No Easy Path to Immigration Reform
Senate's Comprehensive Proposal Raises Concerns About Implementation

By Spencer S. Hsu
Washington Post Staff Writer
Sunday, May 20, 2007

In vowing not to repeat the mistakes of the country's 1986 amnesty, Homeland Security Secretary Michael Chertoff said late last week that the Senate immigration overhaul "put workability front and center," promising to secure U.S. borders and workplaces and making the economy more competitive.

But many aspects of the proposal pose enormous implementation challenges, whose consequences would be felt not just by an estimated 12 million illegal immigrants but by every U.S. employer, worker and new legal immigrant in coming years.

Changes would require careful calibration to meet changing labor market needs and human responses, all on a scale never before attempted, said immigration lawyers, business lobbyists, former U.S. officials and policy analysts.

In some ways, border security improvements that would have to be made by a December 2008 deadline are the easy part, according to Dawn M. Lurie, bar liaison for the American Immigration Lawyers Association. The U.S. Citizenship and Immigration Services agency (USCIS) has been "overburdened and pretty much dysfunctional," she said.

"I read this [bill] and say this is hysterical. How is it going to be implemented? It's crazy," said Lurie, who praised the bill's general intent.

The Senate measure requires that DHS in 18 months expand nationwide to all 7 million U.S. employers an improved version of a program used voluntarily by 6,000 companies to check Social Security numbers against government databases, to weed out illegal workers.

However, a pilot program was prone to false alarms, with as many as 20 percent of noncitizens and 13 percent of citizens sent for follow-up visits to immigration offices. A new version is supposed to help employers verify that document holders are who they say they are by letting them download digital photographs, but it may not be entirely workable in a massive deployment, said Laura Foote Reiff, a lawyer with Greenberg Traurig who represents the Essential Worker Immigration Coalition of service industries.

"It's huge," Reiff said. "It's not just a matter of them having the capacity to do it and the staff to handle this. It's also employers having the notice they need to train their people to get whatever equipment they need to use the new system, and to work out the kinks."

What's more, in three years all companies would have to recheck identification and Social Security documents for all 140 million U.S. workers, including citizens.

Security mix-ups that keep travelers from boarding airplanes could pale in comparison with database problems that block Americans from their work.

"If you tell me you can get this right 99 percent, from a policy perspective, that's fantastic," said Deborah W. Meyers, senior analyst at the Migration Policy Institute. "The challenge is that 1 percent is an awful lot of people."

Meanwhile, DHS would be gearing up to launch the biggest pieces of the plan -- a "Y visa" for 400,000 temporary workers and a "Z visa" for up to 12 million illegal immigrants who entered the United States before the start of this year.

The Y visa for guest workers would be good for two years and could be renewed three times, as long as the worker leaves the country for a year between renewals.

Under the four-year renewable Z visa program, employed illegal immigrants could apply for a temporary permit, then stay in the United States after paying a $5,000 fine and a $1,500 processing fee and passing a criminal background check. Heads of illegal-immigrant households would have eight years to return to their home countries for a chance to apply for permanent residency for household members.

Both programs have some unknowns, and size is one of them. In 1986, only about 3 million immigrants applied for legal status.

"How do you register 10 million people in 18 months?" Meyers asked.

Also, before the proposed eight-year deadline for the Z visa program arrived, Congress would require that DHS clear its waiting list of 4 million applications by legal immigrants for visas to reunite relatives, dating to January 2005.

To do that, the government projects having to ramp up the issuance of family-preference visas by 440,000 a year. By comparison, USCIS now processes about 1.1 million green-card requests a year.

Requiring workers to come and go also would disrupt companies and burden immigrant families, said David W. Leopold, an officer of the immigration lawyers group.

"What's the incentive for somebody to leave and come back?" he said. "The more complex it is, the more difficult it will be for people to qualify, which will lead to the same sort of unsolvable illegal population problem that we have now."

Performing security checks also would be difficult. Of 2.7 million names of pending USCIS applicants resubmitted for checks against FBI databases at the end of 2002, 440,000 remain unresolved, the FBI has said.

In one of its most significant proposed changes, the Senate plan mandates a move -- after the family waiting list is cleared -- to awarding visas using a point-based merit system based on education, English proficiency and job skills rather than family relations.

While the change is politically contentious, it also could pose "a crapshoot for employers," said Carl W. Hampe, a Washington lawyer and former Senate Judiciary counsel who helped draft the 1986 law. Hampe said lawmakers rejected a point system back then, concerned that it would be too rigid for Congress and immigration agencies to adjust to market changes.

William Yates, former head of operations for USCIS, said the task would be made more difficult by growing pains in DHS.

"Can it be implemented? Yes. . . . Is it going to be difficult? Yes," Yates said. "And is it going to be more difficult because it's such a new department? Yes."

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