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The Senate immigration bill: Here’s what you need to know

The Gang of Eight (The Washington Post.)

Months after their Jan. 28 announcement of a tentative compromise on immigration reform, the bipartisan "Gang of Eight" has finally unveiled its bill, or at least a summary of the proposal. It includes sweeping changes in treatment of both existing undocumented workers and aspiring immigrants. Here are the key points, culled from summaries in the Post and Politico as well as the actual bill summary, posted by Talking Points Memo here.

Update: The actual bill is out. The post has been updated throughout to reflect new information.

Is there amnesty and/or a "path to citizenship"?

Yes. If you're an undocumented immigrant who arrived in the United States before Dec. 31, 2011, haven't committed a felony (or three misdemeanors), hold a job, and pay a $500 fine and back taxes, then you will immediately gain the status of "registered provisional," allowing an individual to legally stay in the United States without risk of deportation. Registered provisionals wouldn't be able to get any means-tested public benefits. If you've already been deported, you're eligible to apply to re-enter if your parent or child is a citizen or permanent resident, or if you are DREAMer and were deported as a minor (see next section).

After six years, you'd have to renew the status, which is dependent on maintaining a steady work history, having a clean criminal record, and paying another $500 fine.

Four years after that (10 years after initially attaining "registered provisional" status), you could apply for permanent residency (aka a Green Card). That step requires showing constant work history, constant presence in the United States, continuous tax payments, clean criminal record, and knowledge of English and civics, as well as paying another $1,000 fine.

Three years after that you'd be eligible to become a citizen. So the recognition-to-citizenship process takes a total of 13 years and requires $2,000 in fines from each adult affected.

Would anyone get a faster path?

Also yes. DREAMers — or those who entered illegally before age 16, graduated from high school, and have been in the United States for at least five years — would have a quicker path. They would be able to apply for permanent residency after five years and citizenship immediately thereafter, provided they serve two years in the military or complete at least two years of college.

Agricultural workers also would get a chance at Green Cards after five years, but would not be immediately eligible for citizenship, unlike DREAMers.

What would it do on border security?

Six months after the bill's passage, the Department of Homeland Security would have to submit two plans, one outlining a strategy for reducing traffic over high-risk areas on the Mexican border, and another for increasing fencing. The bill appropriates $3 billion for the department to carry out the first plan (through better drone surveillance and more border patrol officers, among other things) and $1.5 billion for it to carry out the latter. The National Guard would be allowed to be deployed to the border, and 3,300 new customs agents hired.

If, by the fifth year the bill is in effect, 90 percent of crossers aren't being apprehended and 100 percent of the border isn't being surveilled, the bill would establish a commission of four border-state governors and add another $2 billion in security funding.

The bill also requires the establishment of an electronic exit checking system at airports and sea ports in order to track the movements of visa holders.

What about employer enforcement?

The bill would mandate employers use an improved version of E-Verify, an electronic system for determining the legal status of current and prospective employees, within five years. Non-citizens would have to have and show "work authorization cards" or Green Cards, each with biometric data embedded so as to prevent forged documents.

The program would be phased in slowly: "Employers with more than 5,000 employees will  be phased in within 2 years. More than 500 employees will be phased in within 3 years. All employers,including agricultural employers, will be phased in within 4 years."

Is the legalization portion linked to increased enforcement?

Yes. Applications for permanent residency would be allowed to start either 10 years after granting of "registered provisional" status or after Homeland Security's enforcement plans, e-verify implementation, and the visa-tracking system are all completed, whichever of the two comes later. So if ten years pass and the Homeland Security enforcement plans aren't judged to have been completed, then registered provisionals would not be eligible to become permanent residents.

What about high-skilled immigrants? Would we let more in?

Yep. The number of H1-B visas, which are designed for high-skilled workers, would increase from 65,000 to at least 110,000, and up to 180,000 depending on employer demand. Employers who use H1-B visa holders for 30 percent or more of their workforce would have to pay new fees. Unlike currently, in which dependents count against the quota, the cap would only apply to the actual number of high-skilled workers. The effect would be an even larger than anticipated expansion of the supply of high-skilled immigrants.

Employers who count H1-B holders as more than 75 percent of their workforce would be banned from hiring more foreign workers starting in 2014. That percentage cutoff would drop to 65 percent in 2015 and 50 percent in 2016.

However some groups would be exempt altogether: "derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in STEM fields; and physicians who have completed the foreign residency requirements or have received a waiver."

What about low-skilled immigrants? Are we setting up a guest worker program?

Yes. A new "W-visa" program for low-skilled guest workers, capped at 20,000, would start in 2015. The cap would rise to 75,000 by 2019. Immigrants would apply at U.S. embassies and consulates in their home countries, and would stay in three-year renewable stints along with their families. If they are unemployed for 60 days or more they would  be required to leave the United States. The workers must be paid the prevailing wage and cannot be employed in metropolitan areas where unemployment is above 8.5 percent barring special exemptions from the Secretary of Homeland Security. Employers cannot fire American workers 90 days before or after the hiring of guest workers.

A new federal bureau, the Immigration and Labor Market Research Bureau, would be charged with determining worker shortages and adjusting those caps accordingly to align with the state of the national labor market, but would not be able to increase the cap above 200,000 a year. Its director would be appointed by the president and confirmed by the Senate, and it would have to present construction employment data every three months and deliver an annual report recommending improvements to immigration programs. It would get $20 million to start and will otherwise be funded by employer fees for participating in the program, and "other fees related to the hiring of alien workers."

Construction companies would be limited to 15,000 workers a year or a three percent of total visas, whichever is lower.

However, a "safety valve" would also be put in place whereby companies could hire guest workers in excess of the cap, provided they pay them higher wages. The hope is that this would encourage workers to look first to American workers who would like accept the same level of wages.

Can guest workers apply for permanent residence?

Yes and no. They're ineligible to apply for permanent residence under "track two" of the merit-based visa system set up in the bill, which applies to "long-term alien workers and other merit-based immigrants" who have been "lawfully present in the United States for not less than 10 years."

However, Michelle Mittelstadt of the Migration Policy Institute tells me that she believes W visa holders are eligible to file for change of status through normal employment/family-based visas or through "track one," which distributes visas through a merit-based point system. She notes that the bill changes the law surrounding renunciation of foreign residences to "enable current W holders to apply for a green card while still maintaining their W nonimmigrant status." That's roughly how H-1B visas work today; while technically a "nonimmigrant" visa, H-1B holders are allowed to intend to emigrate and can apply for a green card through employment or family-based channels.

Note: this section has been updated in light of new information about the bill.

What about farm workers? What's up with them?

In addition to the sped-up, five year process for undocumented agricultural workers to gain permanent residency, the bill also caps the number of agricultural visas to 337,000 over three years. A new agricultural guest worker program would be launched as well. The changes are similar to those in the unpassed AgJOBS bill.

Are there any changes to family-based visas?

Yep. The bill allows an unlimited number of visas to go to parents, children and spouses of U.S. citizens and permanent legal residents. But 18 months after the law takes effect, visas for siblings of citizens and permanent residents would be eliminated, as would visas for adult married children over 30.

Are same-sex partners and spouses eligible for visas?

No, nothing in the bill changes the status of same-sex couples, who are not recognized according to the Defense of Marriage Act.

What about that weird random visa program?

The Diversity Visa, which uses a lottery to distribute 55,000 permanent resident visas every year to natives of countries with low rates of immigration to the United States, would be eliminated starting in 2015. It would be replaced with a merit-based system using a mix of family ties, work history in the United States and strength of work skills. That would start at 120,000 visas per year and then grow to a maximum 250,000, growing by 5 percent every year that there are more applicants than spots and unemployment is below 8.5 percent.