Thursday, March 29, 2007

Analysis Of Flake-Gutierrez (Yes, it really is that bad)


The Flake-Gutierrez bill grants an almost guaranteed "pathway to citizenship" to most of the 12-20 million illegal immigrants in the United States. It provides a two-step amnesty. First, illegal immigrants become "conditional nonimmigrants", and then after six years of work in the U.S. they (and their spouses and children who have also been illegally in the U.S.) can become permanent residents. (section 601)
The Flake-Gutierrez bill makes illegal immigrants pay fines and sit through English classes in order to claim that the bill does not provide amnesty. Yet, when a 1986 law had similar requirements, everyone agreed it was amnesty. In fact, Black's Law Dictionary states that "the 1986 Immigration Reform and Control Act [IRCA] provided amnesty for undocumented aliens already present in the country." Yet, IRCA itself required illegal immigrants to wait, pay a monetary fine, and "learn" English. The Flake-Gutierrez bill sells citizenship, the highest honor our country can bestow, for a grand total of $2,500. (sections 601-02).

The Flake-Gutierrez bill makes illegal immigrants turned conditional nonimmigrants "touch-back" at a U.S. border port-of-entry in order to apply for the next step towards amnesty - permanent residence. Such a scenic bus trip does not erase the fact that illegal immigrants have received amnesty. Current immigration law provides that illegal immigrants cannot return to the U.S. for ten years if they have been here illegally for over a year. A provision that waives this penalty in order to let illegal immigrants symbolically touch-back is in and of itself amnesty. And, of course, even the bill's touch-back requirement can be waived for a multitude of reasons including "extreme hardship". (section 602)

Illegal immigrants who seek amnesty do not have to pay back taxes owed for any period before they became "conditional nonimmigrants". Even for taxes owed during this six year period, they only have to enter into an "agreement" with IRS to eventually pay the taxes. (section 602)

The 1986 amnesty resulted in massive fraud. The Flake-Gutierrez bill will engender similar fraud, as illegal immigrants who seek amnesty can show fraudulent pay stubs, time sheets, and even "sworn affidavits", "remittance records" and records of day labor centers to "prove" that they have worked for six years as "conditional nonimmigrants". This will create a cottage industry for fraudulent documents. (section 602)

The Flake-Gutierrez bill requires American taxpayers to fund grants to private organizations to help illegal immigrants apply for amnesty. (Section 662)

Illegal immigrants are not eligible for most kinds of welfare. Once they are granted amnesty and then become citizens, they become eligible for billions of dollars in public assistance. While some claim that those granted amnesty will be paying taxes, the overwhelming majority will fall well below the income levels where any real federal taxes apply. The Heritage Foundation estimates the eventual fiscal cost to the taxpayers of amnesty will be $30 billion per year.

Under the bill, if an illegal alien applies for amnesty, the federal government cannot use the information provided for anything other than adjudicating the petition. If the application is denied, this information cannot be used to remove the alien regardless of whether the underlying application was fraudulent, and in most cases cannot be referred to law enforcement authorities for criminal prosecution. The bill imposes a $10,000 fine on any government employee who even permits that information to be examined in violation of this confidentiality provision. A similar feature in the 1986 amnesty resulted in massive fraud. (Section 604)

The Flake-Gutierrez bill requires that to receive amnesty, an alien must establish that he was not legally present in the U.S. on a temporary visa on June 1, 2006. So, any alien who was here legally on that date is barred from receiving the amnesty. A tourist who was complying with the terms of his visa is barred from amnesty, but not a tourist who purposely overstayed a visa and got a job illegally. (Section 601)
Amnesty recipients will receive Social Security benefits based on their illegal work. This will take from the Social Security trust fund of billions of dollars needed to pay for the retirement of Americans. Since most illegal immigrants worked under fake Social Security Numbers or Numbers stolen from U.S. citizens, it will create unknown costs for the Social Security Administration. (Section 211 of the Social Security Protection Act, Pub L. No. 108-203)

The Flake-Gutierrez bill does not send illegal immigrants to the "back of the line". Currently, there are over 3 million aliens who have been approved for green cards as relatives of U.S. citizens or permanent residents and who have been waiting patiently overseas for visas to become available - some now waiting 23 years. They will continue to have to wait overseas for years, even decades, for their visas to become available. Under the Flake-Gutierrez bill, millions of illegal immigrants who will claim to have been here illegally since 2006 can work in the U.S. and be eligible for permanent residence eight years after enactment, no matter how may persons who played by the rules will still wait for their green cards overseas. It is simply not the case that they will all get visas before amnesty is handed out to the illegal immigrants. (Section 602)

Under the Flake-Gutierrez bill, employers are absolved of any civil or criminal tax liability related to the prior employment of illegal aliens seeking amnesty, and if they give illegal immigrants employment records so that they can pursue amnesty, the bill absolves employers of any civil or criminal liability for having illegally employed the aliens. (Section 607)

Illegal immigrants have other options to apply for amnesty under the Flake-Gutierrez bill - including the DREAM Act (title VI, subtitle B) and the AgJobs Act. (title VI, subtitle C)


The American people overwhelmingly reject increased levels of legal immigration, which are already at about 1 million persons every year. However, the Flake-Gutierrez bill will likely double legal immigration levels at the least. A very conservative estimate puts the bill's increase at about 700,000 additional green cards a year - as family preference green cards increase by a quarter million a year, employment-based green cards increase by 150,000, and an unlimited number of green cards are provided for spouses and children of employment-based immigrants (currently, about one dependent accompanies each such immigrant). However, the actual increase will likely be dramatically higher. Why? The bill creates additional categories with unlimited numbers of green cards available each year - such as for foreign workers who will work in any occupation the Secretary of Labor declares has a shortage of workers, and for many foreign workers with graduate degrees. (sections 501, 508) In addition, the bill allows any alien already in the U.S. on a temporary visa who ends up on an employment-based green card waiting list because the cap has been reached to stay and work in the U.S. for however long it takes for a green card to become available - which would have the practical effect of making any employment-based cap illusory. (section 511)

The quota for H-1B temporary visas for professional workers increases from 65,000 to a maximum of 180,000 a year. In addition, all aliens with graduate degrees from U.S. universities are exempt from the quota, as are all aliens with foreign graduate degrees in math or science fields. This will have the effect of doubling the quota to about 360,000 a year, since about half of all H-1B aliens have graduate degrees. (section 507)

Currently, the President decides each year on the number of refugees to allow into the U.S. who we have determined have a well founded fear of persecution. The Flake-Gutierrez bill gives non-U.S. organizations the absolute right to send a potentially limitless number of persons to the U.S. Foreign organizations will be able to direct to the U.S. government most any woman anywhere in the world who has a "credible fear of harm related to her sex" - and we will have no choice but to accept them. This standard is so low that conceivably every women in the 3rd World will have an absolute right to come to the U.S. No showing of persecution is necessary. Similar rights are granted any alien under 18 who has a "credible fear of harm related to his or her age". This standard is so low that conceivably every minor in the 3rd World will have an absolute right to come to the U.S. (section 517)
Back to top.


The Flake-Gutierrez bill allows 400,000 "new workers" plus an unlimited number of spouses and minor children to come to the U.S. in the first year, and that figure can easily reach 600,000 (plus spouses and minor children) in future years. The foreign workers can stay for up to six years. The workers' employers can apply for green cards for them at any time, and the workers can apply on their own after having worked in the program for five years. Once the green card applications are filed, the workers can stay and work as long as it takes for a green card to become available. Thus, there could be many millions of these foreign workers and their families in the country at any one time in the future. (sections 401, 407)
The bill allows former illegal immigrants and aliens who have been previously removed to become "new" workers. (section 402)

Employers are specifically allowed to lay-off American workers and replace them with "new" foreign workers as long as they lay-off the Americans more than 90 days before or after they file the petitions for the foreign workers. (section 402)
Back to top.


Most of the Flake-Gutierrez bill's "tough" enforcement provisions are merely meaningless and toothless authorizations for personnel, requests for DHS to issue endless reports and plans and strategies, and instruction to DHS to do what current law already demands they do (such as implementing exit controls under U.S.-VISIT). (see, e.g., sections 101, 102, 105, 111, 112, 113, 114, 132, 181, 217, 305, 409)
Does the Flake-Gutierrez bill give away American sovereignty? One of the mandated reports requires DHS to identify progress made in developing and implementing an "immigration security strategy for North America that works toward the development of a common security perimeter" for the U.S., Canada and Mexico. (section 113) The bill sets up a U.S.-Mexico Border Enforcement Review Commission that will make recommendations regarding "the protection of human and civil rights of community residents and migrants along the international border", the "adequacy and effectiveness of human and civil rights training of enforcement personnel on . . . the border", the effect of border enforcement efforts on the environment and the qualify of life of border communities, and on whether state and local law enforcement should cooperate in immigration enforcement! (section 125)
Even when the bill requires that additional vehicle barriers be built along the border, we have to consult with Mexican officials to solicit the views of Mexican communities, lessen tensions, and foster greater understanding! (sections 103, 123)

The taxpayer must provide immigration-law violators who are being detained with "individual and group counseling", "daily access to indoor and outdoor recreational programs and activities", services that recognize their "special religious, cultural [and] spiritual" needs, and must fund new detention facilities with "meaningful . . . recreational activities", "private toilet and shower facilities" and clothes that are not "prison-style uniforms or jumpsuits". (section 175, 178)

Currently, state and local law enforcement are able to voluntarily assist DHS with the enforcement of all our immigration laws - criminal and civil. The Flake-Gutierrez bill only allows them to assist in the enforcement of criminal immigration laws. This severely limits the ability of local law enforcement to detain illegal immigrants until they can be picked up by DHS. (Section 215)

The bill claims to have tough criminal penalties to crack down on gang violence. However, the bill does not take the single most effective step to combat immigrant gang violence - it does not make make members of criminal street gangs deportable (as the House-passed Sensenbrenner-King bill did last Congress). (section 234)
Back to top.


The Flake-Gutierrez bill does not require most employers to verify the lawful status of existing employees, which creates a huge loophole in the employment eligibility verification system. Most currently employed illegal immigrants will be able to keep their current jobs forever. In addition, day labor centers will not have to verify the employment eligibility of workers they refer. (section 301)

The verification system will likely never be implemented. First, DHS can waive or delay the timeline for participation with respect to any employer or class of employers. (section 301) Second, DHS must waive or delay the timeline if GAO cannot make impossible certifications, and must waive or delay required participation in any future year in which GAO cannot make such certifications. What must GAO certify? It must certify that the system is meeting impossible-to-meet accuracy requirements, that the system is updated with new information at an impossibly-fast rate, that the system will not "cause reasonable employers to conclude that individuals of certain races or ethnicities are more likely to have difficulties when offered employment caused by the operation of the system", and that the system has "sufficient funding to meet all of the deadlines and requirements" of the bill. (section 301) The report also has to assess whether the system "has indirectly caused an increase in exploitation of unauthorized workers".
The bill opens up potentially unlimited liability for American taxpayers for "lost wages", including 180 day paid vacations for persons receiving "lost wages". (section 301)

The bill dramatically reduces civil penalties for employers who knowingly hire or continue to employ illegal immigrants or who fail to comply with the employment eligibility verification system from the levels the House approved just last Congress. In fact, in some instances the penalties are less than under even current law, and the bill grants DHS the authority to reduce penalties still further. (section 301)

The Flake-Gutierrez bill prohibits state and local governments from punishing employer who hire illegal immigrants, from requiring employers to use the employment eligibility verification system, or from requiring that the system be used to verify the legal status of renters, public benefits applicants and people undergoing background checks. (section 301)

Employers nationwide cannot favor U.S. citizens for jobs over certain foreign workers, including illegal immigrants granted Temporary Protected Status. (section 304)

Employers can avoid using the verification system simply by calling new hires "independent contractors". (section 301)


The Flake-Gutierrez bill claims that the new worker program and the amnesty for illegal immigrants will not be implemented until "tough" immigration enforcement certifications are made. However, the certifications are made by the Administration, not by Congress, making them meaningless. Second, the certifications themselves are little more than useless. The Secretary of DHS merely has to certify that he has provided Congress with a report on the status of border surveillance technology improvements, that he can issue secure documents to aliens, and that "critical infrastructure employers" are using the electronic employment verification system. There is no necessity that the Secretary certify that our borders are secure, or that they are even close to being secure. (section 5)