Washington Examiner
April 25, 2013
By Byron York

Gang of Eight loopholes put many illegal immigrants on fast track to citizenship

Members of the Senate’s bipartisan Gang of Eight have stressed that under their new immigration plan, currently illegal immigrants will have to wait more than a decade before achieving citizenship. Newly-legalized immigrants will be given a provisional status and “will have to stay in that status until at least ten years elapse and [border security] triggers are met,” Florida Republican Sen. Marco Rubio told Fox News on April 14. “Then the only thing they get is a chance to apply for a green card via the legal immigration system.” The green card process would take additional years, meaning the road to full citizenship could take as long as 15, or even 18, years.

Unless it doesn’t. A little-noticed exception in the Gang of Eight bill provides a fast track for many — possibly very many — currently illegal immigrants. Under a special provision for immigrants who have labored at least part-time in agriculture, that fast track could mean permanent residency in the U.S., and then citizenship, in half the time Rubio said. And not just for the immigrants themselves — their spouses and children, too.

A second provision in the legislation creates another fast track for illegal immigrants who came to the United States before they were 16 — the so-called Dreamers. The concept suggests youth, but the bill has no age limit for such immigrants — or their spouses and children — and despite claims that they must go to college or serve in the military to be eligible, there is an exception to that requirement as well.

First the agricultural workers. The Gang of Eight bill creates something called a blue card, which would be granted to illegal immigrant farm workers who come forward and pass the various background checks the bill requires for all illegal immigrants. Instead of the 10-year wait Rubio described in media appearances, blue card holders could receive permanent legal status in just five years.

How does an illegal immigrant qualify for a blue card? If, after passing the background checks, he can prove that he has worked in agriculture for at least 575 hours — about 72 eight-hour days — sometime in the two years ending December 31, 2012, he can be granted a blue card. His spouse and children can be granted blue cards, too — it can all be done with one application.

There’s more. If an illegal immigrant is apprehended by authorities after the passage of the bill, and appears to qualify for blue card status, the law requires the Department of Homeland Security to give him a “reasonable opportunity” to apply for blue card status. He cannot be deported while his application is under review. Even if he is in removal proceedings, the bill says, the Secretary of Homeland Security is required to allow him to apply for blue card status, and immigration authorities are required to “terminate [removal] proceedings without prejudice.”

The bill’s supporters point out that the Gang of Eight would limit the period of time in which illegal immigrants can apply for a blue card. That’s true; the bill specifies that applications have to be filed in the year after the last of the rules enforcing the new immigration law have gone into effect. But the bill also gives the Secretary of Homeland Security the discretion to extend that period by another year and a half if she or he determines that “additional time is required” for the applications. The extension can also be granted for any other “good cause.”

The next step happens five years after the Gang of Eight bill is enacted. At that time, the legislation requires the Secretary of Homeland Security to change the blue card holder’s status to that of permanent resident if the immigrant has worked in agriculture at least 150 days in each of three of those five years since the bill became law. A work day is defined as 5.75 hours. Also, the immigrant can qualify for permanent residence with less than three years, of 150 work days each, if he can show that he was disabled, ill, or had to deal with the “special needs of a child” during that time period. He can also shorten the requirement if “severe weather conditions” prevented him for working for a long period of time, or if he was fired from his agricultural job — provided it was not for just cause — and then couldn’t find work.

So the road to permanent resident status that Rubio said would take a decade will take only five years for currently illegal immigrants who have done some work in agriculture. How many are there? Pro-reform congressional sources suggest the number could be 700,000 on the low end and 1.1 million on the high end. Congressional sources skeptical of reform say the number would be higher. No one seems to know with any certainty.

Then there is the other fast track, for the Dreamers. The Gang of Eight bill creates a special category for immigrants who came to the United States illegally before age 16. That applies equally to illegal immigrants who today are, say, 19 years old, or those who are 49 years old, or older. The bill gives permanent resident status to them, and to their spouses and children, after five years. To get that, they have to have completed high school or earned an equivalency degree. In addition, the bill says the immigrant must have “acquired a degree from an institution of higher education or has completed at least two years, in good standing for a bachelor’s degree or higher degree in the United States; or has served in the Uniformed Services for at least four years and, if discharged, received an honorable discharge.”

That requirement is often cited by Dream Act supporters to show the tough standards immigrants must meet. But the very next section of the bill outlines a “hardship exception” which says the immigrant may be awarded permanent legal status if he or she has not completed college, or not completed two years of college, or not served in the military. The immigrant who has done none of those things may still be fast tracked if he can “demonstrate compelling circumstances for the inability to satisfy the requirement.” The bill does not specify what those compelling circumstances might be; the discretion for such decisions lies with the Secretary of Homeland Security.
Like agricultural workers, it is not entirely clear how many currently illegal immigrants and family members would be involved in the Dream fast track, but the total number could be in the millions — a significant portion of the estimated 11 million immigrants in the country illegally today.

The bottom line is that in both cases, agricultural workers and Dreamers, the Gang of Eight creates significant exceptions to what Rubio claimed would be a long and arduous path to legal residency and then citizenship.

Under the proposed bill, some illegal immigrants will navigate the path to citizenship much more quickly than others.