Sen. Marco Rubio’s (R-FL) plan to introduce a bill to provide legal status—but not citizenship—for undocumented youth ran into an obstacle when Speaker of the House John Boehner (R-OH) announced on April 26 that such a proposal would not pass his chamber. As Speaker Boehner put it, “We’re operating in a very hostile political environment and to deal with a very difficult issue like this I think would be difficult at best.” Nevertheless, Sen. Rubio has been making a big push for his proposal, talking to reporters, members of the Congressional Hispanic Caucus (who, afterward, could only muster a bland statement saying that, “we look forward to learning more about his plan”), immigration advocates, and DREAM Act-eligible students.
Our desire for bipartisan engagement on immigration policy reform leaves us hoping that Sen. Rubio can, in fact, lead his party out of the wilderness on this issue with a smart policy that advances the nation’s interests. Given the complexity of immigration law, we will withhold final judgment on the wisdom of Sen. Rubio’s proposed policy until the bill’s actual text can be reviewed.
In the meantime, however, the media coverage generated by the senator’s efforts to pitch his bill, along with his own public and private statements, has provided enough of a window into the proposal to raise some early red flags. As there is no written bill at present, and the devil is, as always, in the details, below we offer what we know about what might be included in the bill and explain the real-world concerns created by those provisions.
What we know (or think we know) about the bill
Sen. Rubio has voiced opposition to the DREAM Act—a bipartisan bill from its inception more than 10 years ago—because it contains a legal mechanism that would allow youth brought to the United States before age 16 to earn permanent residence and eventually citizenship by attending college or the enlisting in the military. Sen. Rubio has proclaimed that such a mechanism equals “amnesty” and is therefore unacceptable to Republicans. Still, he explains,“I do support, and have consistently supported … the notion that we need to accommodate these kids who, through no fault of their own, find themselves in this legal limbo.”
He addresses his “amnesty” concerns in his bill by allowing undocumented youth who meet DREAM Act-like criteria to receive a newly created nonimmigrant visa—a temporary visa—instead of permanent residence. If they subsequently satisfy DREAM Act-like requirements—attending college or performing military service, for example—they would be eligible to remain in the United States and maintain lawful status. The new nonimmigrant visa that Sen. Rubio contemplates would be renewable in perpetuity (it, in other words, is basically a permanent temporary visa) and would authorize the beneficiaries to work and travel legally.
The “amnesty” canard
In important respects Sen. Rubio’s bill would provide the same benefits as permanent residence—i.e., a “green card.” It would redress the central real-world impediments confronting these kids by ending their fear of deportation and making it lawful to work, drive, and travel out of the country. This makes it highly appealing to the kids who have been traveling roads with nothing but dead-ends ahead.
But it also makes it exceedingly difficult to understand why the DREAM Act amounts to “amnesty” and Sen. Rubio’s proposal does not. Both approaches would create a new mechanism to legalize undocumented youth. Both approaches would authorize the beneficiaries to work and travel freely, which they currently cannot do. Both, in other words, provide substantial benefits to individuals not currently entitled to them. Under his (in our opinion, misguided) “amnesty” test, it is hard to see why his proposal passes while the DREAM Act fails.
Distinctions that matter
The conceptual distinction that leads Sen. Rubio to conclude that granting one set of benefits amounts to amnesty, while granting another very similar set of benefits does not, is elusive at best. But the practical consequences of this definitional hair-splitting are significant.
By providing a way for these kids to earn permanent temporary visas but not permanent residence, many or most of them will effectively be blocked from ever becoming citizens. Sen. Rubio has assured us that there will be no “bar” to citizenship—but there will also be no independent path to permanent residence.
The distinct advantage of permanent residence, however, is that after a number of years, the individual can apply for naturalization and—upon showing good moral character, command of the English language, and knowledge of basic American civics—become a full citizen. With no specific pathway to permanent residence, this bill would leave to luck and chance the possibility of ever gaining citizenship.
Individuals in this new nonimmigrant status would have two avenues to permanent residence: sponsorship by a close relative (in all likelihood via marriage) or sponsorship by an employer. But our legal immigration system is woefully backlogged, with waiting times stretching into the decades for most green cards.
So how long would it take eligible young people to receive citizenship under Rubio’s proposal?
Although there are a number of employment-based visa categories, the EB-3 category—for “skilled workers, professionals, and other workers”—is the most likely category under which eligible young people could obtain a green card. But eligibility for this category requires a college degree, sponsorship by an employer, and a finding by the U.S. Department of Labor that there is no qualified and available American worker able to perform the job.
Take, for example, an immigrant from Mexico. After a determination of eligibility by the departments of Homeland Security and Labor, the individual would currently need to wait six years before a green card became available. After receiving employment-based permanent residence, an immigrant must wait another five years to apply for citizenship, for a total waiting time of at least 11 years. For an immigrant from India, the wait is even longer—10 years for permanent residence, and an additional five years for citizenship.
These waiting periods are only based on current backlogs. Each month the State Department issues a Visa Bulletin showing current visa availability. As of May 2012, for example, to receive an EB-3 visa, an immigrant from Mexico would have to have applied prior to May 1, 2006. But because the number of available visas is fixed on an annual basis (with just more than 40,000 visas given out to the EB-3 category) the visa availability date fluctuates based on demand.
This means that while it might currently take six years to receive a green card for people who applied in 2006, with increased demand—say, for example, from a new crop of young people eligible through Sen. Rubio’s plan—it will take far, far longer. If Sen. Rubio’s bill provides legal status to 1 million to 2 million individuals, the demand on this visa category will increase exponentially, even if only a portion of those individuals seek permanent residence through this portal.
Of course, in addition to employment sponsorship, nuclear family members can also sponsor relatives for green cards. The most direct path to legal permanent residence and eventually citizenship is marriage to a U.S. citizen because there are no annual numerical limitations. But do we really want to make these children’s futures and full integration to American society contingent on their marriage to a citizen?
If the young person marries a legal permanent resident (i.e., a green card holder) instead of a U.S. citizen, under the current backlogs he or she would have to wait at least three years for a visa to become available and another five years for citizenship for a total waiting period of eight years—at the absolute minimum.Those backlogs, however, would surely swell significantly (meaning much longer waiting periods) with the increased demand on the category that would result from legalizing this group of young people that Sen. Rubio’s bill addresses. But even if eight years, 10 years, or even 20 years of waiting sounds like a reasonable price to pay for their parents’ transgressions, it is still contingent on their getting married.
What does this say to, for example, gay  and transgender youth who, even if they live in a state that has legalized gay marriage, cannot receive a green card because of it? What about people who want to get married but can’t find a spouse? What about undocumented youth who have married each other? To be sure, there are other ways to obtain a family-based visa, but these take far longer and are less likely to be available to an undocumented youth.
Political detour from good policy
Instead of a clear road forward, then, Sen. Rubio’s plan would lead a significant population into a nonimmigrant limbo for decades or even for life. For a population of young people who have been wholly without protection for most of their lives, the prospect of any type of legal status that allows them to pursue their dreams is desperately tantalizing. But to consign hundreds of thousands of people who are American in all but their papers to an indefinite, potentially nonexistent path to permanent residence or citizenship because “that’s all the politics will bear” is deeply cynical.
Even accepting that this is a good faith effort to break political gridlock around this issue, the end result subverts the nation’s interest in a well-integrated, fully participatory citizenry. Without citizenship these individuals will never be able to vote, gain security clearances needed for any number of jobs, run for office, or even obtain a U.S. passport and the international protections that it accords. Going down this path will ultimately fracture, not unify, our country.
To be certain, we strongly believe that half a loaf is better than no bread at all. We certainly won’t reject a half loaf without inspecting it, especially given how hungry we are for reform. But whether the bread is poisonous or nutritious depends on the actual ingredients and whether it is fully baked. We look forward to seeing the details of Sen. Rubio’s proposal—and who he has in the kitchen with him.
Bottom line: Show us the bill, and show us the votes. And then we’ll talk.
Marshall Fitz is the Director of Immigration Policy and Philip Wolgin is a Policy Analyst with the Immigration team at the Center for American Progress.
The term “gay” is used as an umbrella term for people who identify as lesbian, gay, or bisexual.