The Gang of Eight is touting the amendment authored by Senators Bob Corker (R-TN) and John Hoeven (R-ND) as the silver bullet to securing the border. Senate Majority Leader Harry Reid called it a “wonderful product” that would alleviate any concern about the border. However, the Corker-Hoeven amendment does little to improve the border security provisions in the bill and also includes provisions that would seriously undermine immigration enforcement. This summary addresses just some of the provisions contained the 1,200-page re-write of the bill, the Senators filed on Friday.

The Corker-Hoeven amendment still keeps the core amnesty-first, enforcement-later approach to the bill. The Department of Homeland Security (DHS) will still be able to grant amnesty (registered provisional immigrant (RPI) status) in six months once she submits a border security plan to Congress.

The Corker-Hoeven amendment does add minimum requirements to the border security plan. It provides that the border security plan “must require, at a minimum, the deployment of the following technologies for each Border Patrol sector along the Southern border…” and then lists all of the technologies and resources that the Secretary must include in her border security plan. But note the language of the amendment doesn’t actually require DHS to deploy the technologies and resources listed.

This is not by accident. After the amendment lists all the technologies and resources the plan must require, it gives the Secretary of Homeland Security discretion to: (1) reallocate the personnel, infrastructure and technology required by the plan, and (2) substitute the technology required in the plan with other technology she determines is equally effective, regardless of “the minimums” required by the plan. (p. 29-30) Thus, there is no real purpose to requiring the plan to include specific technologies or resources, when the amendment allows the Secretary to change them all anyway.

Having ostensibly designed a new border security plan, the Corker-Hoeven amendment – like the original bill – requires that certain conditions be met before DHS may grant green cards to RPI aliens. Specifically, the Corker-Hoeven amendment provides that DHS may not grant green cards to RPI aliens (excluding DREAMers and agricultural workers) until 6 months after DHS has submitted written certification that:

(1) The border security plan:
(a) has been “submitted” to Congress and includes the technology and resource requirements noted above; and
(b) is “deployed and operational.”
(2) The fencing plan has been “submitted to Congress and implemented,” and “as a result DHS will certify that there are no fewer than 700 miles of pedestrian fencing,” which includes replacement of all currently existing vehicle fencing with pedestrian fencing “where possible” and “may” include a second layer of fencing where DHS “deems necessary and appropriate.”
(3) DHS has “implemented” the mandatory verification system “for use by all employers”
(4) DHS “is using” the entry-exit system created by Sec. 3303 at all air and sea (but not land) ports of entry where CBP officers are currently deployed.
(5) No fewer than 38,405 Border Patrol agents are “deployed, stationed, and maintained” along the U.S.-Mexico border. (p.3-6)

However, this revised trigger still raises serious concerns. The fencing provision does not require double-layered fencing, and the amendment does not delete the language in the bill that expressly states DHS is not required to build any fencing whatsoever. (p.35-36) Even if the amendment contained a clear requirement to build border fencing, Senator Mary Landrieu, Chairman of the Senate Appropriations Committee, said on the floor only days ago that she would not spend any money on the “dumb fence.” She is likely to fight any attempt to appropriate money for the fence, making this language another empty promise.

In addition, the trigger still does not require biometric exit at all air, sea, and land ports of entry, as current law does. Finally, the amendment does not eliminate the exception to the trigger that allows DHS to grant green cards to RPI aliens if litigation prevents the implementation of the triggers and 10 years have passed.

The Corker-Hoeven amendment does substantially increase the number of Border Patrol agents (about 19,000), but DHS has eight years to accomplish this (the deadline is 2021) and paying for the agents requires raiding the Social Security Trust fund. Indeed, the bill sets aside $30 billion to pay for the Border Patrol agents. But when asked on the floor how the Gang of Eight found the money, Senator Hoeven said he was able to add the $30 billion in spending because the CBO projects that S.744 will bring in more revenue than it requires in expenditures. While that is true on it’s face, projected revenue under the CBO analysis is due to an increase in Social Security and Medicare taxes. This money must be set aside in the Trust Fund if Social Security and Medicare are to remain solvent. Thus, taking that tax revenue and using if for the fence means raiding the Social Security Trust Fund. (See FAIR’s analysis of the CBO score on S.744)

The Corker-Hoeven amendment also codifies the administration’s prosecutorial discretion policy with respect to visa over-stayers. (p.23) The amendment adds new language that provides DHS shall do one of the following for 90 percent of aliens who overstay their visas by at least 180 days:

  • Initiate removal proceedings;
  • Confirm that an immigration judge has allowed the alien to stay in the U.S. or the alien has a case pending that seeks such relief; or
  • Administratively close the case.

This language not only grants DHS express authority to simply close visa-overstay cases; it requires DHS to dispose of them in one of the above ways, the easiest of which is to simply put them in a file drawer. The administration is already closing removal cases deemed “low priority,” so there is little doubt how this provision will be applied.

The Corker-Hoeven amendment also re-tools the “Southern Border Security Commission,” but still does not give it any teeth. (p.8) The amendment requires the creation of the commission one year after enactment (instead of five), but provides that the Commission’s only responsibilities are to hold public hearings once a year each year for 10 years and provide DHS recommendations on achieving “effective control” of the border. Even then, the amendment provides that the Commission is only required to submit recommendations if DHS “cannot certify” in five years that it has achieved effective control in all border sectors for at least 1 year. Moreover, in the amendment, as in the original bill, the Commission’s recommendations remain non-binding. Thus, under the Corker-Hoeven amendment, the Commission is still not a check on executive action.

The Corker-Hoeven amendment maintains the bill’s original requirement that DHS add 3,500 more Customs and Border Protection (CBP) officials—officials who work at ports of entry. However, the amendment inserts language that provides that DHS’s goal in allocating the additional CBP officers to airports shall be to reduce wait times, NOT to enforce the law, catch illegal aliens, seize illegal contraband, or improve national security. (p.64)

The Corker-Hoeven amendment also makes it harder for Border Patrol agents to enforce U.S. immigration law along the Northern border by amending INA 287(a)(3). (p.108) That section authorizes Border Patrol to search vehicles and other forms of transportation within a reasonable distance of the border, which regulations define as 100 miles. (See 8 C.F.R. 287.1) However, the Corker-Hoeven amendment changes INA Section 287(a)(3) to limit such searches at the Northern border to 25 miles. This change is not surprising as the Obama Administration essentially abandoned conducting such searches along the Northern border in 2011. Border Patrol agents said they were baffled by the move, but the ACLU rejoiced. (Associated Press, Oct. 29, 2011)

The Corker-Hoeven amendment creates a rolling amnesty provision in the Merit-Based, Track Two program. The Track Two program allows aliens who are lawfully present with work authorization for 10 years to be eligible for a green card. While it is bad enough that the bill offers an unlimited number of green cards to guest workers (excluding W workers) who have been in the U.S. for 10 years, the Corker-Hoeven amendment allows illegal aliens to be eligible for green cards under the Track Two program. It inserts language into the bill that waives grounds of inadmissibility applicable to illegal aliens (the 3 and 10-year bars) when determining an alien’s eligibility for a green card under the Track Two program.

Sec. 2107(a) of the Corker-Hoeven amendment provides that RPI aliens (including DREAMers) and those who subsequently receive green cards shall not be subject to prosecution for felony-level Social Security crimes (found in 42 U.S.C. 408) if alleged to occur before filing an RPI application (with the exception of selling social security cards/numbers, real or fake). (Sec. 2107)

In addition, Sec. 2107, as added by Corker-Hoeven, ostensibly limits the extent to which aliens who get amnesty under S.744 may claim Social Security credit for work performed illegally. More specifically, the amendment bars the Social Security Administration from giving credit for work performed illegally to:

  • RPI aliens for work performed between 2004 and 2013 (but allows it for prior years), and
  • Guest workers who overstay their visas, unless they can establish that they were work authorized.

However, to establish work authorization, the amendment allows an alien to simply submit an “attestation” that he/she was work authorized in order to claim back credit.

Note, too, that this bar does not apply to aliens who received social security numbers before 2004. Also note that the language applies only to RPI aliens under S.744 plus certain visa over-stayers. It does not prohibit illegal aliens who are otherwise granted legal status, such as through cancellation of removal or future amnesties, from claiming social security credit for work performed illegally.

The Corker-Hoeven amendment requires U.S. Customs and Border Protection to deploy up to 1,000 distress beacons along the Southern and Northern borders where migrant deaths are occurring. It is unclear why this is needed if the provisions in this amendment are going to secure the border. It is also unclear why migrant deaths are occurring to such an extent that 1,000 distress beacons are needed if, as the President and Secretary Napolitano say, the border is already secure.

Finally, in a complete admission that flooding the U.S. labor market with hundreds of thousands of additional low-skilled workers hurts young workers, the Corker-Hoeven Amendment creates a “Youth Jobs Fund” for FY 2014-2015 using $1.5B from U.S. Treasury, to be repaid through fees. The goal of the Fund is to “provide summer and year-round employment opportunities to low-income youth.”