Senate Expected to Pass Immigration Reform This Week

June 26, 2013

pic-immigrationThe full Senate is now considering the comprehensive immigration reform legislation reported out of the Judiciary Committee, The Border Security, Economic Opportunity, and Immigration Modernization Act  (S. 744). It is expected to pass by more than the 60 votes necessary to prevent a filibuster.  Additional floor amendments are expected to be offered. A total of 478 amendments have been filed. There is no agreement yet as to how many amendments will be voted on.  It appears, however, that only a very small fraction of the amendments filed will be discussed and voted on (perhaps as few as 15 amendments).  Click here for a list of amendments NSBA is urging Senators to support as well as those to oppose.

Majority Leader Harry Reid (D-Nev.) has said that he anticipates a final vote on the bill by Friday.  There may be a cloture vote on Wednesday (cloture ends debate within a specified time and allows the Senate to proceed to a vote on final passage). To read S. 744 as amended by the Senate Judiciary Committee, click here. To read the committee report favorably reporting S. 744, click here.

What the Immigration Reform Bill Does

The bill includes liberalized but complex visa rules for (1) temporary business and agricultural workers, (2) high-skilled workers, (3) science, technology, engineering and mathematics university graduates and (4) immigrant entrepreneurs.  NSBA supports these provisions, but is seeking simplified rules and application procedures for small firms.  It contains provisions making the use of E-Verify mandatory and imposing stiff civil and criminal employer penalties for failing to use E-Verify.  NSBA opposes these provisions and is seeking measures to improve E-Verify.  The bill strengthens border security and creates a path to citizenship for many millions of persons currently in the U.S. unlawfully.

The Congressional Budget Office (CBO) released a report last week finding that S. 744 would generate changes in direct spending and revenues that would reduce federal budget deficits by $197 billion over FY 2014–2023. In addition, CBO estimates that direct spending and revenues would reduce federal budget deficits by about $700 billion (or 0.2 percent of Gross Domestic Product) over FY 2024–2033.  To read the CBO analysis, click here and here.

The Senate agreed, by a vote of 67 – 27, to vote on the border security amendment to S. 744 sponsored by Sens. Bob Corker (R-TN) and John Hoeven (R-ND) that would double the number of border agents and to spend an additional $4.5 billion on equipment in a bid to further strengthen border enforcement.

Judiciary Committee Mark-Up

An NSBA-supported amendment establishing a Small Business and Employee Advocate with the authority to issue assistance orders was successfully offered by Sen. Al Franken (D-Minn.) in Committee. This provision is modeled on the successful Taxpayer Advocate at the Internal Revenue Service.  See section 3107 of S. 744 as amended by the Judiciary Committee.  Sen. Franken also successfully offered NSBA-supported accuracy related E-Verify amendments. To read more on Sen. Franken’s amendments, click here.  Sen. Chris Coons (D-Del.) successfully offered an important amendment requiring that individuals be notified when their name is run through E-Verify.  This should help address identity theft problems.

Senate Floor Amendments

The criminal and civil penalties for failing to use E-Verify should not apply if the person hired is legally authorized to work. Sen. Jim Risch (R-Idaho) is expected to offer an NSBA-supported amendment (SA 1238) to ensure that if the person hired is a U.S. citizen or permanent resident, then the employer would not be subject to potentially ruinous fines or imprisonment.

Dealing with E-Verify database errors has a disproportionate adverse impact on small firms.  There should be an incentive for U.S. Citizenship and Immigration Services (USCIS) to reduce errors.  USCIS compliance needs to be independently verified.  Sen. Risch may offer another NSBA-supported amendment that provides that unless an error rate of 0.3 percent is attained, the E-Verify mandate would not apply to firms with 50 or fewer employees.

There must be a legal presumption that hires with U.S. passports are legally entitled to work notwithstanding what the E-Verify computers say about their status.  If the State Department has determined that a person is a U.S. citizen and issued them a passport, the employer should be able to treat them as entitled to work until the government proves otherwise even if E-Verify generates a tentative non-confirmation (which is virtually certain to be an erroneous TNC if the person has a U.S. passport).  Sen. Marco Rubio (R-Fla.) has committed to offer an NSBA-supported amendment to achieve this.

The civil and criminal penalties for failure to use E-Verify are already potentially ruinous and the criminal penalties are comparable to those usually associated with violent felonies (five years in prison and fines over $25,000 per violation).  Sen. McCaskill (D-Mo.) is expected to offer a series of NSBA-opposed amendments (SA 1421, SA 1424, SA 1427) that would increase the penalties for failure to use E-Verify still further to as high as $50,000 per violation and eight (8) years in prison.

Sen. Mark Begich (D-Alaska) is expected to offer an NSBA-supported amendment (SA 1285) that would provide alternative procedures for updating or correcting E-Verify database errors if the individual resides more than 150 highway miles from the nearest office of the Social Security Administration or in a location that is inaccessible by road from the nearest office of the Social Security Administration.  In the absence of this amendment, rural employees and employers may find it extraordinarily burdensome to correct errors in the database that occurred through no fault of their own.  Under the legislation in its current form, many rural residents will find their fundamental right to work and support their families impaired. The Begich amendment would solve this problem.

Sen. Portman (R-Ohio) is expected to offer an amendment (SA 1634) on E-Verify that contains a number of problematic provisions, including increased use of so-called knowledge-based verification which would require people to correctly identify information from their credit report before being cleared for employment.

House Actions

In the House, Speaker Boehner (R-Ohio) has indicated that no immigration bill will be brought to the floor of the House unless it has support from a majority of the Republican caucus.  It is anticipated that the House will begin passing a number of immigration related bills rather than a single comprehensive immigration package.

The House Judiciary Committee has reported out the Strengthen and Fortify Enforcement Act (The SAFE Act) (H.R. 2278).  To read more about the bill, click here. This legislation would strengthen immigration enforcement and grant states and localities the authority to enforce federal immigration laws. The Judiciary Committee will be marking up the Agricultural Guestworker Act (H.R. 1773) as well. It is expected that the Committee will take up the NSBA-opposed Legal Workforce Act (H.R. 1772) Wednesday which would make E-Verify mandatory and dramatically increase E-Verify related penalties.  It is expected to pass along party lines.

Please take a few moments TODAY to urge your Senators to support and/or oppose critical amendments that would make immigration reform workable for small business.