Summary of All Amendments Considered to S. 2611

Amendments that Passed:

Salazar (D-CO) (# 3994) (side-by-side to failed Isakson #3961)-would prohibit implementation of Titles IV and VI of the bill until the President determines that implementation of those titles would strengthen the national security of the United States. Passed 79-16.

Bingaman (D-NM) and Feinstein (D-CA) (# 3981)-would lower the annual numerical cap for H-2C guestworkers from 325,000 to 200,000 and eliminate the annual market-based escalator. Passed on voice vote (after rejecting 18-79 a Motion to Table (kill) the provision).

Kerry (D-MA) (# 3999)-would allow the Secretary of Homeland Security to deploy up to 1,000 additional border patrol agents if the governor of a border state declares an international border security emergency and requests additional agents. In addition, it would require at least 100 additional helicopters and 250 power boats, as well as training for their use, and one police-type vehicle per every three border patrol agents, with each vehicle having a portable computer. The amendment also would require that all agents have a two-way, clear and encrypted radio, a GPS device, night vision equipment when applicable, high quality body armor, reliable and effective weapons, and uniforms appropriate for climate conditions. Passed on a voice vote.

Kyl (R-AZ) (# 4027)-would render certain aliens ineligible to participate in the bill's earned adjustment and deferred mandatory departure programs, including aliens: (1) subject to final orders; (2) who failed to depart after a grant of voluntary departure; (3) who are subject to reinstatement of removal after illegal reentry; (4) who have been convicted of a serious crime here; who are believed to have committed a serious crime outside the U.S.; or who are believed to be a danger to the security of the U.S.; or (5) who have been convicted of a felony or 3 or more misdemeanors. A discretionary waiver would be available for non-criminal aliens who: (1) failed to receive notice of removal proceedings; or (2) establish that their failure to appear was due to exceptional circumstances; or (3) can demonstrate that their departure would result in extreme hardship to a U.S. citizen or lawful permanent resident spouse, parent or child. Passed 99-0.

Sessions (R-AL) (# 3979)-would provide for the construction of at least 370 miles of triple-layered fencing and 500 miles of vehicle barriers in areas along the southwest border that the Secretary determines are areas that are most often used by smugglers and aliens attempting to gain entry into the U.S. In addition, the amendment would require the DHS to repair and extend existing fencing, and construct vehicle barriers, in the Tucson and Yuma sectors. All construction would be required to be completed within two years of the bill's enactment. Passed 83-16.

Obama (D-IL) (# 3971)-would revise the bill's provisions for determining the prevailing wage for an occupation and would lower the unemployment rate that would trigger a freeze on H-2C workers in a given metropolitan statistical area from 11 percent to 9 percent. Passed on a voice vote.

Leahy (D-VT) (# 4018)-would amend section 7209(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004 to extend the Western Hemisphere Travel Initiative (WHTI) for 18 months, from January 1, 2008 to June 1, 2009. As background, WHTI initiative requires all U.S. citizens, Canadians, citizens of Bermuda and Mexico, to have a passport or other accepted secure travel document when entering the United States by January 1, 2008. Passed on a voice vote.

Santorum (R-PA) (# 4000)-would amend INA § 217(c) to provide for the probationary participation in the Visa Waiver Program of any country that contributed substantially to U.S. coalition efforts in the war in Iraq and Afghanistan, and that are members of the European Union. It appears that the amendment would have the effect of allowing Poland to participate in the program. Passed on a voice vote.

Cornyn and Kyl (# 3965)-would amend (and essentially gut) the provisions of the bill that allow H-2C visa holders to self-petition for permanent residence. Currently, the bill would permit H-2C workers to self-petition if they have maintained H-2C status in the U.S. for a cumulative total of 4 years. Under the Cornyn amendment, the H-2C worker could self-petition after 4 years only if an employer attests that the employer will employ the worker in the offered job position, and the Secretary of Labor certifies that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill the position. Passed 50-48. (But see Kennedy #4066, below).

Kennedy (D-MA) (# 4066) (side-by-side to the Cornyn/Kyl # 3965, above)-would allow an H-2C worker with the requisite 4 years in H-2C status (this time requirement was included in the original legislation) to self-petition for permanent residence if the worker successfully petitions the Labor Department for a certification that there are insufficient U.S. workers willing and available to fill the job, and submits at least 2 documents from the following list to establish current employment: (1) records maintained by the SSA; (2) records maintained by the alien's employer; (3) records maintained by the IRS; or (4) records maintained by any other government agency. Passed 56-43.

Akaka (D-HI) (# 4029)-would exempt from the numerical limitations on family-based immigrants the unmarried and married sons and daughters of naturalized Filipino World War II veterans. Passed on a voice vote.

Vitter (R-LA) (# 3964)-would: (1) strike the provisions in section 601 of the bill that allow applicants for earned adjustment to submit sworn declarations as proof of employment history; (2) require sworn affidavits from non-relatives to include detailed contact and other verification information (for both earned adjustment and DMD applicants); (3) strike the "Intent of Congress" language that the documentation requirements "be interpreted in a manner that recognizes and takes into account the difficulties encountered by aliens in obtaining evidence of employment due to the undocumented status of the alien"; and (4) "clarify" that the alien has the burden of proving his or her employment history by a preponderance of the evidence. Passed on a voice vote.

Inhofe (R-OK) (# 4064)-would impact many fundamental services provided in multiple languages by making English the national language of the United States. In addition, it would provide that, unless specifically stated in law, no person has a right, entitlement or claim to have the U.S. government or its representatives communicate, or provide services or materials, in any language other than English. Finally, the amendment would set forth requirements for the redesign of the citizenship test, including a requirement that prospective citizens pass an English proficiency test, and would require that any changes to the testing process be implemented by January 1, 2008. Passed 63-33. (Will have to be reconciled with Salazar # 4073, below)

Salazar (D-CO) (# 4073) (side-by-side to Inhofe # 4064, above)-would declare English as the "common and unifying language of the United States," and would require the U.S. government to preserve its role as such. The amendment also specifies that, "Nothing herein shall diminish or expand any existing rights under the law of the United States relative to services or materials provided by the government of the United States in any language other than English." Passed 58-39.

Cornyn (R-TX) (# 4038) (side-by-side to failed Clinton #4072, below)-would impose an additional application fee on immigrants to begin the process of legalization. It would create a fund that would collect those fees and use the money to help states pay for heath and educational services for noncitizens. Passed 64-32.

Nelson (D-FL) (#3998)-would require the construction of additional detention facilities for undocumented immigrants. Passed on a voice vote.

Ensign (R-NV) (# 4076)-would provide support to the U.S. Border Patrol by authorizing the National Guard to provide, as part of their training, ground and air reconnaissance, logistical support, language translation services, administrative support, technical training services, emergency medical services, communication services, rescue of aliens in distress, and assistance in construction of patrol roads and fences and barriers along the southern U.S. border. Passed 83-10.

Grassley (R-IA) (# 4177)-would, among other things, amend Title III of the compromise bill to replace the current paper I-9 process with a new electronic verification system that employers would have to use to verify an employee's employment authorization. Passed 58 to 40.

Byrd (D-WV) (# 4127)-would require any alien receiving a benefit under the bill's legalization provisions to first pay a $500 fee in addition to the other fees and penalties set forth in the bill. Funds collected under this provision would be used to fund border security efforts, including training, infrastructure, apprehension and detention of aliens, and construction projects. Passed 73 to 25.

Gregg (R-NH) (# 4114)-would amend the diversity immigrant visa program by reserving two-thirds of the available 55,000 visas for aliens who hold an advanced degree in science, math, technology or engineering. Passed 56 to 42.

Landrieu (D-LA) (# 4025)-to reform the intercountry adoption process. Among other things, the amendment would establish within the Department of State (DOS) an Office of Intercountry Adoptions, and would transfer from the DHS to the DOS all functions under the immigration laws with respect to the adoption of foreign-born children by U.S. citizens and their admission to the U.S. It would also provide for automatic acquisition of citizenship for adopted children born outside the U.S. Passed on a voice vote.

Boxer (D-CA) (# 4144)-would modify slightly the bill's requirements regarding procedures employers must use to recruit U.S. workers for, and notify the public about, job openings prior to hiring an H-2C guestworker. Passed on a voice vote.

Burns (R-MT) (# 4124)-would require the Census Bureau to submit to Congress a report on the impact of illegal immigration on the apportionment of Representatives of Congress, as well as on methods for ensuring that undocumented aliens are not counted in tabulating population for purposes of congressional reapportionment. Passed on a voice vote.

Bingaman (D-NM) (# 4131)-would cap the number of employment-based immigrant visas available to workers and their immediate relatives at 650,000 visas. This is a net reduction of several hundred thousand permanent visas compared to the number that would be available under the current bill. Thirty percent of the worldwide visas would be available annually to workers in the new H-2C category. Under the Bingaman amendment that number would be approximately 200,000 (30% of 650,000). At a rate of 200,000 H-2C temporary worker entrants per year plus another 200,000 derivative spouses and children, there could be 400,000 entrants vying for 200,000 slots in a given year. The result would be a backlog in immigrant visas growing by 200,000 per year. Passed 51 to 47.

Feingold (D-WI) (# 4083)-would strike an obscure provision in the bill-section 227(c)-that was added during Committee markup without any discussion, and with little awareness by most Members or staff that it had been included. Section 227(c) would bar federal courts from staying the deportation of any immigrant with a final removal order unless he or she shows by "clear and convincing evidence" that deportation is prohibited as a matter of law. This heightened standard would make it virtually impossible for most asylum seekers, domestic abuse victims, and human trafficking victims to obtain stays of deportation while their cases are on appeal to the federal courts, resulting in grave, potentially life-threatening consequences for legitimate asylum seekers. Section 227(c) also would cause the United States to violate the United Nations Convention and Protocol Relating to the Status of Refugees, which prohibits the return of individuals to countries where they will face persecution. This same provision was stricken by the Senate during the conference negotiations over the REAL ID Act. Passed 52 to 45.

Ensign (R-NV) (# 4136)-would preclude an alien who legalizes under the bill's earned adjustment program from collecting any tax refund for tax years prior to 2006, even if he or she paid all of taxes on time and is owed the refund because of an inadvertent overpayment or an IRS error. In addition, the amendment would preclude such individuals from filing a claim for the Earned Income Tax Credit or any other tax credits for tax years prior to 2006, potentially requiring legalized immigrants to pay more taxes than other people. Passed 50 to 47.

Specter (R-PA) Manager's Amendment (# 4188), a package of numerous individual amendment agreed to in advance by both sides that would make a number of fixes to the underlying bill. We have not yet analyzed the text of the amendment so we don't know with any certainty what changes were included. Passed 56 to 41 (with one Member voting "present").

Amendments that Failed:

Isakson (R-GA) (# 3961)-would prohibit the granting of legal status, or adjustment of current status, to any individual who enters or entered the United States in violation of federal law unless the border security measures authorized under Title I and section 233 of Title II (construction of additional detention facilities) are fully completed and fully operational. Failed 40-55.

Dorgan (D-ND) and Stabenow (D-MI) (# 4017)-would prohibit aliens who are currently outside the U.S. from participating in the new H-2C temporary worker ("future flows") program. Motion to Table (kill) the amendment approved 69-28.

Vitter (R-LA) (# 3963)-would strike the sections of the bill providing for earned adjustment, deferred mandatory departure, and earned adjustment for agricultural workers (sections 601 through 614). Senators Hagel, Martinez, Kennedy, Durbin, McCain and others spoke out passionately against the amendment and others, such as Senator Sessions, took to the floor in support of the Vitter amendment. Failed 33-66 vote.

Ensign (R-NV) (# 3985)-would amend both the Social Security Act and the underlying immigration bill to bar individuals who have legalized from consolidating their social security earnings and obtaining social security credits for income earned prior to the time that the alien was assigned a valid social security number. A Motion to Table (kill) the amendment approved 50-49.

Clinton (D-NY) (# 4072)-would redirect funds from certain fees listed in the underlying bill, directing 25% of funds to the State Criminal Alien Assistance Program and 75% of funds to state governments, some of which must be provided to local governments for education and health care services that are provided to undocumented immigrants. Failed 43-52.

Cornyn (R-TX) (# 3969)-would preclude participants in the bill's temporary worker program from being placed on a pathway to citizenship. Under the bill as drafted, temporary workers can be sponsored for permanent residence by their employers or, after 4 years of work, can self-petition for permanent status. Motion to Table (kill) the amendment approved 58-35.

Chambliss (R-GA) (# 4099)-would amend the AgJobs program by changing the wage requirements for employers seeking to hire agricultural guestworkers. Currently, H-2A employers must pay the highest of three wage rates-the state or federal minimum wage, the local prevailing wage, or the "adverse effect wage rate" (AEWR)-a mechanism created under the Bracero program as a protection against depressed prevailing wages. The AgJobs compromise contained in the bill would reduce the AEWRs for each state by about 10% by setting them at the rates in effect on January 1, 2003, and would then freeze the AEWRs for 3 years, while two studies are performed to examine H-2A wage rates and make recommendations to Congress. If Congress were to fail to enact an AEWR formula within 3 years, the AEWRs would be adjusted at the end of that period by an amount commensurate with the increased cost of living. Motion to Table (kill) the amendment approved 50-43.

Feinstein (D-CA) "orange card" amendment (# 4087)-would replace the bill's three-tiered treatment of undocumented aliens with a single system that would provide a path to citizenship for all eligible aliens present in the U.S. on January 1, 2006. Prospective applicants would have to register and submit fingerprints, pass all required background checks, demonstrate presence in the country, work history, an understanding of English, civics and American history, and pay back taxes and a $2,000 fine. In addition, orange card holders would have to fulfill an annual reporting requirement and pay a $50 processing fee on each occasion. After completing the six-year prospective work requirement, orange card holders would be placed at the end of the line to apply for a green card, with their individual place in line corresponding to the length of time they had been in the U.S. Failed 37 to 61.

Leahy (D-VT) (# 4117)-would restore protection to refugees who are the unintended victims of broad "anti-terrorism" laws. Specifically, recently added language in the INA bars admission to anyone who has associated with or provided "material support" to any armed group. Although some of these groups have coerced this "support" with violence, the law makes no exceptions for refugees who were threatened. Nor is any exception made for those, including children, who are not aware of the activities of groups to whom they provided only minimal support. The Leahy amendment would make an exception to the "material support" provisions for refugees who gave involuntary support to an armed group. It would also exclude from the definition of "terrorist organization" groups determined not to pose a threat to national security or U.S. nationals. Motion to Table (kill) the amendment approved 79 to 20.

Kennedy (D-MA) (# 4106)-would bolster the enforcement of various labor protections, including updating the penalties under the Fair Labor Standards Act (FLSA) and the Occupational Safety and Health Act (OSHA). It would also provide additional protections aimed at allowing workers to organize freely, and require that 25% of fees collected under the bill's guestworker program be dedicated to enforcement of the provisions of the FLSA, OSHA regulations and the labor protection provisions included in the underlying bill. Finally, the amendment seeks to legislate around the Supreme Court's decision in Hoffman Plastics by providing that, notwithstanding any other provision of law, aliens who are subject to unlawful employment practices may not be denied backpay or other monetary relief on the basis of the alien's immigration status. Motion to Table (kill) the amendment approved 56 to 41.

Durbin (D-IL) (# 4142)-would provide the government with discretionary authority to provide a waiver to certain immigrants who are penalized under select "Title II" provisions of the Senate immigration bill. The limited humanitarian waiver would provide the Attorney General or the Secretary of Homeland Security with the discretion to exempt from punishment individuals with compelling equities. The waiver would be at the sole and unreviewable discretion of the government and the immigrant would have to demonstrate extreme hardship to a U.S. citizen or legal permanent resident immediate family member. Motion to Table (kill) the amendment approved 63 to 34.

McConnell (R-KY) (# 4085)-would require individuals voting in federal elections to present a current, valid photo identification that meets the requirements of the REAL ID Act of 2005, beginning on May 11, 2008. Motion to Table (kill) the amendment rejected 48-49, but it was subsequently ruled non-germane after the cloture vote (thus killing it).

Hutchison (R-TX) (# 4101)-would create a new guest worker program for nationals of NAFTA and CAFTA-DR countries in addition to the guestworker program included in the underlying bill. The program would provide no path to citizenship, and applicants would have to apply from the home country, complete a background check, and, once here, could only stay and work in the U.S. for ten months out of the year, having to return home for the remaining two months. Up to 200,000 visas would be available per year, with not more than 50 percent of the annual allotment to be allocated during the first 6 months of the fiscal year in question. Failed 31 to 67.

Chambliss (R-GA) (# 4084)-would change the AgJobs compromise in the underlying bill by establishing more stringent eligibility requirements. Specifically, the amendment would require a farmworker to prove previous agricultural work days in the U.S. of at least 150 days per year in each of two years. AgJobs currently would require the worker to prove 150 agricultural work days in a two-year period (not per year). In addition, the amendment would define a "work day" as at least 8 hours of work in a day. Motion to Table (kill) the amendment approved 62 to 35.

Dorgan (D-ND) (# 4095)-would sunset the new H-2C guestworker program 5 years after the date of enactment. Failed 48 to 49. Cornyn (R-TX) (# 4097)-would strike provisions in the bill that would preserve the confidentiality of information furnished by applicants for legalization and allow government agencies to share an undocumented immigrant's personal information if his or her application and all appeals for legal status have been denied. Failed on a tie vote of 49-49.

Sessions (R-AL) (# 4108)-would deny eligibility for the Earned Income Tax Credit to aliens adjusting their status under either the new H-2C guestworker program, the earned adjustment program for undocumented immigrants currently present in the country, or the AgJobs program. Failed 37 to 60.

Cite as AILA Doc. No. 06053065.