President Joe Biden on Wednesday will send legislation to Congress that would offer amnesty and a path to citizenship to the bulk of the 11 million illegal immigrants currently in the United States, teeing up a potentially momentous struggle with Congress.
Biden's proposal would substantially overhaul the immigration system, loosening key restrictions to dramatically increase legal immigration alongside its amnesty provisions. At the same time, it contains only a few gestures at enhanced border security, a sign of the Democratic Party's turn away from the compromise approach that characterized previous immigration reform efforts.
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"The amnesty bill that Reagan signed in '86, as well as the two big amnesty bills that failed, in 2007 and the Gang of Eight bill in 2014, all were presented as a grand bargain of amnesty for people who were already established, but enforcement measures to supposedly ensure we wouldn't have to be having another amnesty debate a few years down the road," Mark Krikorian, director of the pro-restriction Center for Immigration Studies, told the Washington Free Beacon. "This bill rejects that concept altogether, and is essentially just an amnesty bill with no enforcement."
Biden cannot grant amnesty at this scale without legislative action. The bill, along with a host of executive orders, including an end to border wall construction and a reverse on the Trump administration's "travel ban," represents a stark about-face from predecessor Donald Trump, reversing an aggressive immigration enforcement regime and cuts to legal immigration. But those changes are unlikely to be popular with Senate Republicans, who have already blasted Biden's proposal.
That could mean a challenge to Biden's legislative agenda straight out of the gate, as the Republican minority in the narrowly divided Senate stalls Biden's proposed changes. That could, in turn, lead to a major first loss for the new president—or, more momentously, an end to the Senate's filibuster.
The core of the U.S. Citizenship Act of 2021, according to details released by the Biden transition team, is an eight-year path to citizenship for the overwhelming majority of America's estimated 11 million illegal residents. Those who pay taxes and pass criminal and national security background checks would be eligible for temporary protection, which in turn would become eligible for green cards after five years and citizenship three years after that.
Beneficiaries of DACA (640,000 people), Temporary Protected Status (roughly 300,000), and certain farmworkers would be able to obtain green cards immediately. Applicants will need to have been present in the United States as of January 2021, but that requirement can be waived specifically for those deported under the Trump administration who were here for "family unity and other humanitarian purposes."
The bill would offer other dramatic overhauls, substantially loosening immigration restrictions. It would boost visa quotas across all categories, including the diversity visa lottery quota. It would also allow approved family visa beneficiaries to come to the United States and reside temporarily until a green card becomes available, extending residency to nearly 3.5 million people currently in the backlog. And it would end the 3- and 10-year bars on reentering the United States legally if an applicant was previously an illegal resident.
In exchange for these changes, the Biden bill makes few concessions to border security. It pushes for expedited screening at the border, as well as enhanced drug screening equipment. But the only explicit proposal to curb surging illegal immigration is a commitment of $4 billion over four years to the several Central American countries from which many of those immigrants now originate, meant to target the "root causes" of migration.
The lack of enforcement provisions, Krikorian said, makes the measure a band-aid at best on the problem of the country's large illegal resident population.
"That's always the key to any amnesty provision, not whether it legalizes the people who were already here, but what does it propose to do about the people who aren't here yet," Krikorian said. "And there's nothing in this bill that gives me any confidence that we won't have another large, new illegal population at the end of this presidential term."
Biden's executive orders, issued Wednesday, strike a similar tone. In a series of promised reversals of Trump, Biden unwound Trump's interior enforcement executive order, stopped the construction of the border wall, granted Liberians temporary protection from deportation, and reversed Trump's ban on travel from certain countries known to be connected to terrorism.
Even before Biden's swearing in, his immigration plans were met with resistance from congressional Republicans. During confirmation hearings for Alejandro Mayorkas, Biden's tap for secretary of homeland security, Sen. Josh Hawley (R., Mo.) challenged the nominee, asking him if he "support[s] mass amnesty—11 million is a very, very large number. Do you support mass amnesty on that scale?"
Mayorkas backed his soon-to-be boss, endorsing the Biden plan. But it has drawn the ire of other Republicans, including Sen. Chuck Grassley (R., Iowa).
"I've previously supported immigration proposals that would provide certainty for DACA-eligible individuals and lead to greater border security and more robust enforcement of our immigration laws," Grassley said in a statement. "But a mass amnesty with no safeguards and no strings attached is a nonstarter. As we've seen before, that approach only encourages further violations of our immigration laws."
This hostility could prove a major challenge to Biden's legislative ambitions. The bill will need the backing of 10 Republican senators to make it past the legislative filibuster, a big lift when even moderates like Sen. Mitt Romney (R., Utah) are firm on controlling illegal immigration.
Senate minority leader Mitch McConnell (R., Ky.) has indicated to his caucus that he sees preserving the filibuster as of paramount importance and hopes to cooperate with new majority leader Chuck Schumer (D., N.Y.) to pass legislation. But Schumer's commitment to passing the bill could bring about conflict, rather than comity, in the opening days of Biden's term.