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20
Loopholes in the Senate Immigration Bill
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Loophole 1 – Legal Status Before
Enforcement:
Amnesty
benefits do not wait for the
“enforcement trigger.” After filing an
application and waiting 24 hours,
illegal aliens will receive full
“probationary benefits,” complete with
the ability to legally live and work in
the U.S., travel outside of the U.S. and
return, and their own social security
card. Astonishingly, if the trigger is
never met and amnesty applications are
therefore never “approved,” the
probationary benefits granted to the
illegal alien population never expire,
and the new social security cards issued
to the illegal alien population are not
revoked.
[See
pp. 1, 290-291, & 315].
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Loophole 2 – U.S. VISIT Exit Not In
Trigger:
The
“enforcement trigger,” required to be
met before the new temporary worker
program begins, does not require that
the exit portion of U.S. VISIT system –
the biometric border check-in/check-out
system first required by Congress in
1996 that is already well past its
already postponed 2005 implementation
due date – to be in place before new
worker or amnesty programs begin.
Without the U.S. VISIT exit portion, the
U.S. has no method to ensure that
workers (or their visiting families) do
not overstay their visas. Our current
illegal population contains 4 to 5.5
million visa overstays, therefore, we
know that the U.S. VISIT exit component
is key to a successful new temporary
worker program.
[See
pp. 1-2].
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Loophole 3 – Trigger Requires No More
Agents, Beds, or Fencing Than Current
Law:
The
“enforcement trigger” does not require
the Department of Homeland Security to
have detention space sufficient to end
“catch and release” at the border and in
the interior. Even after the adoption
of amendment 1172, the trigger merely
requires the addition of 4,000 detention
beds, bringing DHS to a 31,500 bed
capacity. This is far short of the
43,000 beds required under current law
to be in place by the end of 2007, or
the additional 20,000 beds required
later in the bill. Additionally, the
bill establishes a “catch, pay, and
release” program. This policy will
benefit illegal aliens from countries
other than Mexico that are caught at the
border, then can post a $5,000 bond, be
released and never show up for
deportation hearings. Annual failure to
appear rates for 2005 and 2006, caused
in part by lack of detention space,
doubled the 2004 rate (106,000 – 110,000
compared with 54,000). Claims that the
bill “expands fencing” are inaccurate.
The bill only requires 370 miles of
fencing to be completed, while current
law already mandates that more than 700
miles be constructed
[See
pp. 1-2, & 10-11, and EOIR’s FY2006
Statistical Yearbook, p. H2, and The
Secure Fence Act of 2004].
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Loophole 4 -- Three Additional Years
Worth of Illegal Aliens Granted Status,
Treated Preferentially To Legal Filers:
Aliens who
broke into the country illegally a mere
5 months ago, are treated better than
foreign nationals who legally applied to
come to the U.S. more than two years
ago. Aliens who can prove they were
illegally in the U.S. on January 1,
2007, are immediately eligible to apply
from inside the U.S. for amnesty
benefits, while foreign nationals that
filed applications to come to the U.S.
after May 1, 2005 must start the
application process over again from
their home countries. Last year’s bill
required illegal aliens to have been
here before January 7, 2004 to qualify
for permanent legal status.
[See
pp. 263, 282, & 306].
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Loophole 5 – Completion of Background
Checks Not Required For Probationary
Legal Status:
Legal
status must be granted to illegal aliens
24 hours after they file an application,
even if the aliens have not yet “passed
all appropriate background checks.”
(Last year’s bill gave DHS 90 days to
check an alien’s background before any
status was granted). No legal status
should be given to any illegal alien
until all appropriate background checks
are complete.
[See
pp. 290].
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Loophole 6 – Some Child Molesters Are
Still Eligible:
Some
aggravated felons – those who have
sexually abused a minor – are eligible
for amnesty. A child molester who
committed the crime before the bill is
enacted is not barred from getting
amnesty if their conviction document
omitted the age of the victim. The bill
corrects this loophole for future child
molesters, but does not close the
loophole for current or past
convictions.
[See p.
47: 30-33, & p. 48: 1-2]
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Loophole 7 – Terrorism Connections
Allowed, Good Moral Character Not
Required:
Illegal
aliens with terrorism connections are
not barred from getting amnesty. An
illegal alien seeking most immigration
benefits must show “good moral
character.” Last year’s bill
specifically barred aliens with
terrorism connections from having “good
moral character” and being eligible for
amnesty. This year’s bill does neither.
Additionally, bill drafters ignored the
Administration’s request that changes be
made to the asylum, cancellation of
removal, and withholding of removal
statutes in order to prevent aliens with
terrorist connections from receiving
relief.
[Compare §204 in S. 2611 from the 109th
Congress with missing §204 on p. 48 of
S.A. 1150, & see missing subsection (5)
on p. 287 of S.A. 1150].
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Loophole 8 – Gang Members Are Eligible:
Instead of
ensuring that members of violent gangs
such as MS 13 are deported after coming
out of the shadows to apply for amnesty,
the bill will allow violent gang members
to get amnesty as long as they
“renounce” their gang membership on
their application.
[See p.
289: 34-36].
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Loophole 9 – Absconders Are Eligible:
Aliens who
have already had their day in court –
those subject to final orders of
removal, voluntary departure orders, or
reinstatement of their final orders of
removal – are eligible for amnesty under
the bill. The same is true for aliens
who have made a false claim to
citizenship or engaged in document
fraud. More than 636,000 alien
fugitives could be covered by this
loophole.
[See p.
285:19-22 which waives the following
inadmissibility grounds: failure to
attend a removal proceeding; final
orders of removal for alien smuggling;
aliens unlawfully present after previous
immigration violations or deportation
orders; and aliens previously removed.
This appears to conflict with language
on p. 283:40-41. When a direct conflict
appears in a statute, the statue is
interpreted by the courts to the benefit
of the alien.].
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Loophole 10 – Learning English Not
Required For A Decade:
Illegal
aliens are not required to demonstrate
any proficiency in English for more than
a decade after they are granted amnesty.
Learning English is not required
for an illegal alien to receive
probationary benefits, the first 4-year
Z visa, or the second 4-year Z visa. The
first Z visa renewal (the second
4-year Z visa) requires only that the
alien demonstrate an “attempt” to learn
English by being “on a waiting list for
English classes.” Passing a basic
English test is required only for a
second Z visa renewal (the third
4-year Z visa), and even then the alien
only has to pass the test “prior to the
expiration of the second
extension of Z status” (12 years
down the road).
[See
pp. 295-296].
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Loophole 11 – Earned Income Tax Credit
Will Cost Taxpayers Billions In Just 10
Years:
Current
illegal aliens and new guest workers
will be eligible for the Earned Income
Tax Credit, a refundable tax credit
designed to encourage American citizens
and legal permanent residents to work.
The Congressional Budget Office
estimates that this loophole will cost
the U.S. taxpayer up to $20 billion
dollars in just the first 10 years after
the bill’s enactment. To be consistent
with the intent of the 1996 welfare
reforms – which limited new immigrants
from receiving public benefits until
they had been legal permanent residents
for five years – the bill should
withhold EITC eligibility from amnestied
aliens until they become legal permanent
residents. Closing this loophole will
save the taxpayers billions of dollars.
[See p. 293 after S.A. 1190 was adopted,
p. 307, p. 315, §606. All that is
required for EITC eligibility is a
social security number and resident
alien status. Nothing in the bill’s tax
provisions limit EITC eligibility. The
issuance of social security numbers to
aliens as soon as they apply for amnesty
will ensure they are able to qualify for
the EITC.]
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Loophole 12 – Affidavits From Friends
Accepted As Evidence:
Records
from day-labor centers, labor unions,
and “sworn declarations” from any
non-relative (acquaintances, friends,
coworkers, etc) are to be accepted as
evidence that the illegal alien has
satisfied the bill’s amnesty
requirements. This low burden of proof
will invite fraud and more illegal
immigration – even aliens who are not
yet in the U.S. will likely meet this
burden of proof. DHS will not have the
resources to examine whether the claims
contained in the “sworn declarations” of
the alien’s friends (that the alien was
here prior to January 1, 2007 and is
currently employed) are actually valid.
[See p. 293: 13-16].
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Loophole 13 – Taxpayer Funded Legal
Counsel and Arbitration:
Free legal
counsel and the fees and expenses of
arbitrators will be provided to aliens
that have been working illegally in
agriculture. The U.S. taxpayer will
fund the attorneys that help these
individuals fill out their amnesty
applications. Additionally, if these
individuals have a dispute with their
employer over whether they were fired
for “just cause,” DHS will “pay the fee
and expenses of the arbitrator.”
[See p.
339:37-41, & p. 332: 37-38.]
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Loophole 14 – In-State Tuition and
Student Loans:
In-state
tuition and other higher education
benefits, such as Stafford Loans, will
be made available to current illegal
aliens that are granted initial
“probationary” status, even if the same
in-state tuition rates are not offered
to all U.S. citizens. This would
normally violate current law (8 U.S.C.
§1623) which mandates that educational
institutions give citizens the same
postsecondary education benefits they
offer to illegal aliens.
[See p.
321: 8-31].
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Loophole 15 – Inadequacy of the Merit
System:
The “merit
system,” designed to shift the U.S.
green card distribution system to
attract higher skilled workers that
benefit the national interest, is only a
shell of what it should have been.
Though the merit system begins
immediately, it will not increase the
percentage of high skilled immigrants
coming to the United States until 2016,
8 years after enactment. Of the
247,000 green cards dedicated to the
merit based system each year for the
first 5 years, 100,000 green cards will
be reserved for low-skilled guest
workers (10,000) and for clearing the
current employment based green card
backlog (90,000). From 2013 to 2015, the
number of merit based green cards drops
to 140,000, and of that number, 100,000
green cards are
still
reserved each year for
low-skilled guest workers (10,000) and
for clearing the current employment
based green card backlog (90,000). Even
after 2015, when the merit system really
begins (in 2016) by having 380,000 green
cards annually, 10,00 green cards will
be reserved specifically for low skilled
workers, and points will be given for
many characteristics that are not
considered “high-skilled.” For
example, 16 points will be given for
aliens in “high demand occupations”
which includes janitors, maids, food
preparation workers, and
groundskeepers.
[See
p.260: 25 – p. 261: 20, p. 262, & The
Department of Labor’s list of
“occupations with the largest job
growth” available at
www.bls.gov/emp/emptab3.htm].
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Loophole 16 – Visas For Individuals That
Plan To Overstay:
The new
“parent” visa contained in the bill
which allows parents of citizens, and
the spouses and children of new
temporary workers, to visit a worker in
the United States is not only a
misnomer, but also an invitation for
high rates of visa overstays. This new
visa specifically allows the spouse and
children of new temporary workers who
intend to abandon their residence in a
foreign country, to qualify to come
to the U.S. to “visit.” The visa
requires only a $1,000 bond, which will
be forfeited when, not if, family
members of new temporary workers decide
to overstay their 30 day visit. Workers
should travel to their home countries to
visit their families, not the other way
around.
[See p.
277:1 – 33, and p. 276: 38-43].
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Loophole 17 – Chain Migration Tippled
Before Being Eliminated:
Though the
bill will eventually eliminate chain
migration (relatives other than spouses
and children of citizens and legal
permanent residents), it will not have
full effect until 2016. Until then,
chain migration into the U.S. will
actually triple, from approximately
138,000 chain migrants a year (equal to
14% of the 1 million green cards the
U.S. currently distributes on an annual
basis) to approximately 440,000 chain
migrants a year (equal to 45% of the 1
million green cards the U.S. currently
distributes on an annual basis).
[See
pp. 260:13, p. 270: 29 – pp. 271: 17]
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Loophole 18 – Back Taxes Not Required:
Last
year’s bill required illegal aliens to
prove they had paid three of their last
five years of taxes to get amnesty.
This year, payment of back taxes is not
required for amnesty. The bill requires
taxes to be paid at the time of
application for a green card, but at
that time, only proof of payment of
Federal
taxes (not state and local) is required
for the years the alien worked on a Z
visa, not the years the alien has
already worked illegally in the United
States. Though Senator McCain’s S.A.
1190, adopted by voice vote, claimed to
“require undocumented immigrants
receiving legal status to pay owed back
taxes,” the amendment actually only
required proof of payment of taxes for
“any year during the period of
employment required by subparagraph (D)(i).”
Since the bill does not contain a
subparagraph (D)(i), nor require any
past years of employment as a
prerequisite for amnesty, the amendment
essentially only requires proof of
payment of taxes for future work in the
U.S., not payment of “back taxes.”
[See p.
307, and p. 293 as altered by S.A. 1190,
amendment p. 2: 19-20.]
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Loophole 19 – Social Security Credits
Allowed For Some Illegal Work Histories:
Aliens who
came to the U.S. on legal visas, but
overstayed their visas and have been
working in the U.S. for years, as well
as illegal aliens who apply for Z visa
status but do not qualify, will be able
to collect social security credits for
the years they worked illegally. Under
the bill, if an alien was ever issued a
social security account number – all
work-authorized aliens who originally
came on legal visas receive these – the
alien will receive Social Security
credits for any “quarters of coverage”
the alien worked after receiving their
social security account number. Because
the bill requires social security
account numbers to be issued “promptly”
to illegal aliens as soon as they are
granted “any probationary benefits based
upon application [for Z status]” (these
benefits are granted 24 hours after the
application is filed), an illegal alien
who is denied Z visa status but
continues to work illegally in the U.S.
will accumulate Social Security
credits.
[See
pp. 316:8 – 16, and pp. 315: 32-39]
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Loophole 20 – Criminal Fines Not
Proportional To Conduct:
The
criminal fines an illegal alien is
required to pay to receive amnesty are
less than the bill’s criminal fines for
paperwork violations committed by U.S.
citizens, and can be paid by
installment. Under the bill, an illegal
alien must pay a $1,000 criminal fine to
apply for a Z visa, and a $4,000 fine to
apply for a green card. Eighty percent
of those fines can be paid on an
installment plan. Under the bill’s
confidentiality provisions, someone who
improperly handles or uses information
on an alien’s amnesty application can be
fined $10,000. Administration officials
suggest that the bill’s “criminal fines
are proportionate to the criminal
conduct.” Why, then, is the fine for
illegally entering, using false
documents to work, and live one-tenth
the fine for a paperwork violation
committed by a government official?
[See p.
287: 34, p. 317: 9, p. 315:6-8, &
remarks made by Secretary Gutierrez on
Your World with Neil Cavuto, 4:00 May
31, 2007]
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