We're only three days into the Senate Judiciary Committee's markup of S. 744, the Gang of Eight's immigration bill, but already 48 amendments to the bill have been adopted. Forty two passed by voice vote, and six by roll call. Many are technical corrections but a few make real, serious changes to the bill. Let's go through them, day by day.
Thursday, May 9
The sponsors' amendment (14-4)
This was offered at the start of markup by the bill's sponsors with the idea of clarifying and tweaking a few things throughout the bill. This is a good summary. Most of it is technical stuff (one part "added a definition of the Northern Border") but there are some real changes.
Notably, funding for the start-up costs of the State and Homeland Security Departments in implementing the bill is increased from $100 million to $1 billion, a requirement that the Secretary of Labor be consulted when determining the cap on agricultural guest workers is added, and biology is added to the list of science, technology, engineering, and mathematics (STEM) fields for the purposes of determining visa eligibility.
All the Democrats on the committee voted for the bill, as did Sens. Orrin Hatch (R-Utah), Jeff Flake (R-Ariz.), Lindsey Graham (R-S.C.), and John Cornyn (R-Tex.). Graham and Flake are in the "Gang of Eight." Ranking member Chuck Grassley (R-Iowa) and Sens. Jeff Sessions (R-Ala.), Ted Cruz (R-Tex.), and Mike Lee (R-Utah) all voted no.
Crossing fees banned (voice vote)
An amendment from committee chairman Patrick Leahy (D-Vt.) banned the imposition of any border crossing fees for pedestrians and passenger vehicles entering by land at the Canadian or Mexican borders.
Informing the Judiciary Committee (voice vote)
An amendment from Grassley added requirements throughout the bill requiring that various reports or notifications be submitted to the Senate and House Judiciary Committees, in some cases in place of submitting them to the Homeland Security committees in each house.
Annual audits (voice vote)
Another Grassley amendment requires annual audits of the Comprehensive Immigration Reform Trust Fund, which funds a number of border security and other measures throughout the bill.
Aid to victims (voice vote)
An amendment from Sessions gives the Department of Homeland Security's (DHS) Immigration Ombudsman (a position created in the bill) the authority to assist individuals and families who have been victims of crime committed by immigrants or temporary residents, or crime committed near the border.
Better data on human trafficking (voice vote)
An amendment from Cornyn, along with Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.), would classify human trafficking as a part 1 violent crime for the purpose of federal assistance to state and local law enforcement, which would require state and local agencies to collect detailed information on it, just as they do with, say, murder. This was backed by the National Hispanic Leadership Agenda.
Private land owner representation (voice vote)
An amendment from Flake would add three private landowners to the Department of Homeland Security Border Oversight Task Force, 2 from the Southern border and one from the Northern border. That brings the Task Force's overall size from 26 to 29.
Annual GAO review (voice vote)
Another Flake amendment would require an annual assessment of the "status and progress of the Southern Border Security Strategy" by the Government Accountability Office.
Protection for children (voice vote)
An amendment from Sen. Dianne Feinstein (D-Calif.) requires that children in the custody of U.S. Customs and Border Protection get health care, adequate nutrition, clothing and bedding, and hygienic products, and are allowed supervised phone calls with family members. This amendment was backed by pro-immigrant group America's Voice, as well as the ACLU and the National Hispanic Leadership Agenda.
Stonegarden reform (voice vote)
Another Feinstein amendment requires that grants under Operation Stonegarden, a DHS grant program meant to help border security but which critics argue has been used as a subsidy for activities having little to do with that purpose, be allocated from a competitive process.
Get the Coast Guard involved (voice vote)
Another Feinstein amendment instructs the Coast Guard to "acquire and deploy watercraft to provide support for border-related maritime anti-crime activities."
Ombudsman details (voice vote)
An amendment from Sen. Mazie Hirono (D-Hawaii) fleshes out a bit more the Immigration Ombudsman position created by the bill. The National Hispanic Leadership Agenda backed this amendment.
An amendment from Sen. Chuck Schumer (D-N.Y.), one of the Gang of Eight, would increase the initial allocation to the Comprehensive Immigration Reform Trust Fund, which funds implementation of the bill (including its border security provisions), from $6.5 billion to $8.3 billion. That money would be paid back through fees and fines, which would, after the initial allocation is paid back, start going into the trust fund. Four Republicans — Lee, Sessions, Cornyn, and Grassley — voted against.
Securing the whole border (voice vote)
Another Grassley amendment strikes all references to "high risk" sections of the border. The bill as written would allow the path-to-citizenship section of the bill take effect when 90 percent of crossers at the high-risk sections of the Mexican border are being captured. This amendment changes that to requiring that 90 percent of crossers on all of the Mexican border be captured before the path-to-citizenship section takes effect. This amendment was opposed by pro-immigrant group America's Voice as well as the ACLU.
Grant accountability (voice vote)
Another Grassley amendment requires regular audits of the grants issued from programs in the bill, by the relevant inspectors general. It requires preapproval of conference expenditures exceeding $20,000 and restricts grants to nonprofits that hold money offshore.
Public defender funding (voice vote)
This Feinstein amendment clarifies that the federal government will reimburse state and local governments for the cost of public defenders and clerical support in immigration-related cases, not just prosecution and detention costs. The ACLU opposed this, arguing that more reimbursement creates perverse incentives, but the National Hispanic Leadership Agenda backed it.
No reimbursement for illegal prosecutions (voice vote)
This Blumenthal amendment bans federal reimbursements for state and local immigration-related prosecution and pretrial detention "if the jurisdictions engaged in unlawful conduct in connection with immigration-related apprehensions." This amendment was backed by the ACLU and the National Hispanic Leadership Agenda.
Family unity in detention (10-8)
This Hirono amendment would require border agents to ask if apprehended individuals are traveling with spouses or children, or whether or not they are parents or spouses. The intent is to try to ensure that families are not separated during the interrogation process, which may, Hirono argues, "make migrants more vulnerable by returning them to dangerous places without their family members."
Critics argued this placed an undue burden on border agents, with Cornyn noting that some areas on the border lack the necessary resources to keep families together in some cases. Every Republican on the committee voted no, and every Democrat voted yes. This amendment was backed by pro-immigrant group America's Voice and the National Hispanic Leadership Agenda.
Expanded reimbursement (10-8)
This Feinstein and Cornyn amendment expands the kind of incarcerations of undocumented immigrants for which state and local governments can be reimbursed, including by adding reimbursement for incarcerating people only charged but not yet convicted with a crime, and for incarcerating people whose immigration status can't be verified. Leahy expressed concern that this would make it easier to game the system.
Ten senators - Feinstein, Cornyn, Graham, Hatch, Sessions, Lee, Cruz, Flake, Schumer, and Hirono - voted yes, and eight - Sen. Dick Durbin (D-Ill.), Sen. Sheldon Whitehouse (D-R.I.), Blumenthal, Grassley, Leahy, Sen. Amy Klobuchar (D-Minn.), Franken, and Sen. Chris Coons (D-Del.) — voted no. The ACLU opposed it, arguing it would provide an incentive for racial profiling, as did the National Hispanic Leadership Agenda. Update: This originally said Hirono voted no and Franken yes; it was the other way around. We apologize for the error.
Better border crossing infrastructure (voice vote)
Another Feinstein amendment establishes a grant program to improve the infrastructure at existing and future border crossings.
Consulting with local governments (voice vote)
This Leahy and Cornyn amendment would require DHS to consult with the Secretaries of Interior and Agriculture, as well as state and local governments, in determining where on the Mexican border to place fencing, and adds flexibility for DHS to not build fencing when they determine that is not the best technology for the area in question. It also clarifies that no fencing will be placed on the Canadian border.
Adding federal judges (voice vote)
This Feinstein, Cornyn, Cruz, and Flake amendment would add eight new permanent district judges in California, Arizona and Texas to help deal with an increase immigration caseloads. This amendment was backed by the ACLU. Update: This originally said the ACLU opposed a second degree amendment to this amendment; the one they opposed was a different second degree offering not included in the final amendment. We apologize for the error.
Tuesday, May 14
No drones in San Diego (voice vote)
This Feinstein amendment limits the use of aerial drones (but not maritime drones) for border protection in California to within three miles of the border.
Don't drop immigrants in war zones (voice vote)
This Coons amendment would bar DHS from conducting deportations in dangerous areas of the Mexican border, and make it consider the time of deportation and ability of shelters in nearby towns when determining where to locate deportations. It also bars officials from confiscating migrants' belongings, requiring all nonperishable items be returned to the immigrant. This amendment was backed by pro-immigrant group America's Voice, as well as the ACLU and the National Hispanic Leadership Agenda.
Technical changes (voice vote)
This Schumer amendment makes mostly grammatical changes, including clarifying that the prevailing wage for the W guest work visa will be set by the Secretary of Homeland Security, and that money won't be taken away from existing travel promotion programs. Nothing substantive in the bill is changed.
Hotline for displaced workers (voice vote)
This Whitehouse amendment orders the Department of Labor to set up a hotline for workers who feel that they have been displaced from their jobs by H-1B visa recipients (a.k.a high-skilled guest workers) to lodge complaints, and requires the inspector general of the department to report back to Congress every five years on those complaints.
H-1B job listings (voice vote)
This Grassley amendment changes a section of the bill which requires employers recruiting for H-1B positions to post their job offerings to a Web site run by the Department of Labor. Grassley requires additional information in the listings, such as the name of the position offered. This is intended to crack down on fraudulent uses of the program.
STEM funding (voice vote)
This Hatch amendment, offered with Klobuchar and Coons, would double the fee required for labor certifications to get green cards, and use the money to create a fund to help states and minority-serving institutions expand STEM training for minority students, women, and economically disadvantaged students.
Access for Africans and Caribbeans (voice vote)
This Schumer amendment would ensure access to nonimmigrant visas for residents of certain African and Caribbean countries, adding 10,500 new visas for those applicants, to replace the diversity visa program that's being eliminated in the Gang of Eight bill.
Videoconferencing for immigration interviews (voice vote)
This Klobuchar, Hirono, and Lee amendment directs the secretary of State to conduct a pilot program in using videoconferencing to interview overseas visa applicants, rather than interviewing them in person at a consulate or elsewhere. This is particularly intended to boost tourism. Despite passing by voice vote, Feinstein and Sessions voted no and had their votes registered.
This Sessions amendment requires in-person interviews for visa applicants from areas that are of special security concern, or who individually have been tagged as persons of concern, or who are applying for a visa for which more scrutiny is judged to be warranted.
Schumer proposed an amendment to this amendment which would, instead of that, simply provide terrorism database information to consular officials for use in determining visa eligibility, and bar people on any watch lists from entry absent intervention by the secretaries of Homeland Security and State (Feinstein changed the amendment to require the national security advisor and director of national intelligence sign off as well).
The Schumer version passed, 10-8, with all Democrats voting yes and all Republicans voting no.
Medicaid for Micronesia (voice vote)
This Hirono amendment allows naturals of Compact of Free Association (COFA) countries — to whit, Marshall Islands, Palau, and Micronesia – to receive Medicaid. COFA residents are allowed to live and work in the United States for an unlimited period of time, and many do so in Guam and Hawaii, which has driven up health-care costs there, without any federal contribution. Thus, the Hirono amendment would ease the fiscal burden on her home state of these migrants considerably.
Accreditation for foreign students (voice vote)
This Grassley amendment requires accreditation for schools whose students apply for student visas, and bars such visas for flight schools that don't have DHS and FAA approval. Two of the 9/11 hijackers had student visas associated with flight schools.
Visas for Sweden (voice vote)
This Schumer amendment allows for guest worker visas for jobs that require specialized language training that's difficult to find in the United States. Schumer provided the examples of Denmark, Finland, Greece, Iceland, the Netherlands, and Sweden as countries whose native languages are not widely spoken in the United States and where language-related work may necessitate the use of guest worker labor.
Help for battered spouses (voice vote)
This Klobuchar amendment allows abused spouses who are present on their spouses' visa to petition for a separate visa, so that they are not deported if they report the abuse. This amendment was backed by pro-immigrant group America's Voice.
Better student visa data (voice vote)
This Grassley amendment requires that the database for student visas be integrated with customs databases, to enable border agents to catch people entering on expired visas. The student visa program would be suspended if the database integration is not completed within 120 days of the bill's passage. One of the Boston Marathon bombing conspirators was able to enter on an expired visa earlier this year due to this problem.
Fishing crew rotations in Hawaii ports (voice vote)
This Hirono amendment allows Hawaiian U.S. flag fishing boats, which are currently required to do crew rotations in foreign ports, to do so in Hawaii rather than sailing all the way to Christmas Island.
Thursday, May 16
This Hirono amendment makes residents of Hong Kong eligible for visa-less entry into the United States for tourist stays of 90 days or less, a privilege for which residents of many European countries, South Korea, Taiwan, Japan, Australia, and New Zealand are currently eligible. Sessions objected, arguing that China is among the worst violators of international immigration norms in the world, and while a distinct area, Hong Kong is a part of China. Sessions, Cruz, Grassley, and Cornyn voted against.
Regional centers for investor visas (voice vote)
The EB-5 visa program provides a path to permanent residency for foreign investors who put a significant amount of capital into the American economy. The Leahy amendment makes a variety of changes to the program, notably making the "regional center" program, a pilot which makes EB-5s available to investors who focus on a specific geographic region, permanent.
Hire existing guest workers (voice vote)
This Schumer amendment calls for the creation of a registry of W visa holders (a.k.a low-skilled guest workers) so that, in case some of those people are unemployed, people looking for low-skilled labor will hire existing guest workers before bringing in new guest workers. If unemployed guest workers do not have a job for 60 days, under the underlying bill they're required to go home, so the Schumer amendment only applies to that 60-day period.
Visas for start-up incubator participants (voice vote)
This Whitehouse amendment expands eligibility for the INVEST Visa, a program created in the bill for would-be entrepreneurs and investors, to those who are participating in start-up incubators like Y Combinator or Betaspring.
Protection for E-Verify false positives (voice vote)
This Franken amendment calls for annual audits to determine the error rate for E-Verify, the legal status verification system that the immigration bill makes mandatory, and if the rate of false positives (that is, legal residents who are marked as illegal) is above a certain rate, then the maximum fine for first-time offender companies is reduced to account for the possibility of system error. The ACLU supported this amendment.
Weekly E-Verify reports (voice vote)
This Grassley amendment requires the director of Citizenship and Immigration Services to submit weekly reports to the Assistant Secretary of Homeland Security for Immigration and Customs Enforcement on the individuals whose legal status couldn't be verified through E-Verify that week, including all those individuals' names, Social Security numbers, and their last employer. The ACLU opposed this amendment.
Notification for E-Verify lookups (voice vote)
This Coons amendment, co-sponsored by Lee and Franken, requires the notification of individuals when their E-Verify records are accessed. The ACLU supported this amendment.
Preventing theft of children's identities (voice vote)
This Grassley amendment allows parents to limit the usage of their children's Social Security numbers by the immigration system so as to prevent identity theft.
Small business advocate (voice vote)
This Franken amendment establishes the Office of the Small Business and Employee Advocate within Citizenship and Immigration Services. The office would be charged with protecting small businesses and employees from false positives on E-Verify and other problems arising from immigration enforcement. The ACLU supported this amendment.
Require pay stub disclosure (voice vote)
This Blumenthal amendment would classify as an unfair immigration-related employment practice the withholding of pay stubs and other pay and employment records by employers from employees. The ACLU supported this amendment.
Parent and guardian permission for minor labor (voice vote)
This Grassley amendment requires underage workers' attestation of identity for immigration enforcement purposes be made by their parent or guardian, not just anyone over 21.