What the Immigration Reform Proposal Means for LGBT Undocumented Immigrants

An Analysis of S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013
The National Center for Transgender Equality applauds the Senate introduction of the immigration reform bill. We are optimistic that 2013 is the year we will address the needs of the more than 11 million undocumented, of whom more than 260,000 are LGBT and more than 20,000 are transgender. Recently, NCTE joined more than 30 transgender organizations in setting forth a set of principles for comprehensive immigration reform. Here is a quick analysis of how the initial bill compares to those principles. Principle: Create a definite, reasonable pathway to citizenship. The Senate base bill creates a pathway to citizenship for millions of undocumented people. That pathway is long and difficult it takes at least 13 years, includes numerous fees, an English language requirement, and bars many people with past criminal convictions. Those on the pathway would have to remain employed or in school in order to maintain this status, which could prove difficult for trans immigrants who face job discrimination and often rely on informal jobs where wage records may not be reported or available. Principle: Ensure a swift pathway for DREAMers. The Senate base bill includes strong DREAM Act provisions that would provide a five-year path to citizenship for undocumented individuals who came to the US as children or adolescents and have finished high school. This is a stronger version of DREAM, which previously only included those who had completed some college or served in the military. Principle: Strengthen the family immigration system by increasing the number of family visas and including binational LGBT families. The Senate base bill does not include the Uniting American Families Act (UAFA), which would provide visa eligibility for LGBT family members. The bill also limits the categories of family members that can benefit from family-based immigration, notably excluding siblings and adult married children of US citizens. At the same time, the bill would clear out the existing family visa backlog over the next several years, eliminate the numerical cap for family visas, and allow many whove been deported but have family in the US to return. Principle: Repeal the one-year filing deadline for asylum-seekers. The Senate base bill repeals the one-year deadline, and provides a process for those previously denied because of the deadline to be reconsidered. This is a critical change that will benefit many transgender immigrants. Principle: Reduce mandatory detention and reform detention conditions. The Senate base bill contains significant provisions that have the potential to reform detention conditions and expand the use of alternatives to detention for vulnerable populations. However, the bill does not alter the Congressional mandate for DHS to detain an arbitrary number of people, and does not include specific limits on the use of solitary confinement or other forms of harmful segregation.

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Principle: Reform the Secure Communities program and other similar state and local enforcement measures. The Senate base bill does not include specific changes to Secure Communities or other state and local enforcement measures, and in some respects the bill would expand those harmful programs. In fact, provisions in the bill expand the categories of people who can be fast-tracked to deportation for less serious crimes, as well as those convicted of no crime but found to be associated with a gang. The bill does contain provisions prohibiting racial profiling in immigration enforcement activity, and requiring further study and regulations on that issue. Principle: Any employment verification system must not violate personal privacy. The Senate base bill makes the E-Verify system mandatory nationwide, and will incorporate photos of virtually every U.S. worker (drawn from passports, drivers licenses, or immigrant work documents) into the system. The bill does not call for the collection or matching of personal information within E-Verify beyond the currently required name, date of birth, Social Security number, and citizenship status. The bill also calls for a modified, tamper-proof Social Security card, but does not require that the card include any new personal information. NCTE will continue to monitor these provisions, and if they are implemented it will be important to ensure that the use of personal data is not expanded further (for example to include matching gender markers or disclosing former names). In summary, the Senate base bill partially or fully includes many of the principles we need to see, but not all of them, and it has some harmful provisions. On balance, it would be a huge step forward for thousands of transgender immigrants and their families and for millions of others. But this is just the beginning of the process, and we know we can do better. LGBT and immigrant rights advocates will need to press for a number of key changes as the bill moves forward to committee, including ensuring a reasonable and inclusive path to citizenship, including all our families, rolling back the harsh detention and deportation system, and reducing proposed increases in wasteful spending in enforcement. NCTE will be keeping you up to date as this bill moves forward. Now is the time for inclusive reform.