Immigration Matters - 2021


Congress Unveils President Biden’s Immigration Legislation

By Rishi P. Oza

Representatives in the Senate and House of Representatives unveiled President Biden's sprawling immigration reform legislation on Thursday, February 18, 2021, which seeks to deliver on long-needed modifications to the nation's current immigration system. The bills, which would require majority of votes in the House and a 60-vote threshold in the Senate, would provide for the following:

• Eight-year pathway to US citizenship for nearly 11 million undocumented immigrants, granting them “Lawful Prospective Immigrant" status for five years before being converted to standard resident status. Once a resident, they would wait for an additional three years to be eligible for US citizenship
• Increased funding for border security technology, but no funding towards his predecessor's “border wall"
• Immediate eligibility for permanent residency for individuals granted Temporary Protected States, certain farmworkers and DACA recipients; these same individuals would be eligible for US citizenship in three years
• Spouse and children of lawful permanent residents would become immediate relatives and enjoy the same speedy processing as their US citizen counterparts
• Elimination of current three and ten-year re-entry bars for individuals previously in the United States unlawfully
• Increasing the number of employment-based green cards to 170,000 annually and diversity visas to 80,000 annually
• Increased investment in Central American countries to help address the root causes of migration

The legislation marks a new ambiguous effort to overhaul the nation's immigration system, which has stymied presidential administrations dating back to President George W. Bush. The Biden Administration has approached the issue with a seeming willingness to break its overall bill into smaller and more agreeable parts, leaving more controversial portions to later negotiations while issues governing DACA and TPS recipients to potential passage. Any immigration policy overall, no matter the size, would represent an enormous step towards progress, as the current system operates on a band-aid type of approach, as opposed to the surgery-level reform that is needed.

As with all major legislative reforms, the keys to passage lies in the votes available in Congress. While the Obama and Trump Administrations relied heavily on the use of executive actions in impacting the immigration system (DACA, Muslim ban and border wall funding were not enacted through Congressional action), the Biden Administration is seeking genuine statutory change, which would be able to weather the whims of changes in presidential administrations. Congress' last major overhaul of the nation's immigration system occurred in 1996 and a reasonable observer would conclude that an update after 25 years of inaction is likely necessary.

The proposed legislation, if passed in its entirety, would be a boon for immigrants already in the United States, providing a long sought-after pathway to legalization that has been pursued for years. All benefits would require applicants to pass requisite criminal and security clearances and would also come with mandatory fees associated with filings. Although critics argue that any reform effort that does not require undocumented immigrants to return to their home country amounts to “amnesty", such arguments simply ignore the reality that the problem of millions of undocumented immigrants simply does not solve itself without intervention – enforcing removal for millions of individuals tears as America's self-image of a nation of immigrants and is a practical impossibility given the logistical and financial costs of such an draconian enforcement effort; keeping the status quo comes with the cost of depressing wages, allowing for the exploitation of labor and disenfranchising millions of individuals that live and work in our community.

Reform efforts are always transformative events that require courage, compromise and a dogged unwillingness to accept failure. The repeated attempts to reform the nation's immigration system has unfortunately suffered from too little courage and compromise and a surprising willingness to accept a failed outcome. While belief in government may be low given the current polarity of the national political discourse, achieving success, however imperfect, on immigration reform may help become heal a country sorely in need of a win.

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Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com