The Senate voted on June 11 to proceed with debate on comprehensive immigration reform legislation. While the bill cleared a major hurdle, its fate still very much hangs in the balance. Majority Leader Harry Reid has suggested that he’d like to see the Senate act on the legislation by the July 4 holiday recess. Here are three key issues that will likely determine whether the bill can get through Congress:
Pathway to Citizenship: The nature and length of an earned pathway to citizenship remains a key sticking point for Republicans in both the House and the Senate. The Senate version of immigration reform legislation currently provides a 13-year pathway to citizenship for otherwise law-abiding illegal immigrants who have been in the United States continuously since December 31, 2011. Illegal immigrants must also pay fines, learn English, and meet other requirements to become Legal Permanent Residents (and eventually citizens). The Senate bill also requires that a series of border security triggers be met before any illegal immigrant may become a legal permanent resident. Some Republicans in both chambers remain broadly skeptical of any legislation that provides a pathway to citizenship for illegal immigrants. And there remains broad agreement among Republicans that the border security provisions (see below for discussion) must be enhanced before they can support comprehensive reform legislation. Finally, Republicans are largely of the view that the legislation should require illegal immigrants seeking legalization to demonstrate some evidence of prior tax filings or payments—and to pay any back taxes owed. This provision is particularly challenging since, in all likelihood, illegal immigrants have participated in the underground economy and have not had any previous interaction with the IRS.
Bipartisan negotiators on the House side have reportedly agreed on a similar 15-year pathway to citizenship, although the border security—along with other requirements—will likely be stiffer. We’ll probably see the House version of immigration reform unveiled in the near future, although discussions on that side of the Hill have proceeded at a slower pace.
Despite some fundamental disagreements amongst Republicans regarding the existence of any earned pathway to citizenship, a number of prominent conservatives have endorsed the concept, including House Budget Committee Chairman and 2012 vice presidential nominee Rep. Paul Ryan (R-WI), potential 2016 presidential hopefuls Sens. Rand Paul (R-KY) and Marco Rubio (R-FL), and former Mississippi Governor Haley Barbour.
Healthcare: There are a few sticking points in this policy area that the amendment process must resolve for comprehensive immigration reform to clear the Senate (and certainly the House).
First, the Senate bill includes a provision that interacts with Obamacare in such a way that some employers will be incentivized to hire newly-legalized immigrants over US citizens. Pending immigration legislation forbids newly-legalized immigrants from accessing health insurance premium subsidies, but Obamacare gives US citizens whose yearly income is 400% of the Federal Poverty Level access to these subsidies. Unfortunately, Obamacare will penalize some employers up to $3,000 for each full-time worker who takes advantage of the health law’s insurance premium subsidies. (Penalties will apply to those employers who offer “unaffordable” insurance—defined as premiums exceeding 9.5% of an employee’s income and whose employees access Obamacare’s premium subsidies.) Because the newly legalized immigrants are ineligible for Obamacare subsidies during the entirety of their time on the pathway to citizenship, this adds up to years of potential savings for employers who hire them rather than US citizens. Sen. John McCain (R-AZ), a key supporter of comprehensive immigration reform legislation, recently opined that this issue would be resolved by bipartisan negotiators—but a definitive agreement has not been reached yet.
Second, some Republicans are insisting that immigration legislation require that newly-legalized immigrants take responsibility for all of their healthcare expenses, including the cost of purchasing insurance and any costs incurred in emergency situations. This was one of the issues that drove Rep. Raul Labrador (R-ID), a conservative member of the House, out of the “Gang of Eight” that had formed in the House to negotiate its version of immigration reform legislation. Some Republicans also find themselves in the awkward position of supporting the application of Obamacare’s individual mandate to all Americans, including immigrants on the pathway to citizenship. As currently written, the Senate legislation exempts these immigrants from Obamacare’s requirement that individuals purchase health insurance or pay a tax penalty.
Border Security: The Senate bill currently includes a series of “triggers” that must be met before any illegal immigrant can become a legal permanent resident. These include requirements that the Department of Homeland Security (DHS) create, fund, and begin a border security and border fence plan, universally implement E-verify, an employer verification system, and have a visa exit system at all international airports and seaports. Republicans have repeatedly called for beefing up the border security provisions in pending reform legislation.
Recently, Sen. Rubio signaled his support for Sen. John Cornyn’s (R-TX) “Results” amendment, which would: (1) require DHS to demonstrate “complete situational awareness of the entire US-Mexico border” and a 90% apprehension rate of illegal border crossers; (2) implement a biometric exit system at all air and seaports with a Customs and Border Protection presence, and (3) require national implementation of E-Verify. Only after these requirements are met would illegal immigrants become eligible for permanent legal status. Senate Democrats, led by Majority Leader Harry Reid have already noted that Cornyn’s amendment is a nonstarter—setting up a showdown between the parties on this critical issue.
These three disputed issues stand as major roadblocks to passage of comprehensive immigration reform, but there are still other issues that need to be resolved as well. Nonetheless, key Republicans in both the House and the Senate remain cautiously optimistic that some form of comprehensive immigration reform will pass both chambers. But don’t be surprised if we see a few more twists and turns, and some bumps in the road, before we get there.