Congress Might Finally Pass Immigration Reform in a Very Strange Way

Originally Published in Slate

Felipe De La Hoz – July 16, 2021

This could be the last chance for years.

Manchin walking in a dark hallway
Sen. Joe Manchin at the U.S. Capitol on Thursday. Alex Wong/Getty Images

After years of former President Donald Trump’s errant tweets sending immigration advocates and journalists into frenzies of speculation and planning, it was a tweet from Bloomberg Senate reporter Steven Dennis that set the immigration policy sphere alight this week: “MANCHIN SAYS SUPPORTS IMMIGRATION REFORM IN THE BUDGET DEAL.”

Those nine words, sent Wednesday afternoon in the heat of budget negotiations, heralded the real possibility that after years of stunted efforts, failed incrementalism, and endless disappointment for advocates and vulnerable immigrants alike, Congress could actually enact a widespread regularization scheme for the first time since the signing of the Immigration Reform and Control Act in 1986. The unlikely vehicle would be a budget reconciliation process for a colossal $3.5 trillion infrastructure plan. West Virginia Sen. Joe Manchin’s support here is crucial but not determinative, as the behemoth is up for debate and approval by the 50 members of the Senate’s Democratic caucus. Given the size and importance of the overall package, it does mean, however, that the immigration provisions are much less likely to be cut out as the process moves forward toward a final deal.

The details and exact scope of those measures is still hazy, but some of the early information points to something like an expanded version of the stalled American Dream and Promise Act, or H.R. 6, which is itself an evolution of the DREAM Act that was first introduced just over 20 years ago. While “immigration reform” is a useful umbrella term, it’s inexact in that the proposals under consideration wouldn’t fundamentally change anything about how the immigration system works, but rather allow more people to access it. Broadly, three distinct groups of people would now receive protections and a path to citizenship: people who were brought illegally to the U.S. as minors, often collectively known as Dreamers; people presently under temporary protected status, or TPS, and potentially the similar Deferred Enforced Departure, or DED, program; and a still-undefined category of “essential” and farmworkers.

Let’s take them one at a time. While many people think of Dreamers and recipients of the Obama-era Deferred Action for Childhood Arrivals, or DACA, program interchangeably, the former group is actually far larger. While DACA recipients are Dreamers, the relatively narrow eligibility criteria mean that there are many more Dreamers who don’t qualify for DACA. Applicants must, for example, have entered the country under the age of 16, have resided here since 2007, and have been continuously physically present since June 15, 2012. They also need to have been undocumented on that date, meaning that those who subsequently lost status are also not eligible.

If the reconciliation uses H.R. 6’s age and date cutoffs—having entered at under 18 years of age on or before Jan. 1, 2021, and being currently undocumented—that could lead not only DACA recipients but millions of additional Dreamers to citizenship. The Migration Policy Institute estimated that the over 3.5 million Dreamers, including the roughly 700,000 with DACA, would be eligible to obtain conditional and then full permanent residency under the act, provided they fulfilled the educational requirements.

Narrower language is possible, but it’s unlikely Senate Democrats would want to open up citizenship only to people currently eligible for DACA, particularly given how popular relief for Dreamers is across the board.

One outstanding question is whether the provisions will include so-called legal Dreamers, an often-overlooked group made up of young people at risk of aging out of dependent visas. Workers on H-1B visas, for instance, can sponsor dependent children. Many such workers then get stuck in years- or even decadeslong backlogs for permanent residency, and their children become ineligible for dependent status once they turn 21, meaning that they can have grown up in the United States with legal status and suddenly find themselves at risk of becoming undocumented. H.R. 6 included a path to citizenship for them as well, but it’s unclear if the reconciliation language will.

As for the second category, TPS, much like DACA, is meant to provide protections from deportation and work authorization to designated groups (also like DACA, the Trump administration set its sights on decimating it, only to be stopped by federal court orders). Unlike DACA, TPS wasn’t created by executive action but by statute, with Congress intending for the program to assist people who could not safely return to their countries of origin due to human-made or natural disasters. The idea was that, regardless of a person’s status at the time some emergency took place, the U.S. had the responsibility not to send them back to a generally unstable or hazardous situation; unlike a refugee claim, for example, a TPS designation acknowledges that a designated country is categorically unsafe for anyone, not just for specific applicants.

There are current TPS designations for Burma, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela, and Yemen, for reasons as varied as earthquakes and government repression. Some have been extended over decades, while Venezuela and Burma were both designated in March of this year and might not be ultimately included in the relief measures. As its name suggests, temporary protected status was never envisioned as a permanent solution, but circumstance has seen the designations extended over and over in some cases. Honduras’ TPS status was first issued in 1999, leading many people to live entire lives in a sort of legal purgatory. The reconciliation language is likely to allow people holding or eligible for TPS who’ve been in the country continuously for some amount of time before the bill’s enactment—three years if we’re going by H.R. 6—to apply for residency. This could account for another 400,000 or so people receiving a path to citizenship, if the eligibility is maximized.

The fuzziest of the categories is probably that of essential employee. “Farmworker” is relatively straightforward—the 1986 amnesty that President Ronald Reagan signed defined it as someone who performed at least 90 man-days of seasonal agricultural labor in the 12-month period preceding a cutoff date in May of that year—but there are bound to be disagreements over who performed “essential services” in the context of the COVID-19 pandemic. Essential workers aren’t part of H.R. 6, but they are included in the broader U.S. Citizenship Act, the ambitious but doomed immigration bill that President Joe Biden unveiled on his first day in office. That document offloads the definition to the Department of Homeland Security’s March 2020 “Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID–19 Response,” which lists workers in fields as varied as financial services, chemical production, and food preparation and delivery. It’s hard to find reliable numbers on how many people this would include, but a recent UCLA study estimated that there were around 6 million unauthorized essential workers.

A wild card here is how exactly the immigration measures will deal with the issue of criminal contact. Every reform proposal of the last two decades has included significant carve-outs to block a pathway to citizenship for immigrants convicted or even suspected of certain crimes, an approach that has recently become a point of friction between more moderate Democrats and their progressive counterparts. The latter group argues that the link is just bringing the capricious and racist outcomes of a flawed criminal justice system into a new arena where they might have massive consequences. The issue flared up with the House’s passage of H.R. 6 in March, given that the legislation specifically excluded people who had ever been convicted of a felony or any three misdemeanors. It also instituted a safety check that examined, among other things, whether the applicant was included in a gang database, a notoriously shoddy and unreviewable system.

The extent to which the reconciliation language includes similar exclusions, and relatively minor tweaks like the cutoff dates for farmworker and Dreamer eligibility, will make huge differences in the numbers of people who will have the opportunity to regularize their status and ensure a life of full civic participation in the United States. The immigration provisions as a whole are also at some risk from the Senate parliamentarian, Elizabeth MacDonough, who will weigh in on whether various pieces of the budget bill can appropriately be achieved through reconciliation. Senate Democrats aren’t necessarily obligated to abide by her decisions, but they probably will, as they did when she killed the $15 minimum wage earlier this year. What’s clear is that the next few weeks are shaping up to be the most important for the debate over immigration policy in years. If past is prologue, the Democrats are not going to get another bite at this apple for a very long time.




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