Amnesty Under Hagel-Martinez

By Steven A. Camarota on June 1, 2006

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Based on the outcomes of the last amnesty in 1986, we expect that nearly 10 million illegal aliens will receive amnesty under the Hagel-Martinez bill. That is, they will legalize and eventually apply for permanent residence and be eligible for citizenship. As in 1986, we also expect that one-fourth (2.6 million) will get amnesty fraudulently. The bill will also allow an estimated 4.5 million family members of illegal aliens to join their legalized relatives, for a total of 14.4 million beneficiaries. These estimates do not include the very large increases in future legal immigration in the bill.

  • Based on the 1986 amnesty, we estimate that slightly over 70 percent (7.4 million) of the 10.2 million illegals eligible for the three amnesties in Hagel-Martinez will come forward and receive amnesty legitimately. That is, they will gain legal status allowing them to live and work in the United States and eventually apply for permanent residence and then citizenship.
  • In addition to the 7.4 million expected to receive amnesty legitimately, we estimate that, as in 1986, there will be one fraudulent amnesty awarded for every three legitimate ones. This means that nearly 2.6 million additional illegals will legalize fraudulently, for a total of 9.9 million.
  • In addition to the amnesty beneficiaries, the bill will allow an estimated 4.5 million spouses and minor children currently living abroad to immediately join their newly legalized relatives for a total of 14.4 million people who will benefit from the bill’s amnesty provisions.
  • Our assumption that the share of illegals who come forward will be similar to the share in 1986 may be too low because, unlike the last legalization, illegals now know that amnesties are real and not a ruse by the government to deport them. Moreover, because the border is now more difficult to cross illegally, legalization is a more attractive option.
  • Our estimate of 2.6 million fraudulent amnesty recipients, based on the 1986 amnesty, may be too low as well because the false-document industry is now more developed. Moreover, the overworked immigration bureaucracy already has a severe fraud problem according the Government Accountability Office. As its workload mushrooms with amnesty, fraud will become even more difficult to detect.
  • Of the 14.4 million illegals and their family members who will receive amnesty, we estimate that 13.5 million will eventually become permanent residents, which means they can stay as along as they wish and apply for citizenship. The rest can be expected to die or return home before becoming permanent residents.
  • The above estimates do not include the bill’s very large increases in future legal immigration, which is expected to double or triple from one million a year under current law.

The Last Amnesty

The IRCA Law of 1986. The 1986 Immigration Reform and Control Act (IRCA) offers the best insight into the likely course that the Hagel-Martinez amnesty would take because the legalization provisions in the Hagel-Martinez bill are very similar to the IRCA amnesty.1 Like the 1986 amnesty, applicants must have lived in the United States for a certain period of time or have worked in agriculture, pay a fine, and learn English. The 1986 law had two amnesty provisions, one for those who had entered the country prior to 1982; and another for those who had worked 90 days in agriculture. At the time the bill passed, an internal Immigration and Naturalization Service estimate showed that there were between 1.34 and 2.66 million illegal immigrants in the country who could qualify for the pre-1982 amnesty.2 Slightly under 1.6 million individuals ultimately used the pre-1982 amnesty to legalize. Thus, the implied rate of application and approval was between 60 and 100 percent. Subsequent research suggests that the actual number of illegals was likely closer to the 2.66 million figure, indicating that between 60 and 70 percent of those eligible legalized.

The agriculture legalization in IRCA was referred to as the Special Agricultural Worker (SAW) program. The best estimate at the time indicated that 400,000 illegal aliens had worked in agriculture for at least 90 days and would qualify for the amnesty.3 It seems likely that virtually all of those eligible for the SAW amnesty received it. Considering the two programs together, there were a total of 3.06 million illegals eligible for amnesty under IRCA — 2.66 million here prior to 1982 and 400,000 SAWs. Of the 3.06 million, two million, or an estimated 65 percent, received amnesty legitimately.

Fraud in the Last Amnesty. In addition to those who received amnesty, there is also widespread agreement that the SAW program in particular was rife with fraud. At the time, The New York Times described SAW as "one of the most extensive immigration frauds ever perpetrated against the United States government."4 Philip Martin, a professor at the University of California at Davis and one of the leading experts on the program, described it as "rife with fraud."5 In total, nearly 1.1 million illegals received amnesty under SAW, even though there were only an estimated 400,000 eligible. This implies 700,000 fraudulent legalizations. The 700,000 fraudulent beneficiaries were equal to 35 percent of the two million legitimate amnesties and accounted for one-fourth of all amnesty beneficiaries. There was also fraud in the pre-1982 part of the IRCA amnesty; however it is much more difficult to quantify.6 But even focusing just on the fraud in the SAW program provides at least a conservative estimate for the likely scale of fraud in the current proposed amnesty.

How Many Will Legalize?

What Is Amnesty? We use the terms amnesty and legalization interchangeably in this analysis. By amnesty or legalization we mean that persons are given some kind of legal status, are not subject to deportation, and can work in the United States. In our view, any policy or legislation that does not require those who break the law to abide by it, but instead suspends the normal penalty and in some way changes the law to accommodate violators is an amnesty. An amnesty in the immigration system is any change that allows people who would otherwise be subject to deportation to stay in the country. Of course, an amnesty can be very generous, such as one that allows illegal immigrants to receive Lawful Permanent Residence (LPR), which allows people to live in the country for as long as they want and apply for citizenship if they wish. Those with LPR status are also referred to as permanent residents or as having a green card. An amnesty can also be less generous, such as one that might let illegal aliens stay in the country for a few years and then require them to go home. In either case, the normal punishment of deportation is suspended and the law is altered in some way to accommodate lawbreakers. As we will see, Hagel-Martinez is unambiguously an amnesty. Of course, this does not necessarily mean it is bad public policy. But it is important to describe it accurately so as not to create confusion. However, if one does not like the term amnesty, legalization is perfectly accurate in our view.

Hagel-Martinez Amnesty. The Hagel-Martinez bill, or Senate bill 2611 (also called S. 2611), has three separate amnesties or legalizations: One for illegals in the country five or more years, one for those who have been here two to five years, and one for those who work in agriculture. Like the 1986 legalizations, the current amnesties involve paying a fine and undergoing a background check. The largest of the new amnesties is for those in the country five or more years. Illegal aliens in this category are placed on what can be described as a "glide path" to Lawful Permanent Residence (LPR). Individuals in the glide path can start to apply for LPR status, also called a green card, once the immigration service has worked through all existing applications or after eight years, whichever is shorter.

There is also an amnesty for illegals who have been here for between two and five years. These individuals can apply for what is called "deferred mandatory departure" (DMD), which can last up to three years. Those with DMD can, like those on the glide path, live and work in the United States. Those with DMD can also at any time apply for the new "guest worker" program referred to as the H2C visa, which Hagel-Martinez creates. To apply for the H2C program, those with DMD will have to go to a port of entry to apply. There is no requirement, however, that they go back to their home countries or stay out of the United States for any length of time. Although it is called a "guest" worker program, the H2C program allows individuals to begin applying for green cards after four years, or sooner if employers apply on their behalf. Although there is an annual limit of 200,000 on the H2C program, those with DMD (i.e., former illegal immigrants) are explicitly exempt.

The third amnesty is for illegal immigrants who have worked in agriculture for a certain number of hours in the years prior to the enactment of S. 2611. These individuals can sign up for the new "blue card" program, the fine for which is smaller than in the other amnesties. Individuals with a blue card can then apply for LPR status after working in agriculture for an additional three to five years. While there are some differences in the way each of these amnesties works, they all share in common the fact that recipients can live and work in the United States and have the opportunity to eventually receive green cards and citizenship.

How Many Will Receive Amnesty? The top portion of Table 1 shows the number expected to legalize legitimately in each of the three categories. Although the actual size of the illegal population is unknown, some research indicates that there are 7.7 million illegals who have been here for five or more years and 2.2 million who have been here for two to five years.7 The number of illegal farm workers who could qualify under the work provision of the "blue card" program has been estimated by the Congressional Budget Office at 1.1 million.8 This estimate seems reasonable, but not all of these individuals have been here for at least two years. Based on our analysis of illegals in the Current Population Survey who work in agriculture, we estimate that 75 percent (830,000) have been here for more than two years and should be excluded from the potential pool of nearly 10 million beneficiaries for the two non-agricultural amnesties in S. 2611. We exclude the 830,000 agricultural workers here for more than two years because the blue card is a cheaper and faster route to a green card and therefore we expect those who can take advantage of that program will choose to do so. This means that the potential applicant pool for the two non-agricultural amnesties is 9.07 million. To this number must be added the 1.1 million who can apply for the blue card program, for a total potential applicant pool of 10.17 million for the three amnesties.

Based on the last legalization, we estimate that 70 percent (6.35 million) of the 9.07 million illegals eligible for the two non-agriculture amnesties will come forward and legalize. Of the 1.1 million eligible for the blue card agricultural amnesty we estimate that 90 percent (990,000) will receive it. While it seems that virtually all of those eligible for the SAW amnesty in 1986 received it, the high rate of fraud in that program makes it difficult to say for certain. To allow for the possibility that some may not apply, we assume that only 90 percent will come forward and legalize in this amnesty. This should create a total population that will receive amnesty legitimately of 7.34 million (6.34 million + .99 million). Again, it must be remembered that this is our estimate for the number who will be legalized and put on a path to receive LPR status in the three amnesty categories. It is not the number who will ultimately receive LPR status or who will choose to get citizenship.

A Conservative Estimate of Amnesty. We feel our estimate for the number of amnesty beneficiaries is conservative. As already discussed, in the 1986 amnesty between 60 and 70 percent of those here pre-1982 eventually came forward and legalized. In addition, it seems that virtually all of those eligible for the 1986 farm worker amnesty legalized. Unlike in 1986, when there was significant fear among illegal aliens that amnesty was a trick designed to fool them into revealing themselves so they could be deported, illegals now know that amnesties are real. Thus, a much higher percentage of qualified illegals are likely to come forward this time. Moreover, while hundreds of thousands of illegals continue to successfully cross the border each year, it has become more difficult to do so. This fact makes legalization a more attractive option now than in 1986 when illegally entering the country was easier and less dangerous. Thus our estimate of 7.34 million may be too low.

Fraudulent Applications. In addition to legitimate applications, we can expect a large number of fraudulent applications. Assuming the same ratio of legitimate to fraudulent legalizations as in 1986, 2.57 million illegal aliens who do not qualify for it will receive amnesty in one of the three categorizes. The figures for fraudulent amnesties are incorporated into our overall estimates shown in Table 1. The table shows that 9.91 million illegal aliens are expected to receive amnesty both legally and fraudulently. As in 1986, fraud will include those who do not qualify because they entered after the cut-off dates, did not work in agriculture for the required period of time but still used the agricultural amnesty, and those who simply entered the country to get amnesty. It will also include others who may meet the residence requirement for legalization, but otherwise do not qualify because of prior bad acts. All these individuals can be expected to use deception, false documents, false identity, or other forms of fraud.

In Table 1 we assume the fraud rate will be the same across amnesty categories. Unlike in 1986 when the SAW program was the most attractive to fraudulent applicants because of its weak verification requirements, each of the current amnesty categories has features that make it attractive. The blue card is the cheapest and fastest route to a green card. Getting DMD status on the other hand, while it requires a trip to a port of entry, does not require continuing farm work to get LPR status and it offers access to the H2C program and the potential of a green card faster than the glide path. On the other hand, the glide path amnesty is not as expensive as DMD status, nor does it require continuing work in agriculture, nor a trip to a port of entry. In Table 1 we simply assume that fraud will be evenly spread over the three categories.

Our Fraud Estimate May Be Too Low. With a much larger illegal population today than in 1986, the false document industry is much more developed now. Fraudulent applicants can be expected to tap into this trade in order to obtain the fake utility bills, rent receipts, pay stubs, affidavits, and other false documents necessary to prove residence or work in agriculture. Also, the Government Accountability Office (GAO) has reported that fraud is already commonplace in the processing of immigration applications. One official in a GAO report estimated that one-third of current applications involve fraud.9 According to the GAO, one reason fraud is so endemic to the system is that the immigration bureaucracy is overwhelmed with its current workload. The very complex and difficult-to-verify requirements of Hagel-Martinez are also an invitation to fraud. The new amnesty is not only more complex than the 1986 amnesty, it is much larger, with four times as many potential applicants. As the workload mushrooms with amnesty, fraud will become even more difficult to detect and thus a more tempting option for those who are not eligible for legalization.

Family Members of Illegals Currently Living Abroad. In addition to amnesty for the illegal immigrants themselves, Hagel-Martinez allows the spouses and minor children of illegal immigrants who receive amnesty to enter the United States to join their illegal immigrant relatives. With the exception blue card holders, whose relatives may enter but do not get a blue card, the relatives receive the same status as their illegal-alien family member. In all three cases, including the relatives of blue card recipients, the arriving relative can live and work in the United States and is not subject to deportation. They can also apply for LPR status with their legalized relatives. We estimate that for every 10 people who receive amnesty, 4.5 relatives currently residing abroad can be expected to join them. This is consistent with estimates prepared by the Heritage Foundation.10

In total, we expect nearly 4.5 million people to come to the United States to join their amnestied relatives. We estimate that the total number of people who will benefit from the amnesty provisions of Hagel- Martinez will be 14.41 million. This includes illegal immigrants who receive amnesty legitimately, those who use fraud, and the relatives living abroad of these individuals. The total figure of 14.41 million can be found at the bottom of Table 1. It is worth mentioning that there is no numerical cap on the amnesty for illegal aliens or for their relatives, thus there is no limit on the number of individuals who may ultimately receive amnesty.

Share Expected to Get LPR Status. Of the 14.41million illegal immigrants and their family members expected to legalize under Hagel-Martinez, we expect that 13.5 million will ultimately receive LPR status. Table 2 shows our estimates for the share of each amnesty category that will eventually become permanent residents (LPR status, also referred to as having a green card). In short, we estimate that roughly 550,00 illegal aliens who initially legalize will eventually die or return home prior to receiving a green card and 350,000 of their relatives who will do the same. These estimates are based on an annual return migration rate of .5 percent and a death rate of .4 percent.11 We apply these return-migration and death rates until the amnestied individual receives his or her green card.

Table 3 shows in more detail the basis for the estimates summarized in Table 2. While the vast majority of amnesty recipients who become LPRs will do so under the provisions of S. 2611, some can also be expected to use existing provisions to get their green cards. So, for example, if someone in the blue card category marries a U.S. citizen, he can be expected to receive a green card almost immediately under the exiting categories for the spouses of citizens. The immigration service has estimated that 3 percent of the illegal population receives LPR status each year under existing law by doing things like marrying an American citizen, getting political asylum, or otherwise meeting the green card requirements in one of the existing categories.12 In Table 3 we assume that this trend will continue for those who legalize under Hagel-Martinez. For this reason, the table shows 3 percent of amnesty beneficiaries receiving LPR status annually even in the years before they are eligible for one under the terms of S. 2611.

As shown in Table 3, the family members of legalized illegal aliens are expected to arrive from abroad in the first three years after S. 2611 goes into effect, with one-third arriving each year. Death and return-migration are shown in the table. The bottom of the table reports the total number expected to get LPR status. In the long run, half to three-fourths of the 13.5 million who receive LPR status can be expected to eventually get citizenship. However, the share that will become citizens is beyond the scope of this analysis.

Congressional Budget Office Estimates. A recent Congressional Budget Office (CBO) report tried to estimate the number of illegal aliens who will legalize under the bill.13 The report is difficult to evaluate, however, because the methodology of the report is not well explained. While there are some differences between our estimate and that of the CBO, the main difference is that the CBO assumes zero fraud. Since fraud was such a large problem in the last amnesty, and continues to be a severe problem, we feel that any estimate that does not include fraud simply cannot be accurate. Assuming the same fraud rate as the 1986 amnesty has the direct effect of adding 2.6 million more people to our estimate.


The Hagel-Martinez bill is the most far-reaching immigration bill ever conceived by Congress. In addition to the amnesty provisions of the bill, it dramatically increases green cards in the future and changes immigration law in numerous other ways. This Backgrounder focuses only on the size and scope of the three amnesty categories in the legislation. We estimate that if the bill becames law, almost 10 million illegal aliens will legalize, 2.6 million of whom will do so fraudulently. In addition, nearly 4.5 million family members of illegal immigrants currently living abroad will be allowed to join their newly legalized relatives for a total of 14.4 million people who will benefit from the bill’s amnesty provisions. We also estimate that, of the 14.4 million who gain legal status, some 13.5 million will eventually be awarded Lawful Permanent Residence (LPR), which means they can stay in the country as along as they wish and apply for citizenship.

It must be remembered that illegal immigration is always very difficult to quantify, so although the estimates in this report are based on the best available information, they are still subject to the high level of uncertainty that surrounds illegal immigration. It is also worth noting that there are no numerical limits on the number of people who can benefit from the amnesty. This fact, coupled with the high rate of fraud that already exists in the immigration system, means that the number of people who ultimately use the amnesty provisions in Hagel-Martinez could turn out to be much larger than estimated here.

End Notes

1 The main difference between the 1986 amnesty provisions and those found in the Hagel-Martinez bill is that illegals have to pass through an intermediate stage and do not get Lawful Permanent Residence (LPR) immediately, but instead have to apply for LPR status after a number of years. Still, prior to receiving LPR status illegal aliens can work legally in the United States, visit their home countries, and basically enjoy all the rights of LPR status. Once they receive LPR status, they can apply for citizenship after five years. The fact that illegals have to go through an intermediate status before becoming LPRs does not seem to be a meaningful difference between the 1986 amnesty and the Hagel-Martinez amnesty because this intermediate status is so similar to LPR status. In fact, the only meaningful difference is that illegals will have to wait longer to get citizenship.

2 Memorandum titled “Estimated Pre-1986 Population Eligible to Legalize, by State,” dated October 10, 1986, to Mark Everson the Executive Associate Commissioner of the Immigration and Naturalization Service was prepared by Robert Warren of the Office of Plans and Analysis.

3 A detailed analysis of California showed that there were 115,000 to 188,000 individuals who had worked in agriculture long enough in 1986 to qualify for the SAW program. Based on those numbers there should have been some 400,000 nationally. Yet in California alone well over 400,000 applications were received. See “SAWs, RAWS and California’s Labor Market,” by Professor Philip L. Martin UC Davis, August 1988. David North, a former Assistant to the U.S. Secretary of Labor, also estimates that the SAW amnesty was two or three times higher than expected, which is consistent with the 400,000 figure. See “Lessons Learned From the Legalization Programs of the 1980s,” by David North, Center for Immigration Studies Backgrounder, January 2005, ; and David North and Anna Mary Portz, The U.S. Alien Legalization Program, Transcentury Development Associates, Washington, 1989 (written for the Ford Foundation).

4 Robert Suro, The New York Times Nov. 12, 1989 p. A1.

5 “SAWs, RAWS and California’s Labor Market,” by Professor Philip L. Martin UC Davis, August 1988.

6 In their report for the Ford Foundation, David North and Anna Mary Portz found internal INS statistics that showed that 888,637 legalization applications in both programs had been marked for denials for local office staff, but on the same date (March 24, 1989) only 60,020 final denials had been issued. Based on the number of applications that were eventually approved, the overwhelming majority of these individuals ultimately received amnesty. See David North and Anna Mary Portz, The U.S. Alien Legalization Program, Transcentury Development Associates, Washington, 1989.

7 The Pew Hispanic Center has published a series of estimates on the size and years of arrival of the illegal population, which can be found at their web site:

8 See Congressional Budget Office Cost Estimate: S. 2611 Comprehensive Immigration Reform Act of 2006, May 16 2006, p. 24. See GAO reports GAO-06-259 GAO-02-66, and .

9 Immigration and Benefit Fraud: Focused Approach Is Needed to Address Problems, General Accounting Office, January 2002. GAO-02-66.

10 See Senate Immigration Bill Would Allow 100 Million New Legal Immigrants over the Next Twenty Years at . Estimate is also based on our analysis of married illegals in the Current Population Survey who are not living with their spouses, as well as estimates of illegals from the Pew Hispanic Center and their “Survey of Mexican Migrants.” It seems likely that there are three to six million spouses and minor children of illegal immigrants currently living outside of the United States.

11 The Census Bureau has estimated that 1 percent of the population here in 1990 returned each year in the 1990s. See U.S. Census Bureau publication Measurement of Net International Migration to the United States: 1990 to 2000, Working Paper #51 at . However, the return migration rate for those who legalize under Hagel-Martinez will be significantly lower since staying in the United Stats is the key to getting LPR status. This creates an enormous incentive to stay. Therefore, we assume that the out-migration rate will be half of 1 percent — .5 percent. The Immigration and Naturalization Service has also estimated a death rate of .4 percent and we apply that rate to those who will be amnestied. See Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at . We assume that rate for those who legalize until they receive LPR status.

12 The 3 percent estimate can be found in Table C of the 2003 report, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990 to 2000 at:

13 The CBO report on Hagel-Martinez (S. 2611) can be found online at .

Steven A. Camarota is the Director of Research at the Center for Immigration Studies.