Immigration Reform and State Trends

By Ann Morse and Gilberto Soria Mendoza | Vol . 22, No. 4 / January 2014

NCSL NewsDid you know?

  • One in four children in America lives in an immigrant family, and 89 percent of these children are U.S. citizens.
  • Forty million immigrants live in the United States: 18 million are naturalized citizens, 11 million are legal noncitizens and 11 million are unauthorized.
  • One in six workers (about 25 million people) in the United States is foreignborn.

The U.S. Constitution, in Article I, grants primacy over immigration policy to the federal government. States, however, are responsible for policies related to immigrants after they enter the United States. State legislatures have been testing “immigration federalism,” partly to assuage public concerns about immigration and partly to prod congressional action.

States have long been partners in immigration: through refugee resettlement programs; in health, education and other immigrant integration policies; and through voluntary agreements with the federal government to address crime. The number of state immigration laws has steadily increased; since 2007, on average, 1,300 bills are introduced and 200 laws are passed each year.

In 2011, the U.S. Supreme Court upheld state authority in employment enforcement (U.S. Chamber v. Whiting) and, in 2012, curtailed state authority in law enforcement (Arizona v. United States). Also in 2012, the U.S. Department of Homeland Security implemented a new policy, Deferred Action for Childhood Arrivals, to provide young unauthorized immigrants a temporary respite from deportation and authorization to work.

These federal changes shifted the immigration landscape in the states, ending omnibus immigration enforcement bills and expanding eligibility for some benefits. Colorado, Minnesota, New Jersey and Oregon extended in-state tuition benefits to unauthorized immigrant students, bringing to 15 the number of states offering these benefits. Other states—including California, Colorado, Connecticut, Illinois, Maryland, Nevada, Oregon and Vermont—extended driver’s license eligibility to unauthorized residents, bringing to 11 the number of states to do so.

State Action

States implement programs required by federal law; provide services mandated by the courts; and initiate programs and policies to help integrate refugees, migrants and immigrants. Once considered an issue for the traditional immigrant gateways of California, Texas, Florida, New York and Illinois, immigration issues now affect all states. While Congress remains gridlocked on immigration reform, state legislatures have acted to address both immigration enforcement and immigrant integration. Immigration is now debated in every state capitol in a wide range of policy areas: public health and health care, employment verification, driver’s licenses, in-state tuition, English language acquisition, law enforcement, human trafficking and social services.

In 2013, lawmakers in 44 states and the District of Columbia enacted 176 laws and 253 resolutions related to immigration, for a total of 429, a 62 percent increase from 2012. Thirty-one states adopted 253 resolutions, up from 111 in 2012. Eleven resolutions ask Congress to pass comprehensive immigration reform, while others seek an immigrant entrepreneur visa, expedite visa applications for Afghan allies, reauthorize the Violence Against Women Act, fund border improvements and address refugee protections.

Federal Action

The last major overhaul of the nation’s immigration laws, covering both legal and illegal immigration, occurred in 1986. It included a $4 billion fund (State Legalization Impact Assistance Grants) that helped states pay for health, education and social services when the federal government barred federal benefits for the approximately 3 million unauthorized immigrants being granted legal status. The fund also paid for programs to help immigrants learn English and civics and integrate into American communities.

In 2006 and 2007, the U.S. Senate passed comprehensive immigration reform that included criteria for border and interior enforcement, legalization and new temporary worker visas. The bill also reflected bipartisan support for state impact aid to ameliorate costs to states of unfunded mandates, such as the federal law requiring emergency hospital care regardless of citizenship.

In June 2013, the U.S. Senate passed a comprehensive immigration bill that addresses border security, interior immigration enforcement, new temporary worker visas and a pathway to earned legalization for unauthorized immigrants. The Border Security, Economic Opportunity, and Immigration Modernization Act (S 744) passed the Senate with a bipartisan vote of 68 to 32. The legislation includes reauthorization of the State Criminal Alien Assistance Program (SCAAP) at $950 million per year, which reimburses state and local governments for the costs of incarcerating unauthorized immigrants. Unlike previous bills, S 744 does not include impact assistance grants to offset the anticipated costs to states of immigration reform, including education, English acquisition, health care and public health costs.

The Congressional Budget Office and the Joint Committee on Taxation found that S 744 would decrease the federal budget deficit by $158 billion over 10 years (2014-2023). The Congressional Budget Office estimates costs of the bill at $23 billion over 10 years, leading to a net savings of $135 billion. In contrast, the U.S. House of Representatives is approaching immigration reform by considering individual bills. Bills with committee action include border enforcement (HR 2278), agricultural workers (HR 1773), skills-based visas (HR 2131), E-Verify (HR 1772) and immigration law enforcement (HR 1417). HR 2278 would shift responsibility and costs of civil immigration enforcement to states and localities, while HR 1772 would mandate E-Verify and preempt state and local laws.poultry.

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