WASHINGTON — Huber David Hernandez got a surprising phone call from a friend a few months ago. Congress is working on immigration reform, she said, and it would benefit both of us.
"It was great news," said Hernandez, who is from Colombia and arrived in Orlando in May 2012 on a three-month travel visa and never left, eager "to secure a better future, to achieve what they call the American Dream."
Then his friend called back. "She told me she had heard that only those who entered through 2011 would be covered. It's incredible that just because of one year we're not covered."
A wide-ranging immigration bill being debated in the Senate provides a pathway to citizenship for some 11 million undocumented immigrants but excludes people who arrived in the United States illegally after Dec. 31, 2011.
No one is sure how many people would be affected, but it could surpass 300,000. Other exclusions, including those barring the poor from a path to citizenship, would push the number even higher.
The issue is a window into the complexities facing authors of the most ambitious overhaul of immigration law since 1986, the compromises that led to an 867-page bill and the battles under way to shape its many layers.
Sympathy for late arrivals such as Hernandez, 45, is scarce on Capitol Hill, but immigrant advocates and some lawmakers are working to move the cutoff date, saying it undermines the objective of wiping the slate clean by legalizing millions of undocumented residents and fixing a broken immigration system.
Democrats on the Senate Judiciary Committee plan to offer amendments this week that would make the cutoff either when the bill was introduced, April 17, or when (if, really) it is enacted.
The 1986 bill had a cutoff of 1982, but the number of undocumented residents only swelled over the years, the result of many factors including lax border security. The 1986 failures are repeatedly invoked by lawmakers today in demanding increased border efforts. But backers of a more lenient date are using the past as well.
"If the idea is to get the issue off the table, they need to bring the maximum number of people out of the shadows," said Kevin Appleby, director of migration policy for the U.S. Conference of Catholic Bishops. "You're spending all this political capital and you might as well solve the problem. Otherwise, you're planting the seeds for another undocumented population several years down the line."
Archbishop Thomas Wenski of Miami is seeking a meeting this week in Washington with Sen. Marco Rubio, one of the bill's authors, to press for a more generous date. Wenski argues that the current proposal will either drive people further into the dark or encourage fraud. The bill requires undocumented residents to prove, through utility bills, bank statements, paychecks and other documents, that they were in the United States before the cutoff.
"We're trying to increase the pressure," Appleby said, adding that Rubio's future political ambitions could be hurt by reform that does not cure the problem for good, as the senator says is essential to gaining the public trust.
(One of Rubio's priorities is a better visa tracking system to crack down on people like Hernandez, who knew he wouldn't leave after his three-month travel permit expired. Hernandez said he thought it would be too difficult to come through legal channels, often expensive and requiring a wait of a decade or longer.)
Rubio is unlikely to budge on the cutoff. The Republican from Miami, already under fire from some conservatives for his role in the deal, pushed for a stricter 2008 cutoff date during negotiations with seven other Senate negotiators. Democrats wanted Jan. 1, 2013. Changing the date now would only add to myriad other issues threatening to throw off the momentum.
"We had a balance in this bill," said Sen. Charles Schumer of New York, the lead Democratic negotiator. "Some wanted it to go much further back and others wanted it to be immediate. So I think we're going to stick with that date."
Asked what would happen to the people left out, Schumer implied they would return home, due to a "rough time" finding work because of new employee verification measures under the bill.
Mass self-deportation, however, seems as unlikely as hopes of eliminating the under-the-table economy that many immigrants now work in.
"If I don't qualify, I plan to stay here just the same," said Hernandez, who works odd jobs around Orlando that pay $6 or $7 an hour. "I wonder how they will deal with us. We are immigrants just like the ones that came here before, those who came four or five years ago. I came here to see if I could do better, and you can achieve more here."
Octavio Ulloa, who traveled 15 days from Honduras across the Mexico border in March and eventually ended up in the Washington, D.C., suburbs, said he is not sure what he will do. "I hope they will show humanity and they understand that I'm not just asking this for me but for all of the people that are already on this side."
The 20-year-old said he left Honduras after a man threatened the safety of his wife and daughter. His father arrived 10 years ago, his mother five years later. Neither are legal residents. "If it hadn't been for the threats, I would have not come here," Ulloa said in Spanish. "I apologize to the law and also to the government, so they have mercy on us. I ask them to give us an opportunity."
Ulloa, who is considering seeking asylum, would just barely make the cut under an amendment by Sen. Richard Blumenthal, D-Conn., which sets the date in April, when the bill was introduced.
In an interview Blumenthal called Dec. 31, 2011, "completely arbitrary," and cast his as fairer. "It's based on a rational test, that's the date the provisions were announced and people were put on notice."
Sen. Dianne Feinstein, D-Calif., wants to make the date effective when the bill is signed into law. On the other hand, Sen. Mike Lee, R-Utah, would push it back to 2009.
"The date we have is a pretty good date," said Sen. Jeff Flake, R-Ariz., part of the Gang of Eight. "The reason we are legalizing the people here is, we recognize they have ties to the community, they've been here a while. That can't be said for somebody who arrived just this year."
But critics of that approach say it will maintain a class of people who remain hidden, directly conflicting with underlying justification for legalizing undocumented residents. "It's going to leave hundreds of thousands of people in limbo," said Jaime Barron, an immigration lawyer in Dallas. "It's highly unlikely they will leave. When you're hungry, you'll always find a way to find work," he added, noting that many face bleak job prospects at home, or kidnapping and drug violence.
Even without the cutoff, many people will not be eligible for "Registered Provisional Immigrant" status. People with serious criminal records are excluded and those who cannot demonstrate they have incomes 125 percent above the poverty line or hold a steady job would lose the legal classification. A recent analysis by the Social Security Administration put the number of undocumented residents in the United States at 11.5 million, of whom 8 million will seek and be granted legal status.
Barron said word of the cutoff date has spread through the immigrant community but he cautions people who would not qualify about sticking around. "Our advice is not to risk staying illegally because you will probably not be able to come back again," if caught and deported.
Overall, Barron said the cutoff date, while not perfect, is a "healthy compromise."
Agudel Serrano, who arrived in the United States illegally last year from El Salvador, said he first heard about immigration reform on the radio in Texas.
"It's a shame," he said when told he would not qualify under the current Senate proposal. "There are too many of us who have come over here after that date and all of us desire to have a permit or be legal. I simply came to look for a better future."
Faced with tougher prospects of making that future, Serrano, 39, said he would probably go home. "It's scary to walk without documents … fearing immigration or the police, not have a license. You can't really get anything, so why frustrate yourself like that?"
Alex Leary can be reached at [email protected] Follow him on Twitter @learyreports.