On his first day as president on Wednesday, Joe Biden will send an ambitious immigration reform bill to Congress that would create an eight-year path to citizenship for undocumented immigrants, bolster border security with new screening technologies, and deliver aid to Central America.
The bill, known as the US Citizenship Act of 2021 and outlined in a four-page summary shared with reporters, would represent the most sweeping immigration reform package passed since 1986.
It marks both a symbolic and substantive break with the restrictionist immigration policies that have defined the last four years under Donald Trump, setting the tone for what Biden promises will be a more welcoming era for immigrants in the US. At its core is a long-awaited proposal to legalize the more than 10.5 million undocumented immigrants currently living in the US, many of whom have lived in fear of being deported and uprooted from their families for years.
It’s an early signal that the Biden administration is prioritizing immigration, despite an otherwise full agenda in Congress, including confirming the president’s Cabinet officials, conducting Trump’s impeachment trial in the Senate, and passing additional Covid-19 relief. That draws a contrast with the Obama White House, which faced criticism for squandering its best opportunity to pass comprehensive immigration reform in 2013.
“We made a mistake,” Biden said when asked about why voters should entrust him with passing comprehensive immigration reform during an October presidential debate. “It took too long to get it right.”
The bill has earned praise from immigrant rights activists who see reform, which lawmakers have punted for more than a decade, as an imperative. But it’s not clear whether it could pass in the Senate, where Democrats have a narrow majority and it would need at least 60 votes in order to survive the filibuster. Some Republicans, including Sen. Josh Hawley of Missouri, have already expressed concern that the bill doesn’t include sufficient border security provisions.
But even if the bill doesn’t survive in its entirety, Democrats and immigrant advocates are working to ensure that at least parts of it go on to become law in other forms, including through a budget reconciliation bill, which could pass by a simple majority, and in future pandemic relief packages.
“We have a window of opportunity to secure significant reforms on immigration,” Lorella Praeli, president of Community Change Action, said in a press call. “After several decades of trying to move a comprehensive bill through the finish line, we are prepared to hold everyone accountable to use every tool at their disposal to legalize as many people as possible.”
The bill would implement reforms to legal immigration
The centerpiece of the bill is a provision that would allow undocumented immigrants to obtain legal status and eventually, citizenship.
To qualify, they would have to have been present in the US on or before January 1, 2021, unless granted a waiver on humanitarian grounds.
Initially, they would be able to obtain a work permit and travel abroad with the assurance that they would be permitted to reenter. After five years, they would be able to apply for a green card if they pass background checks and pay taxes. Immigrants covered by the Deferred Action for Childhood Arrivals program and Temporary Protected Status, as well as farmworkers would, however, be able to apply for green cards immediately.
After holding their green card for three years and passing additional background tests, they could apply for US citizenship.
The impact of such legislation cannot be overestimated: It could potentially bring millions of people out of the shadows.
“For all of them, the broken immigration system stands in their way of being recognized for who they already are: important members of our communities,” Maria Praeli, the government relations manager of the immigrant advocacy group FWD.us, said in a press call.
Among other reforms to the legal immigration system, the bill notably includes provisions to remove barriers to family-based immigration, including lengthy visa backlogs and employment-based green cards, which have been relatively inaccessible for workers in lower-wage industries. It would also strengthen protections for immigrant workers, ensuring that victims of serious labor violations receive visas, protecting those who face workplace retaliation from deportation, and setting up a commission to make improvements to the employment verification process.
The bill seeks to address the underlying causes of migration
The bill aims to bring to fruition Biden’s vision for a regional approach to migration, addressing the factors driving Central American migrants to flee their home countries.
As vice president, Biden developed a $750 million program in tandem with the governments of El Salvador, Guatemala, and Honduras — Central America’s North Triangle countries — aimed at improving economic development and curbing violence and corruption in the region, but the Trump administration suddenly halted that effort in March 2019.
The bill builds on that concept, allocating $4 billion over the course of four years to address those push factors and incentivize Northern Triangle governments to improve living conditions.
It would also set up new processing centers throughout the region in order to register qualifying migrants as refugees and resettle them in the US. And it would reunify separated families by reinstituting the Central American Minors program, under which children can join their relatives in the US, and creating a new parole program for those whose family members in the US sponsored them for a visa.
The bill’s summary suggests that it would enable people to legally immigrate to “partner countries,” though it’s unclear what that entails or whether it would be substantially different from policies pursued by Trump. The Trump administration had brokered agreements with the Northern Triangle countries that allowed the US to return asylum seekers to those countries to seek protections — agreements that Biden has vowed to terminate.
The bill could boost funding for immigration enforcement with a focus on technology
The bill would allow for an unspecified increase in funding for immigration enforcement. An incoming White House official said that Alejandro Mayorkas, Biden’s nominee for Department of Homeland Security secretary, would have to assess the precise dollar amount required. But given that many immigrant advocates have spent the last four years calling for lawmakers to abolish or at least defund the immigration enforcement agencies — whose budgets ballooned under Trump — that could prove controversial.
Those funds would go toward improving screening technology, officer training, infrastructure at ports of entry, and border security between ports of entry, favoring alternatives to a border wall.
“For the past four years, what we’ve seen is only a focus on the wall,” the official said. “What we need is a more comprehensive approach. This is like a reset to focus on smart enforcement that’s also fair and humane.”
The bill would also establish mechanisms to address misconduct among DHS’s ranks, increasing staff at the DHS Office of Professional Responsibility, which investigates such cases, and requiring the agency to create a use-of-force policy. It would be a critical first step in reforming the agency, which became politicized under Trump, at times acting as the mouthpiece of his immigration and “law and order” agenda.
It would also enhance penalties for criminal gangs and drug traffickers.
Biden could try to fold immigration reforms into other high-priority bills
Though Biden has identified immigration as a key priority during the early days of his presidency, he and his team have been seeking to temper high expectations for how quickly the incoming administration will be able to transition away from Trump’s restrictionist immigration policies and implement reforms.
Biden has told advocates that impeachment proceedings in the Senate could prevent him from getting immigration legislation through Congress within his first 100 days, Politico reported. And Mayorkas told senators during his confirmation hearing on Tuesday that reversing Trump’s legacy on the border “cannot be accomplished with the flick of a switch.”
That has left some policy experts skeptical that Biden’s proposal will pass Congress in its current form.
“I would be surprised if anything big could get through,” Sarah Pierce, a policy analyst at the Migration Policy Institute, said. “The bandwidth couldn’t be more limited. The pandemic is going to be that the big focus, and it’s going to be hard to draw people’s attention away from that. So I think it’s probably going to be something more piecemeal.”
Immigrant advocates have consequently been entertaining the possibility of instead trying to incorporate a path to citizenship for the country’s 5 million undocumented essential workers in Biden’s proposed $1.9 trillion Covid-19 relief bill, which he has urged Congress to pass quickly.
There’s already a model for what that legislation could look like: Rep. Joaquin Castro (D-TX) is working with labor and immigrant rights groups to draft a standalone bill, backed by incoming California Sen. Alex Padilla, that would allow essential workers to immediately apply for a green card and, after five years, citizenship.
Democrats had success incorporating immigration provisions in the latest $900 billion Covid-19 relief package, which was passed on a bipartisan basis. It made many mixed-status households with undocumented family members eligible for stimulus checks. US citizens and permanent residents who filed a joint tax return with an undocumented spouse had previously been excluded from stimulus relief.
It’s not clear whether Republicans, who stood by Trump’s immigration policies, would similarly support a path to citizenship for immigrant essential workers. But in the aftermath of the insurrection at the Capitol, at least some Republicans “might want to take a step back from Trump, which might give them room to act more on immigration,” Pierce said.
Alternatively, Democrats could try to fold the legalization pieces of Biden’s bill — including the path to citizenship for essential workers and DACA recipients — into a budget reconciliation bill.
Conveniently, bills passed through budget reconciliation aren’t subject to the filibuster and, so long as Democrats are in agreement, they could pass such legislation without a single Republican. But there are also restrictions on the kinds of bills that can be passed through budget reconciliation, which basically comes down to this: “If the main effect is not budgetary, it’s not reconcilable,” as my colleague Dylan Matthews writes.
Kerri Talbot, director of federal advocacy for the Immigration Hub, said that she’s coordinating with House and Senate budget committees to analyze how Democrats could pass legalization provisions through reconciliation. They would have to price out the cost of legalizing people and then identify mechanisms to pay for it, which could, for example, involve raising fees on immigration applications.
Neither budget reconciliation nor a Covid-19 relief package could on their own deliver the kind of comprehensive reforms proposed in Biden’s bill, which will set a very high standard for progress.
“It’s a big deal that they’re releasing this bill,” Talbot said. “It’s a really a remarkable vision statement and really puts a glide path forward for the Congress to consider immigration reform.”