We must do better on immigration reform

The bill passed recently by the U.S. Senate on immigration reform includes unprecedented border security measures, as well as a formidable pathway to legalization for undocumented immigrants. In certain areas the Senate bill represents a significant step in advancing immigration policy. It also requires employers to implement over time the E-Verify program to confirm the legal status of prospective employees. However, despite the provisions in the bill securing the border and providing a pathway to citizenship, the bill’s framework, forged in part by politics, creates a serious possibility that results will not match the rhetoric.

Under the Senate bill, approximately 

2 million undocumented immigrants who are either children of immigrants in the country illegally or are agricultural workers have a realistic shot at some type of legalization. Theoretically, the remaining estimated 9 million undocumented immigrants could obtain registered provisional immigration status six months after enactment of a new law. The provisional legal status lasts six years and is renewable for another six years. After 10 years of provisional status, these immigrants can seek lawful permanent resident status. 


However, these undocumented immigrants must satisfy substantial requirements related to average income, continuous employment and payment of taxes before they are eligible for legalization. There will be significant fees and penalties that some immigrants will never be able to afford. The bill also includes a back-of-the-line requirement requiring that those who broke the law by coming to this country illegally not be afforded legal status before those who followed the rules and filed petitions for entry. Because our government has a residual of straggler cases, this requirement could block provisional residents from obtaining permanent resident status for decades, if ever. 

Additionally, these undocumented immigrants will be allowed to apply for permanent resident status only if certain border security triggers are met. It is possible, of course, that those triggers will never be met because of political or ideological factors. Future congresses may simply refuse to appropriate money for border security.  

So as a result of the bill’s requirements, by some estimates, between 4 million and 5 million of the undocumented immigrant population will never qualify for permanent resident status. That number could be as high as 9 million if the border security triggers are not met. This will likely result in the re-creation of the same underclass of individuals living in the shadows today. In 10-15 years, we could find ourselves facing tremendous pressure, at significant additional cost, to revisit this issue.  

Every sovereign nation decides who and how an individual becomes legalized, and I respect the Senate’s judgment to impose these tough requirements. I too believe in border security and the rule of law. While some might believe the requirements are too tough and are unfair, I understand the views of some that immigrants who broke the law should be grateful that the United States is willing to provide any pathway to legalization for them.

However, there is more than just respect for sovereign rights and personal accountability at issue here. Congressional Democrats and the president appear anxious to pass any immigration bill in order to attract Hispanic voters in future elections. With a new law, Democrats are counting on short-term gains with Hispanic voters, and when those same Hispanic voters see how the law fails to provide a realistic pathway to legalization, Democrats will turn and blame Republicans for preventing the passage of a bill that delivers as advertised. Likewise, House Republicans know that Democrats will compromise in order to get a bill. Consequently, they will likely overreach and push for an even more conservative approach, relying on the president’s signature on a final bill for cover against criticism that they could have delivered on a more balanced law. 

As for most undocumented immigrants, under the Senate bill they will continue to work indefinitely in America, paying taxes and fees without being eligible for federal benefits, all in pursuit of a dream that for most cannot be realized. I am not suggesting that people who broke our laws are entitled to be treated fairly, but we do owe the American people the truth about the ramifications of this bill. On balance, the Senate bill is better than the status quo because it at least provides a plan for greater border security, as well as a pathway to bring some undocumented immigrants out of the shadows. However, this legislation should be called out for what it is: a one-shot approach that neglects several of the fundamental causes of our immigration problems and fails as a long-term solution.

Instead of scrapping the Senate bill, we must improve on it because the status quo is unacceptable. In a post-9/11 world, we need to use our immigration system to identify who is in this country and why, and to support our economy by attracting and keeping talent and necessary workers. We should pass a comprehensive bill, not because it helps one party or the other with the growing Hispanic vote, but because it is the right policy for America.

Gonzales is a former U.S. attorney general and served as counsel to former President George W. Bush. He is currently the Doyle Rogers Distinguished Chair of Law at Belmont University and counsel at the Nashville law firm of Waller.