Biden allies introduce wide-ranging immigration bill in Congress—02-22-21

Immigration news, in context

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This week’s edition:

  • In The Big Picture, we examine the immigration legislation introduced last week.

The Big Picture

The news: Democrats in Congress have introduced President Joe Biden’s long-awaited comprehensive immigration bill, a 353-page measure that touches on several different parts of the nation’s immigration system. We break the bill down below.

Title I: The “Earned Path to Citizenship”

The centerpiece of the bill is a provision that would create a path to citizenship for millions of undocumented immigrants living in the United States. Those who were in the country before January 1, 2021 and meet other eligibility requirements—including not having been convicted of a felony, three or more misdemeanors (excluding possession of marijuana or related paraphernalia), and not being deemed inadmissible due to certain criminal convictions or on national security grounds under the Immigration and Nationality Act—will qualify. 

Applicants who meet the eligibility requirements can obtain “lawful prospective immigrant status,” (LPI), which is valid for six years. During that time, they would be able to legally work and live in the United States. After a five-year period as an LPI, eligible immigrants would be able to apply for legal permanent resident status, commonly referred to as green cards. After three years as a permanent resident, immigrants can apply for citizenship. (Currently, one must have five years of permanent residency before becoming eligible for citizenship, except in cases of marriage to a U.S. citizen or military service.) In total, the process of obtaining citizenship will take at least eight years.

Some groups of immigrants will be able to apply for citizenship on an expedited timeline. Undocumented youth who came to the U.S. before turning 18 can immediately obtain permanent residency if they:

  • Have a high school diploma or equivalent certificate

  • Have a degree from “an institution of higher education,” are at least two years into an undergraduate program, or have a degree from a technical school

  • Or have served in the military for at least two years

  • Or can demonstrate earned income for at least 3 years

  • Have registered for the Selective Service if they’re required to do so

Those with DACA and Temporary Protected Status would also immediately qualify for permanent residency, as will agricultural workers—including seasonal workers—who can prove they’ve worked 2,300 hours or 400 work days in the five-year period preceding their application. DACA recipients will also qualify for USDA, Fannie Mae, and Freddie Mac mortgages and will be able to work for the House of Representatives.

LPIs will have to have “continuous physical presence” in the U.S. from January 1, 2021 until the date their application is approved, but “brief” travel outside the country is allowed, as long as the LPI isn’t outside the U.S. for 180 or more aggregate days in one calendar year. The bill would also let LPIs obtain advance parole, which would let them freely enter and exit the U.S., and would make it so they’re not considered unlawfully present in the U.S. for purposes of inadmissibility—one of the criteria that could otherwise trigger deportation.

A subsection of this title, called “Other Reforms,” has received less attention but would implement a host of changes to the immigration system. It would expand eligibility for V-visas, which were a popular way for formerly undocumented family members of permanent residents to stay in the U.S. as their immigration processes went forward if they had applied for immigrant visas before December 21, 2000. That cutoff date would be eliminated, and the eligibility would be expanded from only the spouses and children of lawful permanent residents to any family-sponsored immigrant. The mandatory three-year waiting period for such visas would be eliminated.

This section of the bill would limit who can be put in deportation proceedings after being charged with or convicted of a crime.

The bill would modify the INA’s definition of “conviction” to exclude any offense that has been dismissed, expunged, invalidated, etc. It would similarly waive grounds of inadmissibility or deportability based on criminal convictions if, at the time of sentencing or within six months of sentencing, the judge presiding over the noncitizen’s criminal case recommends that they not be deported based on the crime in question.

It would also amend the grounds of inadmissibility for crimes regarding moral turpitude so that a noncitizen who commits up to two crimes under the age of 18 and at least five years before applying for a visa or other immigration benefit is still eligible. (Currently, the exception is for those who have committed one crime under the age of 18 and at least five years before applying for a visa.) 

The bill would create a new section of the INA allowing the DHS Secretary or Attorney General to waive deportation proceedings for people deemed inadmissible or deportable due to certain crimes. The AG or DHS secretary would be able to “consider all mitigating and aggravating factors, including A) the severity of the underlying circumstances, conduct, or violation; B) the duration of the noncitizen’s residence in the United States; C) evidence of rehabilitation, if applicable,” and the extent to which the noncitizen’s deportation would adversely affect them and their family members. 

These provisions have gotten less attention than the path to citizenship, but the implications could be significant. In 2014, President Obama announced a shift in immigration priorities: ICE would begin targeting “felons, not families.” But as many critics rightly pointed out—and as the data later showed—many of those deported during the last years of the Obama administration had been charged with or convicted of minor crimes, or had no criminal records at all

Title II: Addressing the Root Causes of Migration

This section of the bill focuses on two things: reducing migration—especially unauthorized migration—from Central America by focusing on limiting push factors, and building the infrastructure to process refugee and asylum claims within Central America.

The bill would provide $1 billion in funding from fiscal years 2022 to 2025 in order to implement a “U.S. Strategy for Engagement in Central America.” That funding would be used to address gang violence, domestic violence, police corruption, and poverty in Guatemala, El Salvador, and Honduras—three countries whose nationals make up the bulk of asylum claims in the U.S. There would be additional funding for an “information campaign” regarding the “dangers of irregular migration,” which would be targeted at regions throughout Central America with high rates of unauthorized migration to the U.S. 

A separate section of this title is dedicated to expanding refugee and asylum processing. It would establish “Designated Processing Centers” in El Salvador, Guatemala, and Honduras where prospective refugees, asylum seekers, and other immigrants could apply for protections in the U.S. The bill would reestablish the Central American Minors Program, which the Trump administration ended in August 2017. That program lets Central American children who have a parent or guardian lawfully present in the U.S. apply for status while still in Central America rather than crossing the border unaccompanied. Children granted special immigrant status under that program would not count towards the numerical limitations under the INA. The bill would also create a separate application process for adults called the Central American Family Reunification Parole Program, which would allow for the entry of people who have been approved for family preference immigrant visas.

The bill also instructs the DHS secretary to develop a plan to deploy “smart technology” to the U.S.-Mexico border. This section is short on specifics, but suggests the Biden administration’s preference for a tech “wall” rather than a physical structure, though the intent is the same. However, the bill also requires the Government Accountability Office to conduct a study on the executive branch’s ability to waive environmental,  archaeological, and other laws in order to build roads and barriers in the borderlands, and to analyze the effects of such waivers thus far.

Another section is dedicated to improving conditions along the border. One provision would require medical training for Border Patrol agents. All Border Patrol stations would be required to have “voice access” to pediatricians or doctors with pediatric training. DHS would have to develop guidelines regarding the treatment of children in its custody, and all DHS staff who have contact with children would have to undergo mandatory training. Officers would be forbidden from separating children from their parents for the explicit purpose of deterring migration. Additionally, CBP would have to buy and maintain self-powering rescue beacons in order to prevent migrant deaths, and DHS and all its component agencies would also be required to issue policies regarding use of force. 

Title III: Reform of the immigrant visa system

A large part of what the immigrant visa system changes are about tweaking things to remove some of the procedural obstacles that were keeping people from effectively utilizing the system as it already exists. One of the most significant provisions is the repeal of the three- and ten-year bars, which generally affect people who have left the country after being present unlawfully for more than 180 days and one year, respectively. The provision often created a situation where family members of U.S. residents and citizens were technically eligible to adjust their status to resident, but only by leaving the country first, which would then trigger these bans on re-entry, leaving them in an unending catch-22 situation.

It also aims to cut down on wait times and backlogs by injecting unused family category visas going back to fiscal year 1992 back into the annual limit, and would stop subtracting admissions of certain immediate relatives from the next year’s cap. The spouses and children of legal permanent residents would now count as immediate relatives not delimited, and all of these family preference limitations would go from being absolute numbers to percentages of the total number of available visas. The total number of employment-based visas would go from 140,000 to 170,000 per year.

The bill would also tweak the always-controversial per-country caps, which limit the percentage of available immigrant visas that can go to nationals or habitual residents of a particular state per year. These caps are the reason that family visas can go unused while there’s still a long backlog of people seeking them from countries such as Mexico. The caps would be raised from 7 percent (and 2 percent for a dependent area) to 20 percent (and 5 percent for a dependent area). A separate provision ensures that children who would age out of eligibility while waiting for an immigrant visa — a common problem — remain eligible and keep their priority dates.

The diversity visa program would be expanded from 55,000 to 80,000 visas annually, and several additional tweaks would be made to employment-based immigration. People with doctoral degrees in STEM fields would not count towards numerical limits, and it would eliminate these limits for all employment-based would-be immigrants with approved visa petitions but who have been in the backlog ten years or longer. Perhaps most significantly, it would eliminate per-country caps altogether for employment-based immigration. While these visas are typically all used, the caps leave people from countries such as China and India waiting up to decades to receive permanent status, often while already living in the U.S. under work visas like the H-1B.

The number of visas available for 3rd-preference workers (less specialized) would be expanded from 10,000 to 40,000, though DHS officials would be able to tweak 2nd- and 3rd- preference admissions based on factors like high unemployment. This seems like an acknowledgement that the administration could face political backlash for being seen as admitting high numbers of immigrant workers at times when there are domestic economic shocks. Tellingly, though Biden advisors have said that the president would rescind Trump bans on immigrants and workers, he has yet to actually take that step, presumably out of concern about the optics.

An interesting new program is a pilot for “regional economic development visas,” i.e. immigrant visas earmarked for employees who would be essential to the economic development of certain areas. Up to 10,000 visas would be part of this program, which could run a maximum of five years. A national version of this concept has long been discussed as a potential remedy to economically stagnant areas, in much the same way as refugees often act as a revitalizing force. A number of other employment-based tweaks are intended to resolve existing issues, such as allowing dependents of H-1B holders to receive employment authorization and work.

There are a number of definitional changes to clarify that permanent partners, defined as adults in lifelong committed relationships, have the same rights as married couples if they are unable to get married in the jurisdiction where either of them reside. Children that can be sponsored would include the children of these permanent partners, and U.S. citizenship at birth would be conferred on a legal basis, not a biological one (there have been some infamous cases of children born through surrogacy or other non-traditional arrangements not being initially granted citizenship).

A little-noticed change would restrict presidents’ ability to utilize 212(f), a provision that we’ve discussed at length before, and which formed the basis of all of Trump’s travel bans — from the so-called Muslim and Africa bans to the near-total bans on immigration and certain temporary work visas, supposedly as a response to the coronavirus pandemic. The new language would force the president to consult with Congress and provide concrete evidence as to the need for the provision’s use, and allow the orders to be subject to judicial review by U.S.-based individuals affected by it. It seems tailored to prevent future leaders from being able to unilaterally enact huge immigration restrictions without explanation, a power that is currently laid out in law.

This section would also create a number of entities and initiatives to promote access to naturalization and integration into the U.S., including a foundation to, among other things, help people navigate the citizenship process. Grants and funding are to be made available for states, localities, and non-governmental entities to support people going through citizenship processes, help immigrants learn English and find employment and promote naturalization for those that are eligible. Certain naturalization requirements are slightly eased, such as making English-language exceptions for some seniors. 

Title IV: Immigration courts and interior enforcement

This section deals with the immigration courts and the adjudication and enforcement system. The Department of Homeland Security would be required to expand its use of alternatives to detention, which include things like ankle bracelets and orders to check in periodically with ICE personnel. Like the “virtual” border wall, this sounds better than the alternative, but carries its own slate of risks that should be carefully examined.

To address the massive immigration court backlog, the bill would direct the attorney general to hire a minimum of 55 immigration judges per fiscal year for years 2021 through 2024, as well as additional support staff, and have these judges be qualified in immigration law and drawing from not only prosecutorial backgrounds but from nonprofits and other more defense- and advocacy-focused backgrounds. This last bit is no doubt a response to the Trump administration’s efforts to remake the immigration courts to advance its political agenda.

It would also codify efforts to increase court efficiency through the use of technology and other means, as well as enhancing due process for those in court. As we’ve noted before, noncitizens in removal proceedings aren’t entitled to government-appointed attorneys like criminal defendants are, meaning that those who can’t afford a lawyer and aren’t able to otherwise secure one go unrepresented. The bill wouldn’t outright create a guarantee of representation, but would give the government the power to directly appoint counsel for those who didn’t have it, funded by a $25 surcharge to be added to immigration fees. Appointment of counsel would be required for children, the parents of citizen minors, and vulnerable people like victims of abuse.

Grants would be made available to school districts to accommodate unaccompanied minors in government custody or with sponsors, and legal orientations provided to these sponsors to ensure that they know how to legally support the minors as they go through their cases.

The bill directs the government to develop processes for safe “repatriation,” i.e. deportation, working with USAID and local governments to supposedly help deported people reintegrate into local societies, particularly in Central America. This falls into the purview of the administration’s desire to address the “root causes” of migration, as presumably helping people resettle in their countries of origin will stop them from attempting to travel to the U.S. again. 

The 1-year deadline to file an asylum claim would also be eliminated, meaning that asylum seekers would have longer to decide or prepare to file a case. People previously denied asylum would have an opportunity to file a new application if they could prove that, since that denial, there had been materially changed circumstances relevant to their case.

There would be a number of tweaks to asylum and other humanitarian statuses, including raising the annual limit on U visas for people who have cooperated with law enforcement during criminal investigations from 10,000 to 30,000 and ensuring greater access to work authorization for asylum seekers and people seeking other types of humanitarian statuses. It also establishes a presumption of release, not detention, for people who’ve filed applications not found to be frivolous.

Title V: Employment protections

This section of the bill is dedicated to strengthening employment protections for noncitizens, including undocumented immigrants. It would establish an Employment Authorization Commission within 180 days of the bill’s enactment. The commission would be responsible for verifying noncitizens' eligibility to work in the U.S., examining E-Verify error rates, and other duties. 

A separate section would make undocumented immigrants who have information about labor violations that result in workplace claims eligible for U-visas, a type of visa for victims of certain crimes who help the government with investigation or prosecution. The bill would also protect noncitizen workers against retaliation and intimidation for reporting violations. There are specific provisions for farmworkers that would require overtime pay and stipulate a minimum wage and maximum work hours for all agricultural employees, including those who are the immediate relatives of their employers. It would implement new penalties for willfully or knowingly violating the Migrant and Seasonal Agricultural Worker Protection Act, and would establish a Labor Law Enforcement Account funded by penalties imposed on employers who violate certain labor laws.

What’s next?

As others have pointed out, unless the filibuster is abolished by Senate Democrats, the odds of this bill passing as written are pretty slim. Republicans have largely already come out to malign it as some sort of open-borders pipe dream, and it is true that it doesn’t capitulate to conservative perspectives quite as much as previous efforts at comprehensive immigration reform. For one, it doesn’t include immigration cutbacks to go with legalization schemes, i.e. there’s no area where legal immigration is reduced (except for DHS officials having the discretionary capacity to reduce certain employment-based immigration flows, but there’s no absolute numeric reduction).

That doesn’t mean that it’s devoid of any enforcement language. As we’ve discussed, it appears to direct the government to create invasive technological barriers and surveillance at the border, and there are discrete attempts to dissuade would-be asylum seekers and other migrants from attempting to make the trek north in the first place. There’s a section on deportations as well, with an eye to helping people “reintegrate.”

Still, it’s a very ambitious and wide-ranging proposal that incorporates many items from the immigration advocacy wish-list — some big-ticket, easily understandable shifts like the path to citizenship for most undocumented residents, and other more arcane and procedural changes like ensuring work authorization for the H-4 dependents of H-1B visa holders. The bill has been described as a roadmap, and that’s essentially what it is: a set of priorities for the Biden administration and Democrats in Congress. With Senator Joe Manchin (D-WV) still opposed to getting rid of the filibuster, it’s more likely that pieces of the bill might get stripped off and introduced standalone.

There are plenty of areas that could garner Republican support, such as the parts dealing with reforming the employment-based immigration system. Many advocates themselves believe that the bill isn’t passable in its current format, though they celebrate that the Democrats at least seem to be willing to stand their ground on it.