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Sen. Rubio's immigration plan under inspection

Solutions should promote civic participation and integration

U.S. Sen. Marco Rubio's (R-FL) plan to introduce a bill to provide legal status—but not citizenship—for undocumented youth ran into an obstacle when Speaker of the House John Boehner (R-OH) announced on April 26 that such a proposal would not pass his chamber. As Speaker Boehner put it, "We're operating in a very hostile political environment and to deal with a very difficult issue like this I think would be difficult at best." Nevertheless, Rubio has been making a big push for his proposal, talking to reporters, members of the Congressional Hispanic Caucus (who, afterward, could only muster a bland statement saying that, "we look forward to learning more about his plan"), immigration advocates, and DREAM Act-eligible students.

Our desire for bipartisan engagement on immigration policy reform leaves us hoping that Rubio can, in fact, lead his party out of the wilderness on this issue with a smart policy that advances the nation's interests. Given the complexity of immigration law, we will withhold final judgment on the wisdom of Rubio's proposed policy until the bill's actual text can be reviewed.

In the meantime, however, the media coverage generated by the senator's efforts to pitch his bill, along with his own public and private statements, has provided enough of a window into the proposal to raise some early red flags. As there is no written bill at present, and the devil is, as always, in the details, below we offer what we know about what might be included in the bill and explain the real-world concerns created by those provisions.

What we know (or think we know) about the bill

Rubio has voiced opposition to the DREAM Act—a bipartisan bill from its inception more than 10 years ago—because it contains a legal mechanism that would allow youth brought to the United States before age 16 to earn permanent residence and eventually citizenship by attending college or the enlisting in the military. Rubio has proclaimed that such a mechanism equals "amnesty" and is therefore unacceptable to Republicans. Still, he explains,"I do support, and have consistently supported … the notion that we need to accommodate these kids who, through no fault of their own, find themselves in this legal limbo."

He addresses his "amnesty" concerns in his bill by allowing undocumented youth who meet DREAM Act-like criteria to receive a newly created nonimmigrant visa—a temporary visa—instead of permanent residence. If they subsequently satisfy DREAM Act-like requirements—attending college or performing military service, for example—they would be eligible to remain in the United States and maintain lawful status. The new nonimmigrant visa that Rubio contemplates would be renewable in perpetuity (it, in other words, is basically a permanent temporary visa) and would authorize the beneficiaries to work and travel legally. 

The 'amnesty' canard

In important respects Rubio's bill would provide the same benefits as permanent residence—i.e., a "green card." It would redress the central real-world impediments confronting these kids by ending their fear of deportation and making it lawful to work, drive, and travel out of the country. This makes it highly appealing to the kids who have been traveling roads with nothing but dead-ends ahead.

But it also makes it exceedingly difficult to understand why the DREAM Act amounts to "amnesty" and Rubio's proposal does not. Both approaches would create a new mechanism to legalize undocumented youth. Both approaches would authorize the beneficiaries to work and travel freely, which they currently cannot do. Both, in other words, provide substantial benefits to individuals not currently entitled to them. Under his (in our opinion, misguided) "amnesty" test, it is hard to see why his proposal passes while the DREAM Act fails.

Distinctions that matter

The conceptual distinction that leads Rubio to conclude that granting one set of benefits amounts to amnesty, while granting another very similar set of benefits does not, is elusive at best. But the practical consequences of this definitional hair-splitting are significant.

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By providing a way for these kids to earn permanent temporary visas but not permanent residence, many or most of them will effectively be blocked from ever becoming citizens. Rubio has assured us that there will be no "bar" to citizenship—but there will also be no independent path to permanent residence.

The distinct advantage of permanent residence, however, is that after a number of years, the individual can apply for naturalization and—upon showing good moral character, command of the English language, and knowledge of basic American civics—become a full citizen. With no specific pathway to permanent residence, this bill would leave to luck and chance the possibility of ever gaining citizenship.

Individuals in this new nonimmigrant status would have two avenues to permanent residence: sponsorship by a close relative (in all likelihood via marriage) or sponsorship by an employer. But our legal immigration system is woefully backlogged, with waiting times stretching into the decades for most green cards.

So how long would it take eligible young people to receive citizenship under Rubio's proposal?

Employment-based immigration

Although there are a number of employment-based visa categories, the EB-3 category—for "skilled workers, professionals, and other workers"—is the most likely category under which eligible young people could obtain a green card. But eligibility for this category requires a college degree, sponsorship by an employer, and a finding by the U.S. Department of Labor that there is no qualified and available American worker able to perform the job.

Take, for example, an immigrant from Mexico. After a determination of eligibility by the departments of Homeland Security and Labor, the individual would currently need to wait six years before a green card became available. After receiving employment-based permanent residence, an immigrant must wait another five years to apply for citizenship, for a total waiting time of at least 11 years. For an immigrant from India, the wait is even longer—10 years for permanent residence, and an additional five years for citizenship.

These waiting periods are only based on current backlogs. Each month the State Department issues a Visa Bulletin showing current visa availability. As of May 2012, for example, to receive an EB-3 visa, an immigrant from Mexico would have to have applied prior to May 1, 2006. But because the number of available visas is fixed on an annual basis (with just more than 40,000 visas given out to the EB-3 category) the visa availability date fluctuates based on demand.

This means that while it might currently take six years to receive a green card for people who applied in 2006, with increased demand—say, for example, from a new crop of young people eligible through Rubio's plan—it will take far, far longer. If Rubio's bill provides legal status to 1 million to 2 million individuals, the demand on this visa category will increase exponentially, even if only a portion of those individuals seek permanent residence through this portal.

Family-based immigration

Of course, in addition to employment sponsorship, nuclear family members can also sponsor relatives for green cards. The most direct path to legal permanent residence and eventually citizenship is marriage to a U.S. citizen because there are no annual numerical limitations. But do we really want to make these children's futures and full integration to American society contingent on their marriage to a citizen?

If the young person marries a legal permanent resident (i.e., a green card holder) instead of a U.S. citizen, under the current backlogs he or she would have to wait at least three years for a visa to become available and another five years for citizenship for a total waiting period of eight years—at the absolute minimum.Those backlogs, however, would surely swell significantly (meaning much longer waiting periods) with the increased demand on the category that would result from legalizing this group of young people that Rubio's bill addresses. But even if eight years, 10 years, or even 20 years of waiting sounds like a reasonable price to pay for their parents' transgressions, it is still contingent on their getting married.

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What does this say to, for example, gay and transgender youth who, even if they live in a state that has legalized gay marriage, cannot receive a green card because of it? What about people who want to get married but can't find a spouse? What about undocumented youth who have married each other? To be sure, there are other ways to obtain a family-based visa, but these take far longer and are less likely to be available to an undocumented youth.

Political detour from good policy

Instead of a clear road forward, then, Rubio's plan would lead a significant population into a nonimmigrant limbo for decades or even for life. For a population of young people who have been wholly without protection for most of their lives, the prospect of any type of legal status that allows them to pursue their dreams is desperately tantalizing. But to consign hundreds of thousands of people who are American in all but their papers to an indefinite, potentially nonexistent path to permanent residence or citizenship because "that's all the politics will bear" is deeply cynical.

Even accepting that this is a good faith effort to break political gridlock around this issue, the end result subverts the nation's interest in a well-integrated, fully participatory citizenry. Without citizenship these individuals will never be able to vote, gain security clearances needed for any number of jobs, run for office, or even obtain a U.S. passport and the international protections that it accords. Going down this path will ultimately fracture, not unify, our country.


To be certain, we strongly believe that half a loaf is better than no bread at all. We certainly won't reject a half loaf without inspecting it, especially given how hungry we are for reform. But whether the bread is poisonous or nutritious depends on the actual ingredients and whether it is fully baked. We look forward to seeing the details of Sen. Rubio's proposal—and who he has in the kitchen with him.

Bottom line: Show us the bill, and show us the votes. And then we'll talk.

This article was published by the Center for American Progress.

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have your say   

3 comments on this story

May 7, 2012, 10:26 am
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We have a solitary way in returning the power to the American people, is to retire the majority of Democrats, Liberals and Republican politicians, and give that influence to the Constitutional TEA PARTY leadership. Under Obama we have seen the U.S. deficit rising to an almost fanatical 16 trillion dollars. In Sen. Harry Reid’s party no move towards a balanced budget. Then both parties have deliberately ignored the astronomical $113 billion dollars a year, pander to the 20 plus million illegal migrants and immigrants already settled here. Our only real chance to stop the illegal invaders is adopting more Tea Party Senators and Representatives. Millions of demoralized Americans of different racial make-ups, religions and political parties have joined the Tea Party that represents all citizens, permanent residents whether of Hispanic, Latino, European, and Asian, Pacific Rim or any part of the world’s population who came here legally.

May 7, 2012, 10:24 am
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Senator Marco Rubio has his own plan for the Dream Act, other than the very incendiary law that Democrats have in mind. For any realistic chance of the Dream Act gaining passage in Congress, certain provisions must be in effect. The central government has to enact a nationwide mandatory E-Verify program, that Chain Migration must be rescinded from immigration law, that only children below the age of ten would be considered and that all recipients to obtain a path to citizenship, must depart the country and apply for a entry at an Embassy, as every other patient immigrant must do. A larger majority of the Tea Party members would also insist that the Birthright Citizenship law be amended, so no pregnant illegal alien mother or parents could take advantage any more with their child/children getting instant citizenship. That no baby/infant should become a taxpayer’s burden, unless one parent is a U.S. citizen. Over the years this law has become mutated, and should not be a foothold, for every illegal migrant or immigrant who smuggles themselves into America to gain admittance to welfare and public assistance. These programs should only be available to citizens, naturalized citizens and green card holders. 

That the farming and agricultural commerce have an obligation to pay the benefits for their labor and not the state’s taxpayers.  There will no importation of migrant poverty anymore, by cutting off access to welfare, food stamps, and section 8 housing programs. Taxpayer doesn’t need or should we accept any new low skilled workers, instead we must necessitate in supplying our own citizens with more occupational programs.  Further we must safeguard our voting system which has been compromised by the far left, its Liberal associates, Democrats and groups like ACORN that became a vital factor of a growing number of state requiring official ID to vote. Illegal aliens are voting and will again in local, state and federal elections and this dishonesty must be ended. Another set of regulations to amend, would be a careful examination of the current visa system allowing around a million legal immigrants annually into the U.S. No further violation can be tolerated from businesses and we should only permit the highest intelligence in engineering, the sciences, mathematicians and computer technology professionals to immigrate.

May 7, 2012, 10:22 am
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Illegal immigration must become a thing of the past by securing our border fences. Business that intentionally ignores E-Verify should face harsh sanctions, including prison.  Elected officials, who allow such provisions as Sanctuary City ordinances, should be punished and government legislators should sever funds to these perpetrators. All federal and state legislators, governors, majors, police chiefs should be put on notice, that voters will unseat them, specially the Tea Party members. Any illegal alien invaders of this sovereign country, should be prosecuted as a Felony, not a civil infraction, with ID theft or Voter Fraud should be mandatory prison sentence, with no exceptions.

America is bleeding badly from years of neglect by both political parties and pampering of foreign nationals cannot be accepted any more as the norm. Internal enforcement is more urgent than ever before, because of supporting illegal aliens is skyrocketing and taxpayers are on the hook. Illegal aliens have also found a way, to obtain $4.6 billion dollars annually by defrauding the IRS and the taxpayers, using non-existent children tax credits. Elections are no longer safe as Democrats and their less honest followers are participating in voter fraud. We either need a national ID card or that all voters must possess a government picture ID for proof of who they are? If you cherish your freedoms from the corruption in Washington that benefits all of us, we need a balanced tax system with no subsidies, a right to drill on the Peoples National land and sea for plentiful reservoirs of oil, natural gas to alleviate our out-of-control deficit. No more government bail outs for the friends of the White house. Throw out all the profiteering lawmakers and by cleaning house, put recognizable TEA PARTY leaders in their place. Voters need to demand from Congress, specifically from GOP House speaker, John Boehner of Ohio and Dave Camp of Michigan, as the Chairman of the powerful Ways and Means Committee to stop blocking the 50-state E-Verify bill.  Call the central switchboard at 202-224-3121 Washington, DC. For further information on this crisis subject, check with NumbersUSA website, where even Congress consults on immigration matters.

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