Five Myths about Amnesty for Illegal Immigrants in Senate Bill

By Jon Feere and Jon Feere on May 15, 2013

President Obama and the Gang of Eight senators are repeating a number of talking points designed to elicit support for amnesty, or as they call it, "'earned legalization," for immigrants who have come to the United States illegally. The so-called "path to citizenship" is part of a bipartisan Senate immigration bill.

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The current version of the bill provides immediate legal status and many benefits to illegal immigrants who pass a background check and pay some fees and fines. Applicants can meet additional requirements years down the road if they wish to switch this "provisional status" to green-card status and eventual US citizenship.

On close inspection, however, the hoops illegal immigrants are required to jump through do not amount to much. Each of the following five claims about the requirements for illegal immigrants to earn amnesty are not what they seem.

1. They Must Pay Back Taxes

Despite claims from amnesty advocates, the bill does not contain a requirement that illegal immigrants pay back taxes for the many years they have been working off the books. The only requirement in the bill is that illegal immigrants must iron out any existing problems they may have with the IRS. If the IRS has ever audited the illegal immigrant and requested payment of unpaid taxes, they would be required to pay them before receiving amnesty.

The reality is that the 45 percent of illegal immigrants estimated to be working off the books are not even on the IRS's radar and are highly unlikely to have ever been audited. There simply aren't any tax forms to audit. Of the remaining illegal immigrants, the number who have been audited by the IRS is also likely very small, simply because historically the IRS audits only about 1 percent of tax filers.

The current tax provision in the bill will not be of any consequence to the overwhelming majority of illegal immigrants who apply for the amnesty. That is why at least one amendment has been offered, thus far, that would actually require payment of back taxes for the period amnesty applicants have worked illegally in the United States.

The bill also does not require employers of illegal immigrants to pay FICA taxes for the years they paid illegal immigrants under the table.

Still, this should not come as a surprise. Right after the 1986 amnesty became law, Sen. Charles Schumer (D) of New York snuck a provision into a tax law that barred amnesty adjudicators from sharing the tax information of amnesty applicants with the IRS.

Mr. Schumer reasoned: “Obviously, we could not have a successful legalization program if by submitting an application an alien became vulnerable to an enforcement action by the IRS.” Similarly, the Bush administration requested Congress strip a back-taxes provision from the failed 2007 amnesty bill.

2. They Must Learn English

The 1986 amnesty also required some applicants to “learn English,” but in practice, attendance at a handful of classes was sufficient for the majority of them to meet this requirement. After the law’s passage, the Immigration and Naturalization Service (INS) weakened the language requirements administratively, substantially reducing the number of people who had to meet the requirement.

The INS decided that illegal immigrants who were over 64 years old or under age 16 did not have to prove they could speak English, nor did illegal immigrants over age 50 who claimed to have been in the country for 20 years. Those with at least a high school diploma were also exempted.

The INS also decided that completing 40 hours of an English/civics program met the amnesty’s requirements. While it is unclear how the Obama administration would interpret the language requirements in the current Senate immigration bill (which include exemptions similar to those found in the 1986 amnesty), it is unlikely that any illegal immigrant will be denied amnesty for not knowing how to properly conjugate a verb.

3. They Must Pass a Background Check

History suggests that the government does not have the capacity to carefully vet those who apply for amnesty. The 1986 amnesty resulted in the rubber stamping of hundreds of thousands of fraudulent applications. It also gave legal status to an illegal immigrant who would become the ringleader of the 1993 World Trade Center attack; his new status allowed him to travel freely around the world and pick up terrorist training. Certainly not all illegal immigrants are terrorists, but the government’s track record on keeping problematic individuals out of the country is not trouble-free.

Additionally, under the current Senate bill, crimes like identity theft and vandalism are not considered serious enough to deny a person amnesty, despite the fact that such crimes create real victims. In fact, two misdemeanors on an applicant’s rap sheet do not result in legal status being denied; and under the bill multiple misdemeanors could be counted as “one” strike, provided they occur on the same day. And any problematic history an illegal immigrant has in his home country is unlikely to be uncovered.

While illegal immigrants who have their amnesty applications rejected should be fast-tracked for deportation, history shows us that rejected applicants remain in the US, even if they pose a risk. Amnesties do not constitute a benefit to public safety.

4. They Must Pay a Fee and Fine

The bill calls for immigrants to pay both a fee and a fine. In a recent speech Mr. Obama used the word “penalty” to describe the fine illegal immigrants must pay. Fees, on the other hand, are meant to help cover the cost of administering an amnesty.

As to the fees, the bill does not outline what the fees would be – and there are waivers. The bill simply notes that illegal immigrants aged 16 and older who want legal status will have to pay a fee “in an amount determined by [DHS Secretary Janet Napolitano].” While it is unclear how much the fee would be, the bill says it should be enough to cover processing the applications. But in the next section, the bill gives Ms. Napolitano the power to limit the fee and to exempt “classes of individuals” altogether. With such broad authority granted by Congress, it is unclear whether this fee will even apply to most amnesty applicants.

US Citizenship and Immigration Services already offers waivers for those who cannot afford certain fees. In fact, the Obama administration created a form for such waivers in 2010, and similar waivers may apply to any future amnesty.

To obtain a fee waiver for some existing immigration benefits, applicants simply must show that they are currently using a welfare program. Our estimates, which are based on Census data, show that 71 percent of illegal immigrant households with children make use of one form of welfare.

As for the fine – or "penalty" – the current version of the Senate immigration bill requires illegal immigrants to pay $500 for the initial probationary legal status and another fine of $500 six years later. If a person wants to switch from this provisional legal status to green card status (and eventual US citizenship), he or she will have to pay a $1,000 fine many years down the road. But there are many exceptions.

For example, a person of any age who claims to have entered the US before age 16 and has a high school degree or GED does not have to pay. Finally, people under 21 years of age are also exempted. Furthermore, it is likely that some non-profits will assist applicants in paying the fines – some of which will be using taxpayer-provided funds to do so. The bill actually grants such groups $150 million to help illegal immigrants apply for the amnesty. In reality, the fine may not be much of a punishment at all.

5. They must go to the back of the line

Most illegal immigrants who claim to be eligible for this amnesty will be allowed to stay in the country and will be given time to apply. Those approved for provisional legal status under the amnesty (i.e. those who have passed the background check and paid the provisional $500 fine) will be immediately entitled to a work permit, a Social Security account, travel documents, drivers’ licenses, many federal public benefits, and many additional state-level benefits.

While the green card may be delayed for a period of years and would require – to the extent described above – payment of the remaining fines, resolution of any pre-existing problems with the IRS, and proof of learning some English, it is undeniable that those who receive legal status through the amnesty are in a much better position compared to those overseas who have applied to come to the US legally.

Consequently, amnesties encourage illegal immigration by sending the message around the world that illegal entry is a legitimate path to US citizenship. The US Border Patrol chief recently testified to Congress that even the discussion of the amnesty has already led to increases in illegal immigration.

The amnesty applicant is only in the “back of the line” in the sense that the green card – and eventual US citizenship – would allegedly be delayed until after all existing green card applications are processed. But the fact is, the real back of the line would be in the illegal immigrant’s home country.

It remains unclear how each of these requirements for citizenship would be administered. If there is to be an amnesty, all requirements must be made more serious and each should be met at the outset before illegal immigrants receive any type of legal status or work permit. But ultimately, enforcement of immigration laws, rather than mass legalization, is the only legitimate response to the problem.

[Published May 13 by the Christian Science Monitor.]