That gap worries many reform proponents, who fear that the system would leave millions living in the shadows without legal protection. They would also be subject to harsher workplace requirements and enforcement measures included in the plan.
“We are very disappointed with that number, because we really want to reform the system once and for all and make sure we legalize all people who are not committing crimes,” said Gustavo Torres, executive director of CASA of Maryland, an advocacy organization.
The bipartisan legislation that passed the Senate last month would set up a 13-year process toward citizenship for undocumented immigrants, including mandatory fines and other requirements. The Congressional Budget Office projected that 8 million immigrants would attempt to gain citizenship under the plan but that an additional 3.5 million would not qualify or would decide not to pursue it.
There is also no guarantee that those who begin the process will reach the goal of becoming naturalized. The Social Security Administration estimates that 400,000 of those who gain provisional status would drop out within six years because they would not meet the financial requirements.
The question of how many immigrants attain citizenship could be crucial to the success of an overhaul. When President Ronald Reagan signed the 1986 immigration bill, about half of the nation’s 5 million undocumented immigrants gained legal status. The other half became the base for the current undocumented population.
“The whole point of fixing the system is to do it in a way that improves our country by ending this system of second-class citizenry,” said Ana Avendaño, director of immigration at the AFL-CIO, which supports a path to citizenship to help ensure that employers do not exploit unauthorized immigrants for lower wages. “We do not want to create arbitrary conditions that re-create the exact same problem we’re trying to fix.”
Senate negotiators emphasized that the comprehensive immigration bill, which was approved by a 68 to 32 vote, was crafted to be as inclusive as possible, given Republican demands for financial penalties and other requirements.
“This was the best possible outcome in terms of creating a tough but accessible path to citizenship that will address the 11 million living in the shadows,” said Sen. Charles E. Schumer (D-N.Y.), a key architect of the legislation.
In the GOP-controlled House, leaders have said they will not take up the Senate bill and will instead pursue smaller-scale bills that do not include a path to citizenship. Some advocates fear that the House would further limit the number of immigrants eligible for legal status if it takes up that issue.
White House spokesman Bobby Whithorne said the Senate bill represents a compromise the president is comfortable with. “Under the Senate bill, we believe that a vast majority will be eligible to earn citizenship if they choose to follow the rules, pay a fine, pay taxes, obey the law and get a background check,” he said.
Who would not qualify
Most of the immigrants who would not qualify under the bill fall into three categories: those convicted of a felony or more than two misdemeanors; those who cannot meet the work and financial requirements; and those who arrived in the United States after Dec. 31, 2011.
There are hundreds of thousands more immigrants who qualify for provisional legal status but will choose not to pursue it, analysts said. That includes those who do not understand the process, those who are fearful of being deported or those who do not plan to remain in the United States for the rest of their lives.
The federal analyses of how many immigrants would pursue citizenship are based partially on government data, but much uncertainty remains. For example, although experts said that 500,000 to 700,000 people entered the country illegally after the 2011 cutoff date, that number is growing each day.
Some immigration proponents said the legislation includes arbitrary barriers that exclude too many immigrants.
For instance, felony statutes vary by state, meaning that a person convicted of a felony in one state might not be considered a felon in another. Applicants for legal residency and citizenship must show that they have been continuously employed, with gaps of no more than 60 days at a time — which could be difficult in a weak economy.
The fees required to gain provisional legal status — $500 per person at the start, escalating to at least $2,000 over 10 years — could be a barrier for poorer applicants.
Perhaps most arbitrary of all, immigration advocates said, is the cutoff date, the product of extensive negotiations this spring.
Senate aides said Democrats wanted to allow all immigrants who entered the country before the date the bill becomes law to be eligible for the path to citizenship. But Sen. Marco Rubio (R-Fla.) countered with a deadline set five years prior to the enactment of a new law, arguing that only immigrants who had established deep economic and social ties deserved to pursue full legal status.
The December 2011 date represents a compromise roughly in the middle, assuming Obama were to sign the law by the end of the year, aides said.
“If Republicans are going to take a political risk by voting to legalize, they might as well go all the way,” said Kevin Appleby, migration policy director at the U.S. Conference of Catholic Bishops, which supports a path to citizenship. “It’s not like they get political credit because 3 million didn’t get legalized and 8 million did.”
Compromise splits family
Some immigration analysts said the Senate compromise is better than the one struck in 1986, when lawmakers decided that those who entered the country after 1982 would be ineligible.
“This is a balancing act. You’ve got to reconcile a set of tensions and contractions. They’ve done so pretty well,” said Doris Meissner, who served as Immigration and Naturalization Services commissioner in the Clinton administration.
Among those who would be left out is Yessenia, 31, who left a violent town in El Salvador and entered the United States illegally in April with her 17-year-old brother and 4-year-old daughter.
After paying $21,000 for human smugglers to help negotiate the month-long trip, Yessenia said she was caught by immigration authorities in Houston. They sent the three to live with her mother in Montgomery County while she awaits a court date this fall.
Yessenia’s mother, who has lived in the country illegally for eight years, would qualify for legal status under the Senate bill. But Yessenia and her brother and daughter would not. If they are sent back, she said, she fears that her brother will be forced into one of the violent gangs controlling her home town.
Speaking through a CASA of Maryland interpreter on the condition that her last name not be used, Yessenia said, “Even people who have been here for less than a year deserve a chance.”