In late June, the U.S. Senate, by a vote of 68-32, passed S. 744, comprehensive immigration legislation which includes a pathway to citizenship for many of the 11 million unauthorized immigrants living in this country. With Congress back in session and the immigration debate now shifting to the House, whether to offer legalization, to whom and on what terms is once again heating things up in Congress.
The 13-year (for most applicants) pathway to citizenship passed in the Senate was touted as tough but fair. However, little-known provisions in the Hoeven-Corker Amendment to the bill ensure that, like travelers in the desert, only the hardiest will survive. Hoeven-Corker, adopted the day before the final Senate vote, addressed many Republicans’ concerns with the bill’s border security provisions.
It made the transition from Registered Provisional Immigrant (“RPI”) to lawful permanent resident (“LPR”) contingent on implementation of a $46 billion border security strategy. In addition, as Don Kerwin of the Center for Migration Studies pointed out, the amendment denies most RPIs credit for Social Security earnings while in unauthorized status. One of S. 744’s goals was to establish “a coherent and just system for integrating those who seek to join American society.” If adopted, however, this measure will drive many immigrant workers into poverty by unjustly denying them credit for their earnings while in undocumented status.
About 94 percent of the workforce, including the undocumented, is required to pay Social Security payroll taxes. Most workers become “fully insured” and eligible for Social Security benefits, once credited with working 40 qualifying quarters (generally, ten years). The Social Security Protection Act of 2004 tightened the rules for noncitizens: if a noncitizen never obtains work authorization, then none of his or her earnings count towards achieving fully-insured status, and benefits will not be payable. If, however, an individual becomes work-authorized, then all of his or her social security-covered earnings count, including earnings from unauthorized work.
Hoeven-Corker would change this well-established rule. If passed into law, RPIs will not get credit for earnings between 2004 and 2014 unless they can show that they were assigned a social security number before 2004 or that they were authorized to work at the time. Sen. Orrin Hatch, R-Utah, who championed this provision, argued: “My amendment makes it clear no periods of unauthorized employment can be counted in an employee’s quarters of coverage and thus, they cannot be used to determine eligibility for social security.”
Sen. Patrick Leahy, D-Vt., Judiciary Committee chair, responded soon thereafter: “Last week, Senator Hatch filed several amendments to deny or delay protections for the millions of people who apply for registered provisional immigrant status. I will oppose all those amendments. They are not fair. . . .” Leahy commented that, “[w]hile some may want to look like they are being tougher on the undocumented population we all need to consider how further punitive measures may deter people from coming out of the shadows.”
Yet, ironically, Sen. Leahy introduced the Hoeven-Corker Amendment, which incorporates Hatch’s proposal, later that same week.
The Social Security Administration maintains an earnings suspense file with over $900 billion in wages that cannot be posted to individual work records because names and social security numbers do not match up. Critics of legalization argue that crediting unauthorized workers with these payments could bankrupt social security, while advocates point out that immigrants’ payroll taxes contribute to the system’s solvency.
Many unauthorized workers will never benefit from their contributions, but the newly legalized should be able to correct their records. To deny RPIs credit for their earnings would punish hardworking immigrants who were obeying the law in contributing to the system. It would also set a dangerous precedent to take away Social Security benefits from a group that has earned them.
Lauren Gilbert is a professor of law at St. Thomas University School of Law in Miami Gardens.