The most controversial component of the Senate's Secure Borders,
Economic Opportunity and immigration Reform Act of 2007 is Title
VI, euphemistically entitled "Nonimmigrants in the United States
Previously in Unlawful Status." It would create a new "Z" visa
exclusively for illegal aliens. This title would change the status
of those who are here illegally to legal, essentially granting
amnesty to those "previously in unlawful status." This seriously
flawed proposal would undermine the rule of law by granting massive
benefits to those who have willfully violated U.S. laws, while
denying those benefits to those who have played by the rules and
sometimes even to U.S. citizens.
The following are ten of the worst provisions-by no means an
exhaustive list-of Title VI of the bill:
A Massive amnesty: Title VI of the bill grants
amnesty to virtually all of the 12 million to 20 million illegal
aliens in the country today. This amnesty would dwarf the amnesty
that the United States granted-with disastrous consequences-in 1986
to 2.7 million illegal aliens. It is also a larger amnesty than
that proposed in last year's ill-fated Comprehensive immigration
Reform Act. Indeed, the Senate's bill imposes no cap on the total
number of individuals who could receive Z-visa status.
To initially qualify for a Z visa, an illegal alien need only
have a job (or be the parent, spouse, or child of someone with a
job) and provide two documents suggesting that he or she was in the
country before January 1, 2007, and has remained in the country
since then. A bank statement, pay stub, or similarly forgeable
record will do. Also acceptable under the legislation is a sworn
affidavit from a non-relative (see Section 601(i)(2)).
The price of a Z visa is $3,000 for individuals-only slightly
more than the going rate to hire a coyote to smuggle a person
across the border. A family of five could purchase visas for the
bargain price of $5,000-some $20,000 short of the net cost that
household is likely to impose on local, state, and federal
government each year, according to Heritage Foundation
Expect a mass influx unlike anything this country has ever seen
once the 12-month period for accepting Z visa applications begins.
These provisions are an open invitation for those intent on U.S.
residence to sneak in and present two fraudulent pieces of paper
indicating that they were here before the beginning of the
That is precisely what happened in the 1986 amnesty, during which
immigration and Naturalization Services discovered 398,000 cases of
fraud. Expect the number of fraudulent applications to be at least
four times larger this time, given the much larger applicant
- The Permanent "Temporary" Visa: Supporters of
the bill call the Z visa a "temporary" visa. However, they neglect
to mention that it can be renewed every four years until the visa
holder dies, according to Section 601(k)(2) of the legislation.
This would be the country's first permanent temporary
visa. On top of that, it is a "super-visa," allowing the holder to
work, attend college, or travel abroad and reenter. These
permissible uses are found in Section 602(m).
A law-abiding alien with a normal nonimmigrant visa would surely
desire this privileged status. Unfortunately for him, only
illegal aliens can qualify, according Section
And contrary to popular misconception, illegal aliens need not
return to their home countries to apply for the Z visa. That's only
necessary if and when an alien decides to adjust from Z visa status
to lawful permanent resident ("green card") status under Section
602(a)(1). And even then, it's not really the country of origin;
any consulate outside the United States can take applications at
its discretion or the direction of the Secretary of State.
- Hobbled Background Checks: The bill would make
it extremely difficult for the federal government to prevent
criminals and terrorists from obtaining legal status. Under Section
601(h)(1), the bill would allow the government only one
business day to conduct a background check to determine
whether an applicant is a criminal or terrorist. Unless the
government can find a reason not to grant it by the end of the next
business day after the alien applies, the alien receives a
probationary Z visa (good from the time of approval until six
months after the date Z visas begin to be approved, however long
that may be) that lets him roam throughout the country and seek
The problem is that there is no single, readily searchable
database of all of the dangerous people in the world. While the
federal government does have computer databases of known criminals
and terrorists, these databases are far from comprehensive. Much of
this kind of information exists in paper records that cannot be
searched within 24 hours. Other information is maintained by
The need for effective background checks is real. During the 1986
amnesty, the United States granted legal status to Mahmoud "The
Red" Abouhalima, who
fraudulently sought and obtained the amnesty intended for seasonal
agricultural workers (even though he was actually employed as a cab
driver in New York City). But his real work was in the field of
terrorism. He went on to become a ringleader in the 1993 terrorist
attacks against the World Trade Center. Using his new legal status
after the amnesty, he was able to travel abroad for terrorist
- amnesty for "Absconders": Title VI's amnesty
extends even to fugitives who have been ordered deported by an
immigration judge but chose to ignore their removal orders. More
than 636,000 absconders are now present in the country, having
defied the law twice: once when they broke U.S.
immigration laws and again when they ignored the orders of the
The Senate's bill allows the government to grant Z visas to
absconders. Though the bill appears to deny the visa to absconders
in Section 601(d)(1)(B), Section 601(d)(1)(I) allows U.S.
Citizenship and Immigration Services officials to give an absconder
the Z visa anyway if the absconder can demonstrate that departure
from the United States "would result in extreme hardship to the
alien or the alien's spouse, parent or child."
This is a massive loophole because so many things can be construed
to constitute "extreme hardship." This might include removing a
child from an American school and placing him in a school in an
impoverished country, or deporting a person with any chronic
illness. Attorneys representing aliens would also argue that if any
member of an absconder's family is a U.S. citizen, then the other
members must remain in the United States, because the
separation of family members would constitute extreme
This would also be a reward to those who have defied U.S.
immigration courts. Those who have successfully fled justice could
receive the most generous visa ever created, but those who complied
with the law and have waited years to enter legally would have to
wait longer still. (Indeed, the massive bureaucratic load caused by
processing Z visas would undoubtedly mean longer waits for
those who have played by the rules.) Further, those who have obeyed
the law and complied with deportation orders would not be eligible
for Z visas.
The effect of this provision may already be felt today. Why would
an illegal alien obey a deportation order while this bill is even
pending in Congress? If the alien ignores the deportation
order, he may be able to qualify for the amnesty; but if he obeys
the order, he has no possibility of gaining the amnesty.
- Reverse Justice: The bill would effectively
shut down the immigration court system. Under Section 601(h)(6), if
an alien in the removal process is "prima facie eligible" for the Z
visa, an immigration judge must close any proceedings against the
alien and offer the alien an opportunity to apply for amnesty.
- Enforcement of amnesty, Not Laws: The bill
would transform Immigrations and Customs Enforcement (ICE) from a
law enforcement agency into an amnesty distribution center. Under
Sections 601(h)(1, 5) if an ICE agent apprehends aliens who appear
to be eligible for the Z visa (in other words, just about any
illegal alien), the agent cannot detain them. Instead, ICE must
provide them a reasonable opportunity to apply for the Z visa.
Instead of initiating removal proceedings, ICE will be initiating
amnesty applications. This is the equivalent of turning the Drug
Enforcement Agency into a needle-distribution network.
- amnesty for Gang Members: Under Section
601(g)(2) of the bill, gang members would be eligible to receive
amnesty. This comes at a time when violent international gangs,
such as Mara Salvatrucha 13 (or "MS-13"), have brought mayhem to
U.S. cities. More than 30,000 illegal-alien gang members operate in
33 states, trafficking in drugs, arms, and people. Deporting illegal-alien gang members has been a top ICE
priority. The Senate bill would end that. To qualify for amnesty,
all a gang member would need to do is note his gang membership and
sign a "renunciation of gang affiliation."
- Tuition Subsidies for Illegal Aliens: The
Senate bill incorporates the Development, Relief and education for
Alien Minors Act (DREAM Act). The DREAM Act effectively repeals a
1996 federal law (8 U.S.C. § 1623) that prohibits any state
from offering in-state tuition rates to illegal aliens unless the
state also offers in-state tuition rates to all U.S. citizens. Ten
states are currently defying this federal law. Section 616 would
allow these and all other states to offer in-state tuition rates to
any illegal alien who obtains the Z visa and attends college.
The injustice of this provision is obvious. Illegal aliens would
receive a taxpayer subsidy worth tens of thousands of dollars and
would be treated better than U.S. citizens from out of state, who
must pay three to four times as much to attend college. In an era
of limited educational resources and rising tuitions, U.S.
citizens, not aliens openly violating federal law, should be first
in line to receive education subsidies.
Further, legal aliens who possess an appropriate F, J, or
M student visa would not receive this valuable benefit. Nor would
they be eligible for the federal student loans that illegal aliens
could obtain by this provision.
- Taxpayer-Funded Lawyers for Illegal Aliens:
The Senate's bill would force taxpayers to foot the bill for many
illegal aliens' lawyers. Under current law, illegal aliens are not
eligible for federally funded legal services. Section 622(m) of the
bill would allow millions of illegal aliens who work in agriculture
to receive free legal services. Every illegal alien working in the
agricultural sector would have access to an immigration attorney to
argue his case through the immigration courts and federal courts of
appeals-all at taxpayer expense. This provision alone could cost
hundreds of millions of dollars each year.
- amnesty Before Enforcement Triggers.
Proponents of the Senate approach have consistently claimed that it
would allow delayed amnesty only after certain law enforcement
goals are met. The text of the bill, however, tells a different
story. Section 1(a) allows probationary Z visas to be issued
immediately after enactment, and Section 601(f)(2) prohibits the
federal government from waiting more than 180 days after enactment
to begin issuing probationary Z visas.
These probationary Z visas could be valid for years, depending on
when the government begins issuing non-probationary Z visas,
according to Section 601(h)(4). Moreover, the "probationary"
designation means little. These visas are nearly as good as
non-probationary Z visas, giving the alien immediate lawful status,
protection from deportation, authorization to work, and the ability
to exit and reenter the country (with advance permission). These
privileges are listed in Section 601(h)(1).
What becomes unmistakably clear from the details of the Senate's
bill is that it is not a "compromise" in any meaningful sense.
Indeed, the sweeping amnesty provisions of Title VI cripple law
enforcement and undermine the rule of law.
Kris W. Kobach, D.Phil, J.D., professor of law at the
University of Missouri-Kansas City, served as counsel to the U.S.
Attorney General in 2001-2003 and was the attorney general's chief
adviser on immigration law. Matthew Spalding,
Ph.D., is the director of the B. Kenneth Simon Center for
American Studies at The Heritage Foundation.