifications, like long-term employment, education, and family ties. But there would only be between 120,000 and 250,000 of these visas available per year, meaning it could take effectively forever to process 8 or 9 million formerly unauthorized immigrants while also considering green cards for people staying in the United Sates on other visa types.
“If you’re really going to deal with this backlog and you’re really going to deal with the undocumented popualtion in a reasonable amount of time, then there has to be a different allocation,” Marshall Fitz, director of immigration policy at the Center for American Progress, told TPM.
To address this problem the bill creates another section of the “merit based” visa category. This one is for people who did not come through the bill’s new guest worker program who have lived and worked in the United States for 10 years or longer, learned English and U.S. civics, and paid their back taxes. Those standards should include most of the undocumented population once they become eligible to apply and — here’s the most important part — sources familiar with the bill say there is no annual cap on the number of visas that can be granted to them each year through this category. Once they get a green card through the system they can also apply for citizenship in three years, rather than the usual five for most permanent residents. That means it’s possible, in theory, to get the entire undocumented population from legal status to citizenship in 13-15 years.
Does that sound like the “special pathway to citizenship” that Republicans say they hate? It mostly is, but there are a few obscure immigration classes that also fit into the category. This allows GOP lawmakers to plausibly claim that undocumented immigrants are getting into the “back of the line” behind legal immigrants.
“The way they are casting this category [is that] it’s for more than those who get legalized,” Frank Sharry, executive director of pro-reform America’s Voice, told TPM.
One group that stands to benefit are immigrants who have been living in the United States under “temporary protected status,” a classification that lets refugees from countries devastated by war or natural disasters remain in the country until it’s safe for them to return. Most of the people affected are from Central America, although immigrants from some other countries, like Somalia, South Sudan, and Syria, also qualify. There are also a number of Liberians living in the United States under a related protected category. Many of these immigrants have been in the country more than a decade already and would be able to obtain permanent residence through the new program long before the wave of currently undocumented immigrants apply.
“It’s actually a good safeguard in the system for long-staying folks in limbo,” Sharry said.
In addition to these protected immigrants, the same “merit based” category would also use a different set of rules to clear millions of existing green card applications which have glutted up into a massive bottleneck due to annual caps on visas. Like the border security measures, getting these cleared is another precondition to giving the undocumented population green cards. Under the bill, green card applications filed before it passes that have been pending for three years in the employment category or five years in the family category could be expedited this way.