As the bill is currently drafted, undocumented immigrants on the road to citizenship will qualify for a green card if they can either (1) demonstrate an understanding of English or (2) prove they are “pursuing a course of study…to achieve an understanding of English and knowledge and understanding of the history and Government of the United States.”

Rubio’s amendment seeks to amend the bill to eliminate the second option for showing good faith effort and to require full proficiency before immigrants are allowed to transition from provisional to permanent status.  Fischer’s amendment would add an English proficiency requirement at an even earlier stage in the process:  it would require legalization applicants to either demonstrate proficiency or pursue an approved course of study before they can even apply for any provisional immigration status.
These amendments are exclusionary, unprecedented, and unnecessary.  Despite Rubio’s suggestion that his intent is to “expedite assimilation,” the amendment’s structure is designed to exclude aspiring citizens from the roadmap to citizenship.  The English requirement, as it exists in current law, is already one of the primary barriers for green card holders who seek to naturalize.  Many immigrants do not apply for citizenship because they lack confidence about their English abilities to even apply.  If one of these amendments passes, the same chilling effect will preclude a large number of the eleven million undocumented immigrants from legalization, which was a primary objective of immigration reform in the first place.

In addition, by failing to allocate any resources to expand the national capacity for teaching English as a Second Language (ESL), these amendments are nothing more than unfunded mandate that is designed to set immigrants up to fail.  A recent survey by the National Association for Latino Elected Officials found more than half of ESL providers had a waitlist, with some waiting times extending to over three years.  Without investing in integration and English language resources, these amendments set a standard that cannot practically be met. Most of all, these amendments are not closing any “loophole,” as Rubio has suggested.  The underlying bill already includes the strictest proficiency requirement ever imposed on green card applicants – and no other group of immigrants is subject to such a requirement. 
At the Legal Aid Society – Employment Law Center, we represent many of the eleven million undocumented immigrants whose fate will be decided by immigration reform.  As the Senate started its debate on the floor, for example, I met with Gloria, a restaurant worker whose supervisor repeatedly harasses her at work.  Gloria is undocumented, and has worked as a busser at the restaurant for ten years but has never been promoted or given a raise.  Her husband, who also works at the restaurant, takes English classes at night to improve his English.  Gloria does not take classes because she must stay at home so she can take care of the children.  As a result, she understands English but struggles to speak it.  Gloria is in her late 40s.  By the time Gloria will be eligible to apply for a green card, she will be in her late 50s—at an age where learning a new language will be difficult.    
As Congress continues to debate immigration reform and what it means to be “American,” one must remember both Gloria and our recent immigration history.  The Chinese Exclusion Act of 1882 taught us we are not immune to enacting racial and ethnic requirements that are veiled attempts to engineer a preferred conception of an “American.”  In considering these amendments, we must recognize how intrinsic language is to one’s racial and cultural identity and then ask whether being American is defined by one’s ability to read, write, and speak in English.  In many ways, Gloria is living the American dream--she is striving for a better life, working hard, and seeking to provide for their family.  Insisting that Gloria, and those like her, have a ready-made proficiency in English to even take the first step toward citizenship is not only self-defeating; it calls into question whether Senators Rubio and Fischer’s idea of what it means to be American is in step with America’s values.

Chien is an attorney at The Legal Aid Society – Employment Law Center in San Francisco, California.