Consider an unauthorized immigrant family of four. They live in the outer suburb of a major Southwestern city, say Tucson, Ariz. They came to the United States five years ago from a village in El Salvador. They paid a Mexican smuggler $5,000, their life savings, to put them on a bus to cross the border in a remote part of the desert. They hiked to a freeway from there.
Now, Dad uses the 1986 station wagon he bought in a junkyard to drive to the gas station five miles away, where he looks for work as a day laborer. He often cleans up on construction sites or moves rocks for landscapers. On good weeks, he brings in more than $300. When he only works one or two days, it's a lot less. Sometimes he gets stiffed and doesn't get paid what he was promised.
Mom is afraid to drive without a license, so she mostly stays in their one-bedroom apartment with the kids, ages 8 and 6. Sometimes she picks up housecleaning work if a regular cleaning lady is sick and she can get a ride.
This family is luckier than some. They have a car. They have an apartment, thanks to an uncle with papers, whose name is on the lease. They often share their apartment with recently arrived single men or families who come from their home region. Sometimes the roommates stay for months.
Under immigration legislation being discussed in Congress, this family would be eligible for provisional legalization, and eventually citizenship. A bill passed in the Senate in June would allow all four of them to become naturalized citizens in about 13 years. If the House passes similar legislation, that time frame could lengthen.
What would happen to the family during that time? What if Dad beats Mom? Can she leave him and still qualify for legalization? (Yes, with difficulty and risk.) What if Dad breaks his leg on a roofing job and is laid up for three months? Do they all lose their legal status? (Possibly.) Further down the road, what are the kids' options if they want to go to college? (Pell Grants, maybe.)
With a legalization program still a long way from becoming law, these questions may seem premature. The Republican-led House is considering a handful of smaller immigration bills that, to date, do not include a full-fledged legalization plan for people without papers. A betting person would put long odds on such a program becoming real anytime soon. Still, if it happens, it is certain to involve a long-term probation for millions of unauthorized immigrants. It could be a giant mess.
The Senate bill's winding path to citizenship is akin to the switchbacks on a Chutes and Ladders game board: many ways to slide to the bottom, and only a few opportunities (for undocumented youth and farm workers) to quickly climb up a level or two. An immigrant on the path could get all the way to the top and find herself sliding all the way back to Start, out of status with no recourse. She could have been without work for more than 60 days—back to the bottom!—or she could have accumulated too much debt—two steps back!
How many people will make it to the top is anyone's guess. The Congressional Budget Office assumes roughly 60 percent of those who qualify for the Senate bill's program would make it through, although it's tough to know the basis for those estimates. The system is likely to deter some immigrants from even trying to achieve citizenship and cause others to give up. No rational person would design a process so complicated and so convoluted that it is virtually guaranteed to produce frustration, abuse, and unintended consequences. But, then again, that's not the point. The main imperative of immigration legislation isn't that it will work. It's that it will pass. Dealing with the problems it will create can wait for another day.
A NEW UNDERCLASS
The Senate bill's 13-year legalization plan is an attempt to satisfy two competing political philosophies. For conservatives, individual responsibility is their mantra, and this type of program would be a sublime test of that philosophy. Only after immigrants had demonstrated responsibility would they be eligible for safety-net programs that are the mark of developed countries—health care, and food and housing aid. Liberals have more populist aims. They believe it would benefit everyone to make easily exploited, off-the-books people legitimate, employable members of society. If these supporters have to impose more obstacles to citizenship than they would like as the price of winning Republican votes, so be it.
Such a compromise is the only answer that can pass muster politically, because members of Congress have no appetite for anything that looks like a gift to people who broke the law by coming to the U.S. without papers. So the likely penance imposed on an undocumented person would be to sit in legal limbo for years, as a modern peasant observing the noble-citizen Americans from the outside. Until these immigrants earn that nobility themselves, they would form a new type of underclass—better off than they currently are, because they would have at least the hope of legalization, but still set apart as different.
This immigrant-on-probation concept is vastly different from the immigrant-amnesty program President Reagan approved in 1986. That law gave undocumented immigrants green cards within 18 months of registry and required little more than proof (which was easily faked) that they had been in the country illegally for five years or longer. The 1986 law did not make illegal immigration go away, but it did give 3 million people who had no papers the ability to become legal residents and put down roots. Many of them are now citizens.
Likewise, the bill in Congress would not eliminate illegal immigration. It would shrink the problem, certainly, and it would help millions of undocumented newcomers. But at what price to the immigrant? To society? Is a byzantine way forward preferable to no way at all? Most undocumented immigrants would say yes. Most advocates for them agree. At least for now.
The Senate legislation would create a new type of person, the "registered provisional immigrant," or RPI. Immigration lawyers and lobbyists already are plotting path-to-citizenship scenarios, even though that path doesn't exist yet. For now, the prognostications rely solely on the Senate bill; a House proposal is still in its fetal stages. But their imagined experience of an RPI is probably pretty accurate, given that many of these advocates have worked for decades with immigrants with all kinds of legal status—asylum applicants, trafficking victims, and those who simply walked over the border.
The immigrant-service center Ayuda in Washington has been flooded with calls about the Senate bill all summer. Many callers don't understand that the bill isn't law yet. "There's a lot of confusion and a lot of uncertainty about what's in the new law. 'Do I qualify for it?' We have to be able to meet the demand for accurate information that they can understand," says Jaime Farrant, Ayuda's executive director.
Ayuda's staffers are warning callers away from notarios who claim they can put an undocumented immigrant "first in line" when an immigration bill becomes law. These guys are frauds. There is no such line. The nonprofit's employees also make it their mission to be straight with clients about their limited legal options, dispelling rumors shared by friends or sales pitches from scammers.
Becoming an RPI would be a dream come true for most undocumented immigrants. They could get a work permit, a Social Security number, and a driver's license. They would no longer have to use payday loan sharks to cash their checks. They could open a bank account. They could get on a plane, assuming they could afford it. They could even leave the country and reenter legally, an unheard-of privilege for immigrants who can't go abroad to see a dying parent one last time. (Once an unauthorized person is in the country, it's very difficult to leave and almost impossible to get back in if you do.)
Like the 1986 bill, this coveted RPI status would be available only to those who have been living in the U.S. illegally for several years. No short-term lawbreakers are allowed.
Our theoretical family in the Tucson outskirts would qualify. Here's how it would work.
Dad must prove, somehow, that he has been in the country since before Dec. 31, 2011. He can't have a criminal record. He has to pay an up-front fee; the amount is not yet determined, but it would be at least $1,000 for each applicant, to be paid in installments over six years. His wife and children can become RPIs as "derivatives" of him. If their familial relationship ends through death or divorce, or if domestic abuse is present, Mom and the kids can apply independently to be RPIs, with the same fee and background-check requirements.
Once the family members have RPI status, they must renew after six years. Dad must pay the remainder of the $1,000 for each person. He must also prove that he has not been out of work for more than 60 days at a time or, alternatively, that he has enough money to live above the federal poverty line without his job. Right now, that's a big chunk of change: $1,962 per month for a family of four.
After four more years, Dad and his family are finally eligible to apply for green cards, a major prize on the path to citizenship. Green cards give them permanent residence, which means they can't fall out of status through simple neglect of deadlines. They face no more fines, just a naturalization fee if they decide to complete the citizenship process. (About half of the immigrants who got green cards in 1986 did not apply for citizenship.)
There is one caveat at this stage. Under the Senate bill, the 10-year timeline between an RPI and a green card assumes the federal government would have met its obligations for border security, employment verification, and visa backlogs. It's not an unrealistic assumption, but it's also not a certainty.
To get green cards, Dad must pay an additional $1,000 per RPI and each member of the family must speak English, which would likely be verified through a test similar to the English-language test now used in naturalization proceedings. Dad must again prove he has not been unemployed for more than 60 days at a time. Alternatively, he can show he has enough cash to cover 125 percent of the federal poverty threshold, or $2,452 per month. Mom must prove that she won't become a burden on public services, likely by demonstrating that she is healthy and capable of working, if she isn't already employed. Finally, Dad must show that he has paid in full the $4,000 fine ($1,000 per RPI), plus whatever back taxes he may owe based on a yet-to-be determined calculation of what he earned as an undocumented worker.
The children, now 18 and 16, have to show they are enrolled in secondary or higher education. If they want to go to college, they now qualify for Pell Grants to offset the cost of tuition, but they don't have access to any other federal entitlement benefits.
Assuming the family jumps through all these hoops without a hitch, they can each apply to become a naturalized citizen three years later. Only after they complete that step do they get access to federal antipoverty programs such as Medicaid and food stamps. The kids will be 21 and 19, so they can vote. Their own children will be citizens automatically. Mom and Dad can vote as well, and they will eventually qualify for Medicare, even though they have probably a good 20 years left to work before they are eligible.
All in all, the family is in a vastly better spot than they were at the beginning of the process. Dad is making more money because he must have met the program's employment requirements or he would have fallen out of status. Mom also likely contributed to the household's bottom line once she could get a driver's license and a work permit.
The kids are basically Americans, distinguished from their U.S.-born friends only in the sense that they are bilingual and brown. They are in no better or worse shape than their citizen classmates who went through the same public school system.
A RISKY PROPOSITION
But that is a best-case scenario. A hundred things could go wrong between the family's first steps into legal limbo and their citizenship oath. What if one of the kids gets caught with a bag of pot? If it's ruled a felony, that disqualifies her for a green card. What if Mom gets pregnant by someone other than Dad and he throws her out? Her RPI status is linked to Dad's. What if Dad gets a DUI? That could disqualify him for a green card.
A few scenarios are particularly worrisome to advocates who are well acquainted with how immigrants conduct themselves now, on the edges of society. Here's one: Dad loses his construction job and can't find work for four months. He would not qualify to renew the RPIs for himself and his family unless he had a repository of cash to prove they aren't living in poverty. His buddy tells him he can get fake work documents to cover those four months for $500. Dad takes him up on it as the RPI renewal date approaches, but he is turned down by the adjudicators because he cannot provide accompanying tax returns. Now everyone in the family is undocumented. What's more, they are on the official radar because of the rejected RPI renewal application. The authorities could charge Dad with fraud. They could put everyone on a deportation list.
Here's another possible story: Dad could get abusive. That's common enough that Ayuda devotes half its legal-staff slots to family-law experts for abuse cases and custody battles; the other half are immigration practitioners. The two areas of law easily intersect. Dad has unique power over Mom and the kids because he is their RPI sponsor. He can threaten to withdraw it, even if that technically isn't possible. (In undocumented families, abusive heads of households often threaten to call immigration authorities on their dependents, even though they don't have papers themselves.)
According to the Senate immigration bill, Mom and the kids could continue in RPI status if they leave Dad because of abuse. But then Mom must take on the unpaid fees to cover the RPIs for herself and the kids, she has to have another place to live, and she'll need steady work. She still isn't eligible for food stamps or other public assistance.
It's a tenuous existence at best, not vastly different from the way many immigrants are living now. Social workers describe them as fiercely independent. They don't seek help until they are desperate. Their mistrust of public officials is high. Even a nongovernment community group like Ayuda, ensconced in the D.C. immigrant community for 40 years, has to constantly reassure clients that it won't turn them over to authorities. If the clients have fled a bad situation in a hurry, they are often unprepared for a long legal haul.
"You might not have your child's clothes. You might not have bottles," says Nelly Montenegro, an Ayuda staff lawyer describing her initial consultations with women in abusive situations, many of whom also have questionable legal status. It can take up to two weeks for a protective order to come through. If the woman has no choice but to go back home, Ayuda stocks lipstick tubes that contain emergency contact information so the abusers won't suspect anything.
Montenegro keeps toys on a bookshelf in front of her desk to occupy children during her meetings with clients, which can take several hours. She has a purple cotton curtain that she hangs over her door window in her otherwise windowless office to signify that everything they tell her is confidential. "There's going to be some crying," she says.
A legalization program like the one outlined in the Senate bill could offer welcome relief to many of the immigration and poverty woes that groups like Ayuda confront. But it can't address all of them. An economic downturn could make employment hard to come by, causing RPIs to take any job they can find to remain in status at whatever wages the employer will pay. Low pay and no possibility of federal aid mean that the kids could go hungry during the summer, when school-provided meals aren't available.
Advocates are concerned that the Senate bill's legalization program could give scam artists and bullies a new avenue to exploit an already vulnerable population. "One of our biggest areas [of concern] is fraud. This happened in the '80s, as well. People have to prove who they are. People are saying, 'I'll get you your documents, birth certificates' [for a fee].… We're concerned about loan sharks. It's expensive for people to qualify," Farrant says.
People who slip on the long path to citizenship will find little cushion. Lawmakers are intensely determined that immigrants earning legal status should not become a burden on society by accessing its benefits. The message to the undocumented immigrant-cum-citizen: You're on your own.
Social philosophers ranging from Karl Marx to Ayn Rand have struggled to resolve the tension between an individual's responsibilities and freedoms and the community's collective obligation to protect its people from harm. The legalization plan in the Senate measure throws a wrench into that already difficult problem. A large group of immigrants on probation would be set apart from the current American structure that balances those conflicting ideals, however imperfectly.
Someone would need to pick up the pieces. One place that would happen would be in emergency rooms. If a legalization program is enacted, 5 million to 6 million immigrants-in-transition would remain uninsured, predicted Randy Capps, a demographer at the Migration Policy Institute. They would "continue relying on the same sources of care that have served unauthorized immigrants in the past: hospital emergency departments and federally qualified health centers," he wrote in a recent article for Health Affairs.
Hospitals, by law, can't turn away people in need, which means they and their communities bear the burden of an uninsured population. The 1986 immigration amnesty included $4 billion for states with high immigrant populations to cover the costs of uncompensated care. The Senate-passed legislation does not have a similar component.
It is an article of faith in Congress that undocumented immigrants and those transitioning to citizenship cannot receive federal subsidies under the Affordable Care Act. During the debate on the legislation, Democrats arguing for broader coverage eventually yielded to Republicans' insistence that immigrants, by law and simple fairness, should not draw on limited public resources reserved for citizens. Senate Democrats crafting the immigration bill did not even challenge that tenet. So, no federal health benefits for immigrants.
About 70 percent of unauthorized immigrants have no health coverage; the others get insurance through an employer. Uninsured immigrants use the emergency room only as a last resort. "They don't go to the doctor. Ever. Ever. Ever," says Wendy Cervantes, vice president of immigration and child-rights policy at First Focus, a children's advocacy group.
The only saving grace in this inadvisable reality is that immigrants, both documented and undocumented, are generally healthier than the citizen population. On birth weight and infant mortality—two key indicators of health conditions for children—immigrant families in the United States are faring better than citizen families, particularly African-Americans. Immigrant mothers of Hispanic children have the lowest rates of low birth weight among all U.S. racial and immigrant groups, and they are second only to Asian immigrant mothers in their low rates of infant mortality, according to a new report from the Foundation for Child Development.
From a health care perspective, excluding immigrants from the federal coverage makes no sense. The immigrant population is a gold mine of premium payers. Those immigrants who have health insurance tend to use health services far less frequently than citizens do, which means they make money for insurers. Adding a big group of previously uninsured healthy immigrants to a pool of sick and poor people would lower rates for everybody.
The health care exclusion isn't a fatal problem in the Senate bill by any stretch, but it would weaken the broader coverage goals of the Affordable Care Act. "This is a largely young, working, healthy population," Capps said. "If everything was going along smoothly, and ACA was implemented and everyone was included, we'd be getting rid of, in theory, the uninsured problem, rid of uncompensated care. By carving out a population of several million people for an extended period of time—it's more like a missed opportunity than a negative impact."
Crafting immigration legislation has always been torturous. That's as it should be. Decisions about who gets in to the United States, who doesn't, and how to enforce that distinction should not be made casually over cocktails. Republicans who champion any form of legalization take giant risks in offending their rule-of-law constituents, sometimes coming up with ridiculously convoluted ways to make a solution seem "fair."
Is it worth it? This is the question plaguing immigrant communities and the network of organizers, social workers, and humanitarians who try to help them. "We're feeling really mixed about this whole thing," says Silky Shah, a spokeswoman for Detention Watch Network, about the Senate's bill. "I don't know if I believe it's going to make … ," she begins, her voice trailing off. "I just don't know."
Shah, like many advocates for immigrants, doesn't want to discourage Congress's efforts, because undocumented immigrants currently face a bleak, uncertain future. They live in crowded conditions on subsistence wages. They work 10- to 12-hour shifts with hours-long public-transit commutes and feel locked in to their jobs—if they have jobs—because of their status.
But creating a group of quasi-legal immigrants brings its own set of problems, as illustrated by the deferred-action program that President Obama put in place last year to give undocumented youth protection from deportation. In the year since the program was announced, the administration has approved some 300,000 applications. "It's like, 'What is this status? What does it really mean? What does this mean in terms of their civil rights and civil liberties,' " Shah says.
The ambiguity isn't lost on undocumented families with teens who could qualify for deferred action, according to Ayuda's Farrant. They know that a new president could yank the program at any time. They know that if they come forward and are turned down, they risk outing the whole family to immigration authorities. The $465 application fee is a problem. "They say, 'I would rather wait until I'm facing deportation,' " Farrant says.
The 10-year probation period would be no different. "There's no question that the protections are going to be very limited," Shah says. She speaks from experience working with immigrant detainees when she describes what could happen to an RPI family. "Somebody gets injured, can't work, ends up in detention and deportation proceedings. The children can wind up in the foster-care system."
Under current law, people who are taken into detention often aren't allowed a phone call to arrange for child care, even though their tight-knit communities brim with friends and relatives who would gladly provide for their kids.
The prospect that stricter enforcement provisions could increase child custody and detention cases has prompted some liberal organizations to shun lawmakers' attempts at immigration reform. The Latino group Presente.org has staged protests around the country, saying the Senate measure is "an extreme, right-wing bill" that does not answer the needs of the undocumented population. "It was a tough decision. We don't take this lightly, but there are limits to what we can accept," says the group's executive director, Arturo Carmona, citing the bill's increases in detention centers and five-year waiting period for green cards for undocumented youth.
First Focus is worried about the multigenerational impact of an extended period in limbo. Most RPI kids will be poor and won't have access to any poverty-related benefits except school lunches.
In general, children in poverty are at risk for a host of developmental and health problems over time. The troubles start with "chronic diseases like asthma, greater food insecurity, and poorer nutrition, poor access to quality health care," according to the Academic Pediatric Association and the American Academy of Pediatrics. The problems continue into adulthood, as adolescents get trapped in "intergenerational poverty" through low high school graduation rates and poor social development.
Life-altering events such as teen pregnancy, drug and alcohol abuse, and criminal behavior are more common than among the general population. "They are more likely to be poor adults with low productivity and low earnings," the pediatrician groups said in a recent statement calling on the health care community to help reduce poverty in the United States.
HALF A LOAF
Did the authors of the Senate immigration bill really intend to create a population of poor, unsupported families that could perpetuate a multigenerational poverty cycle when they carved out this group of have-nots? Of course not. Those have-nots already exist. They could wind up in detention at any time. The reality is, however, that the Senate's legalization plan might not fundamentally change that dynamic.
True, legalization could help lots of undocumented people by giving them work papers and the ability to move freely around the country, even if they are poor. It could also hurt others who don't qualify by pushing them further underground. The net impact on the country is unclear.
Most advocates haven't gone as far as Presente.org in opposing the Senate bill, preferring to encourage lawmakers to keep going. Half a loaf is better than nothing, they say. Progress comes in inches. But is there a point at which the effort isn't worth it anymore, where the people who are closest to the immigrant community throw up their hands and walk away? "I think there is, but we haven't allowed ourselves to articulate it yet," says Ed Walz, First Focus's vice president of communications.
There are only two ways to completely eliminate illegal immigration. One is logistically impossible—deporting everyone without papers and never letting another soul cross the border illegally. The other is politically impossible—legalizing everyone already here without papers. The 1986 amnesty bill, legalizing some but not all, was a compromise. The Senate's proposed 13-year slippery trek to citizenship is also a compromise.
The late Sen. Edward Kennedy, D-Mass., a notorious dealmaker, believed firmly in the legislative half loaf. He was at the center of every major immigration debate from 1965 until he died in 2009. Again and again, he listened to Republicans' desires to enforce the rule of law and eked out concessions for immigrants who had broken the law, albeit innocently, by their unauthorized presence.
Kennedy is gone, but the dynamic persists. A long probation for people here illegally is the kind of solution that Kennedy would have embraced, not because it solves all of the country's immigration problems but because it solves a few of them. The same dynamic occurred in 1986. Thirty years of hindsight about that law has provided lawmakers with a litany of unintended consequences to try to avoid this time. It doesn't matter. There will be new ones.
The alternative is to give up. That's what happened in 2007, when the Senate's massive and problematic proposal to overhaul the immigration system collapsed under its own weight. It could happen again. But if some kind of legalization program for unauthorized immigrants becomes a reality, and that's a big "if," it will be in this form—a long period of probation and servitude, with less fear of deportation.
What about the long-term impact of this new social stratification? That's what the next generation of policymakers and social theorists will have to figure out.