By Diego F. Salinas, Woodson Martin Democracy Fellow, Nadiya Khaydari (JMU ‘22, Political Science and Economics) and Mary Tolentino (JMU ‘23, Health Sciences & Medical Spanish)
On his first day in office as the 46th President of the United States, President Joe Biden introduced a vision for legislative action in Congress on immigration reform dubbed the U.S. Citizenship Act of 2021 with the goal of establishing a new system to “better manage migration across the Hemisphere.” The legislative vision aims to achieve immigration reforms that have been called for since the 1990s. It also includes a direct repudiation of Trump administration policies, for example by incorporating the NO BAN Act and calling for the replacement of the world “alien” with “noncitizen” in the language of U.S. immigration laws. In this post, we break down the U.S. Citizenship Act of 2021 into three major categories: humanitarian reform, labor, and law enforcement.
There is currently no legislative text and it is unclear how these proposals will actually play out in Congress. Immigration reform through the legislative process in Congress faces significant challenges, especially in the Senate where the Democrats hold the majority by a single vote. Some members of Congress, including members of the Hispanic Caucus, believe that immigration reform will need to be piecemal rather than comprehensive. A recent report by the Chicago Council on Foreign Affairs shows that two-thirds of Americans support providing a pathway to citizenship for non-citizens.
HUMANITARIAN
When it comes to humanitarian relief, the U.S. Citizenship Act of 2021 seeks to reform the immigration system to better help individuals already within the country and those abroad.
Undocumented individuals currently in the country can apply for a temporary legal status which would allow them to apply for a Green Card after five years, as long as they pay their taxes and pass criminal and national security background checks. DACA recipients (a.k.a., Dreamers), TPS holders and immigrant farmworkers who meet “specific requirements” will become immediately eligible for a Green Card. After three years of holding a Green Card, those individuals will be eligible to apply for citizenship so long as they were physically present in the U.S. on or before January 1, 2021. The legislative vision would also allow the Department of Homeland Security to waive the presence requirement for people who were deported on or before January 20, 2017 and who were also physically present in the U.S. for at least three years prior to their removal. This effectively offers a pathway to citizenship for upwards of 11 million undocumented people currently in the United States, along with a sizeable population of people who were deported by the Trump administration.
The Biden administration seeks to clear the backlog in the immigration system by expanding family case management programs, reducing immigration court backlogs, expanding training for immigration judges, and improving technology for immigration courts. The legislative vision also sets aside funding to provide legal counsel to children and vulnerable individuals who would otherwise have to face the immigration system with no legal representation. Furthermore, immigration judges and adjudicators are given greater discretion to offer relief to “deserving individuals.”
In an effort to keep families together, the legislative vision takes aim at the 3 and 10-year bars, seeking to eliminate the provisions which prevent the re-entry of individuals who previously had an unlawful presence in the United States. The proposed law goes farther by allowing immigrants with approved family-sponsorship petitions to be able to wait in the United States while they await their green cards. This would allow more than 4 million people to rejoin their families while they wait for their paperwork to be processed. Funding would also be allocated to support public and private initiatives that aid with immigrant and refugee integration as well as for schools to provide support to unaccompanied children.
The legislative vision would also provide relief for people seeking visas to enter the United States. If passed, immigration reform would increase Diversity Visas from 55,000 to 80,000 as well as raise the cap on U visas (victims of criminal activity) from 10,000 to 30,000. Protection would be expanded for U visa, T visa (victims of human trafficking), and Violence Against Women Act applicants, LGBTQ+ families, as well as orphans, widows, children, and Filipino veteran who fought alongside the U.S. in World War II. For those seeking asylum, the one-year filing deadline for filing claims would be eliminated.
In an effort to address the root causes of migration in El Salvador, Guatemala, and Honduras, the legislative vision offers $4 billion to reduce violence, corruption, and poverty in the region. The administration seems interested in working with Central American countries to establish Designated Processing Centers throughout the area in an effort to register and process refugees for resettlement in the U.S. or other partner countries. The Central American Minors program would also be reinstituted to reunite children with U.S. relatives and the Central American Family Reunification Parole Program would be created to reunite families with approved family sponsorship petitions.
LABOR
The Biden plan includes provisions that would not only protect migrant workers but also make it easier for certain individuals to work and then remain in the United States.
Biden’s legislative vision would increase access to Green Cards for lower-wage sectors, make it easier for individuals with advanced STEM degrees from American universities to remain in the country, and simplify the employment-based Green Card system. It would also allow the dependents of H-1B visa holders to receive some form of work authorization. Children who are waiting to immigrate with their parents would also be prevented from aging out at 21, as is the current rule. This policy has caused many children to “self-deport” or seek other difficult avenues to stay in the U.S. even after living most of their lives in the country.
In an effort to protect migrant workers, legislation would offer victims of labor violations greater access to U visa relief while their case is investigated. Individuals who have been retaliated against will also be protected from deportation and employers who violate labor laws face increased penalties. A commission made up of labor, employer, and civil rights organizations will also make recommendations on ways to improve the employment verification process.
LAW ENFORCEMENT
The Biden immigration plan increases funding to develop technology that would improve infrastructure at all ports of entry with a keen eye towards screening out narcotics and enhancing the ability to process asylum seekers. Whereas the Trump administration committed to building a wall along the entirety of the U.S./Mexico border, President Biden’s plan calls for flexible technology solutions that can better monitor stretches of the border between ports of entry. Any human traffickers or narcotics traffickers would face greater prosecutorial scrutiny under Biden’s legislative vision.
Amid calls to defund police and abolish Immigration and Customs Enforcement, the Biden administration seeks to put DHS and Customs and Border Patrol (Customs and Border Patrol) under some scrutiny. The legislative vision also directly references limiting the right of DHS to waive environmental, state, and federal laws to expedite border barrier construction. Legislative reform would instruct CBP to develop guidelines and protocols for standards of care for individuals, families, and children in CBP custody.
MORE RESOURCES
- Pew Research Center, Key Findings About U.S. Immigrants
- Gallup, Immigration
- Pew Research Center, Americans broadly support legal status for immigrants brought to the U.S. illegally as children
- American Immigration Council
- Democracy Matters, Ep. 49, From Chaos to Compassion
DISCUSSION QUESTIONS
- How would immigration reform envisioned by the Biden administration differ from the Trump administration?
- How would immigration reform envisioned by the Biden administration impact migrant families, workers and individuals seeking refuge or asylum?
- What are the obstacles to comprehensive legislative reform in Congress? How might such obstacles be overcome?
- What changes would you propose for reforms to the American immigration system? How do your ideas differ from those of Biden and Trump administrations?
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