The immigration bill being debated in the Senate is the product of Harry Reid's (D-NV) office, which has been the key power broker of participation-hence the role of Senator Ted Kennedy (D-MA) and others close to Reid's rise to leadership. More recently, Senator Arlen Specter (R-PA) has joined in pushing for bipartisan passage.

It is not the "President's Bill", although he has certainly endorsed it. It is a product of Congress. Specifically, it reflects the particular philosophical and economic values of the Senate coalition behind the bill and of those who have amended it (and continue to amend it).

The key balancing fulcrum is between Kennedy-who has long favored amnesty for illegal immigrants-and Senator Jon Kyl (R-AZ) who, until recently, had opposed amnesty.

The bill's formal name is Senate Bill 1639, "The Secure Borders, Economic Opportunity and Immigration Reform Act of 2007." Since the bipartisan group of Senators represents the full political spectrum, it's not surprising that the title incorporates terms that capture the goals of all. Mainstream America, and especially politically conservative voters, are hoping that the result will improve border security, so that is the lead term. Secure borders will certainly be necessary, as the economic opportunity provided through the amnesty and generous guest worker provisions will undoubtedly motivate many more people to attempt to enter the United States illegally and await their opportunity to gain amnesty.

The bill's declared purpose is "To provide for comprehensive immigration reform and for other purposes", and some of the other purposes are very far from immigration reform. An entire title VIII is added to address those purposes, most of which have to do with a European-American Commission to examine the enumerated misdeeds of the United States during World War II toward Italians and Germans who were U.S. residents subject to internment, and Jews fleeing Hitler who were denied entry as refugees-by no means inappropriate.

Effective Triggers as a Prelude to Amnesty
Title I requires the Secretary of Homeland Security to certify that a set of benchmarks have been met before the guest worker programs (Title IV) and the expansive amnesty programs (Title VI) for people already illegally resident in the United States can be activated. There is a huge exception, however, as "temporary amnesty", also known as "probationary Z status", is effective upon enactment (when the President signs the bill) for Z workers, also known as illegal immigrants. Title I also includes authorities and resources to augment border security, much of which could be alternatively authorized under presidential directives had the President chosen to more rigorously strengthen border security prior to this bill.

The date triggers are interesting to those who champion amnesty, but they stand the risk of becoming irrelevant once the process of issuing probationary Z status to the millions of illegal aliens begins. That process will have its own momentum, and once there are four or five million "probationary Z workers" signed up with Homeland Security's (DHS) immigration offices, immense political pressure will be generated. There are still "dormant" enforcement laws on the books from the 1986 amnesty, especially provisions to use the power of the Internal Revenue Service to identify, investigate and penalize employers of illegal workers. The IRS employer sanction requirements were to be implemented by a 1989 deadline, and 18 years later, the IRS is still working on a final draft of the regulations. So much for the executive branch enforcing the law.

Date Triggers
The Secure Borders part of the bill is front and center in Title I. The "key" trigger requirement to be met is Provision (1): "OPERATIONAL CONTROL OF THE INTERNATIONAL BORDER WITH MEXICO.-The Secretary of Homeland Security has established and demonstrated operational control of 100 percent of the international land border between the United States and Mexico, including the ability to monitor such border through available methods and technology."

This provision deserves a hard look, because with a term as intangible as "operational control", victory can be declared at any time without metrics to substantiate that claim. The Border Security precondition for amnesty is further delineated, as Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the programs in Title VI begin. However, a very large exception is made for the admission of aliens with foreign-student status wishing to change visa status to gain U.S. employment and probationary Z status for Z workers is effective with enactment.

The president has been pitching support for the senate bill, and pundits note that, under the bill, people caught crossing the border illegally will be permanently barred from returning to the United States on a work or tourist visa. Those known to have taken part in illegal gang activity can be denied admission and aliens who are dangerous criminals can be detained until another country accepts them.¹ Guess what? The existing Immigration and Naturalization Act (INA), together with other federal criminal statutes already provides equivalent statutes! However, the approach taken by the bill is intended to ensure that a degree of stronger border security takes place before the amnesty and expanded guest worker provisions pick up speed.

More specifically, Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the programs in Title VI begin, with the exception of allowing foreign students to convert student visas to green cards,² and probationary Z status for Z workers. "Z worker" is how the bill defines illegal immigrants who elect to fill out the paperwork for conversion to legal presence status, or amnesty. Title I also includes authorities and resources to augment border security.

That there are a lot of "loopholes" is well known. This article will only highlight a couple of these. For those readers who doubt the Senate's resolve, here's a link to a list compiled by Senator Jeff Sessions (R-AL), who opposes the bill.

Effective Date Triggers
Title I requires the secretary to certify that certain benchmarks have been met before the guest worker programs in Title IV and the amnesty programs in Title VI begin. To pull the trigger, the secretary of Homeland Security must certify to the president and Congress that the following border security and other measures are funded, in place, and in operation:

The act states that it "is the sense of Congress that the border security and other measures described in such subsection can be completed within 18 months of enactment."

One could get a sense of wonder, however, by looking at the fine print. The fence provision, so prominently placed, is actually a watering down of the Secure Fence Act and REAL ID Act provisions passed in the 109^th Congress. Section 103 of Subtitle A actually dramatically mitigates the secretary's authority to construct fencing any place it is opposed along the border. It also suggests that the a future secretary of Homeland Security could stop the entire process, presumably after the "trigger" requirement is concluded, or perhaps after the fence activities are quietly dropped. The bill actually gives the administration-perhaps the next administration-an opt-out clause:

Notwithstanding subparagraph (A), nothing in this paragraph shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location.

In short, if the secretary wants to allow "border smuggling-business as usual" to please a particular border constituency, they can do that at will. Section 103 lets the air out of the tougher border security laws passed in 2005 and 2006.

Immigration experts agree about very little amongst themselves, but there is a general agreement that illegal immigration can't be solved at the border, but instead requires rigorous internal enforcement against employers and the apprehension of illegal aliens resident in the interior. The senate bill employs a reverse strategy. It adds a minimum of 6,000 full-time active duty border patrol officers over prior authorizations in the next five years, but it adds only 1,000 positions to investigate alien smuggling and that is stretched over five years. And it only increases by 200 over previous authorizations the number of Immigration and Customs Enforcement Investigators-which the agency charged with internal enforcement. For purposes of comparison, Germany employs over 6,000 internal immigration enforcement officers, which is why it has far fewer problems will illegal immigration than does the United States, despite its high standard of living.

At least the senate bill does recognize the growing problem with illegal alien criminals. It adds fifty deputy United States marshals a year for the next five years to haul illegal alien criminals and other deportees back to their country of origin.

Looks like a tough list of "triggers", but don't be surprised if certification occurs even before 18 months have transpired. A lot of what is in Title I is actually weakening earlier Congressional mandates. My least favorite of these is Sec. 130. US-VISIT System, which requires the secretary of DHS to submit to Congress no later than six months after enactment a timeline for equipping all land border ports of entry with the US-VISIT system, deploying at all land border ports of entry the exit component of the US-VISIT system and making all immigration screening systems interoperable. In other words, instead of requiring DHS to implement exit controls on U.S borders-a requirement of the 2002 Border Security Act and a 9/11 Commission recommendation-DHS is back to formulating a plan instead of moving ahead.

Title II. Interior Enforcement
This section directs DHS, the Department of Justice (DOJ), and the U.S. Attorneys Office (AO) to add additional immigration lawyers and judges to assist in the litigation and adjudication of immigration cases but doesn't provide any specific authorization. Most of what is in this title is "subject to the availability of appropriations." Since appropriations are currently insufficient to fund the required attorneys in most branches of the federal government this directive is little more than wishful thinking. However, the senate did correctly identify where there are not enough immigration attorneys to handle amnesty and adjustments for the estimated 12 million illegal immigrants, namely in the office of General Counsel; USCIS adjudicators; attorneys in the Office of Immigration Litigation; attorneys in the AO; immigration judges and supporting personnel; Bureau of Indian Affairs (yes, even on the reservations there are apparently jobs that Americans won't do!) staff attorneys and support staff; and federal public defenders.

It is novel, by contrast, that appropriations are authorized for continued operation and expansion of the legal orientation program on immigration court procedures. In other words, the federal government will fund more training for private sector immigration attorneys.

A couple of desirable improvements in the law are contained in Title II:

Title II contains a very important amendment to the federal criminal code by expanding penalties pertaining to passport, visa and document-related fraud. This has very important implications for preventing terrorists and criminals from entering the country "through the front door" or protecting themselves from detection by obtaining fake documents. In addition to better defining what constitutes immigration document and visa fraud, it provides stiff penalties for document traffickers and counterfeiters. It is document fraud that lies behind the ease with which illegal immigrants can remain in the country, and these provisions in Title II are new and important reforms.

Title II also reforms the practice of allowing illegal immigrants to depart voluntarily, by tightening up the rules for voluntary departure agreements. It provides that the failure of the alien to comply with a voluntary departure agreement subject to arrest, civil penalties and an alternate order of removal, along with an automatic $3,000 fine. It also makes aliens previously permitted to depart voluntarily ineligible for a second or subsequent voluntary departure agreement.

Title III. Employer Enforcement
Title III's most extensive, complex and controversial provisions establish a national system of electronic employment verification. It provides for a worksite enforcement system that relies on electronic employment verification and a reduced list of documents that may be presented to employers to prove identity and work eligibility. It also increases penalties significantly over current law for unlawful hiring, employment and recordkeeping violations. A new, and better defined standard is set for unlawful hiring, recruiting or referring for a fee or for unlawfully continuing employment is "knowing or with reckless disregard." However, the title also provides a defense for employers who establish that they have complied in good faith with all document and electronic verification requirements applicable to them at the time.

This new system would require employers in national security-related industries, industries involving critical infrastructure and federal contractors to electronically verify employees, including new hires and current employees, within six months of the bill's enactment. All employers would be required to electronically verify new hires within 18 months of enactment, or on the date on which the secretary certifies that the system is operational. Once the system is implemented, all employers would be required to verify all current employees within three years of enactment. This is a very aggressive timetable for employer compliance and for DHS to keep pace with the demand on the new system. Since the "new system" is a beefed up version of the existing SAVE system, presumably DHS is confident they can meet employer demand without a backlog that would undermine the entire premise.

The bill also addresses the resistance of the Commissioner of Social Security to share information that allows ICE to pursue enforcement actions. Going forward, the Social Security Administration will have to share with DHS: (1) names and addresses of people who submitted information that did not match that contained in the Social Security database; (2) whenever two or more people use the same social security number for tax purposes; (3) names of persons under 14 or who are working or whose date of death occurred in a previous year (because illegal aliens often use the social security numbers of infants and the deceased); (4) information regarding a person for whom wages are reported by more than one employer; or (5) information regarding a person not authorized to work in the U.S. This last requirement is of particular interest because earlier immigration reforms gave the Social Security Administration access to DHS immigration data base files-so SSA could takes steps to quickly match up the records of people known to have deportation orders with social security tax or benefits records.

The bill also gives the Commissioner of Social Security a firm deadline of not later than 180 days after date of enactment to administer and issue fraud-resistant, tamper-resistant Social Security cards. Within 180 days of enactment, the commissioner is to report on the utility, costs, and feasibility of including a photograph and other biometric information on the Social Security card. In other words, undertake the long overdue task of providing others with some level of proof that the person presenting the social security card is actually the person to whom it was initially issued. The bill requires Social Security Administration to review the SSA databases and information technology to identify any deficiencies and discrepancies related to name, birth date, citizenship status or death records of the social security accounts likely to affect immigration enforcement or the proper functioning of the EEVS. In other words, SSA must clean up its databases. For people who have been identity theft victims of illegal aliens for employments purposes, the bill requires SSA to establish a procedure by which an individual may freeze his/her social security number so that it may not be used for any confirmation under EEVS until it is reactivated by that individual.

The bill increases penalties on employers who fail to file correct information returns and for employers that have filed "non-match" social security numbers for ten or more employees for three years in a row.

Finally, and most importantly, the bill authorizes appropriations as necessary to increase to a level not less than 4,500 DHS personnel dedicated to monitoring and enforcing compliance with worksite enforcement laws, including compliance with the EEVS. It appears that these new personnel will be in support roles at ICE or in Citizenship and Immigration Services, and will be occupied primarily with operating the EEVS and helping employers to comply, versus investigative or actually enforcement actions. The bill describes in considerable detail the compliance and monitoring activities that these personnel must perform. Similarly the bill authorizes appropriations to acquire, install and maintain the EEVS and the connectivity needed to support the EEVS and related immigration enforcement actions. The bill also authorizes appropriations to the SSA to clean up the SSA databases and information technology to share data with DHS.

Brian Zimmer is an adjunct senior fellow at The Nixon Center.

¹ MSNBC report, September 23, 2007.

² Admission of aliens under 101(a)(15)(H)(ii), provisions of subtitle C of Title IV.