Comprehensive immigration reform in the United States has been a challenging issue for decades. Recently, the Biden administration signaled a broad immigration reform bill that included a pathway to citizenship for 11 million undocumented people. An official bill was introduced by Democrats in the House and Senate on February 18, but it is difficult to see an easy path for this legislation to advance in Congress as written.
While the verdict is still out on whether Congress will enact comprehensive immigration reform this year, smaller, stand-alone bipartisan bills may be better vehicles for improving our broken immigration system. Such bipartisan bills could include the Dream Act of 2021, the Farm Workers Modernization Act of 2019, Healthcare Workforce Resilience Act of 2020, and Citizenship for Essential Workers Act of 2021.
On February 4, 2020, Sen. Dick Durbin (D-IL) called on the Senate to end the 20 year stalemate around immigration legislation and pass the latest bipartisan version of the Dream Act of 2021. The re-introduction of the bill received widespread encouragement, including from the Bipartisan Policy Center. The bill provides immigrants brought to the United States as children a legal path towards permanent residency and citizenship. Recent polling suggests passing legislation legalizing “DREAMers” has wide public support across party lines. While approximately 84% of the American public overall supported providing a pathway to legal status for “Dreamers” in 2018, that favorability has gone up in subsequent years. Currently, 95% of Democrats, 84% of Independents, and 73% of Republicans support Dreamers and want to see legislation that puts this group on a path towards legalization.
The Migration Policy Institute estimates that under the Dream Act of 2021, approximately 2.9 million people could meet the age and residential eligibility for permanent residency, while 1.7 million people may be eligible for a green card under the bill’s additional criteria. Currently, qualifying undocumented immigrants can apply for the Deferred Actions for Childhood Arrivals program, but its fate has been precarious due to numerous court challenges; an outstanding case in Texas federal court could still rule that the DACA program was unlawful. However, even with multiple court cases against the program, DACA is popular, with around 650,000 participants as of June 2020. Most DACA recipients are from Mexico followed by El Salvador, and DACA recipients are known to have jobs with high skills and higher levels of education than undocumented immigrants who are ineligible for the program.
But many DACA recipients still continue to live in fear, uncertain if the program will remain in effect year after year with multiple court hearings. The DREAM Act of 2021 would end this uncertainty and put a big group of qualified individuals on a path towards legal status.
Introduced in 2019, The Farm Workforce Modernization Act sought to implement reforms to the preexisting H-2A visa for agricultural guest workers as well as provide a path to citizenship for many undocumented agricultural workers. The bipartisan bill, which was supported by both farmworker advocates and farm owners, passed the House in the 116th Congress. Under current House rules, if reintroduced this year in substantially the same form, it could go straight to the floor and pass again. The bill, as previously passed, puts forth a merit-based revised visa program designed to stabilize the agricultural sector and make sure it adequately meets the needs of both farmers and farmworkers. The three main components of the bill would include several reforms,1 but some of the major themes include:
- Legal Status for agricultural workers, including undocumented workers
- The bill would provide undocumented farmworkers and their dependents a pathway to legal status and citizenship through continued employment in the agricultural sector. Applicants and their dependents would have to clear background and national security checks.
- Qualifying farmworkers who have worked at least 180 days in an agricultural occupation over the last two years would be able to apply for the temporary Certified Agricultural Worker (CAW) status. With a CAW, farmworkers can renew their legal status indefinitely, as long as workers continue their farm work for at least 100 days out of the year.
- Flexibility for employers and protections for workers
- The bill would protect workers by establishing staggered levels of earnings for different agricultural occupations and establish new wage levels after 10 years to reflect real-world wage increases. However, it would also provide certainty for agricultural employers by eliminating wage-fluctuations during the work contract period and authorize freezing wage fluctuations at 3.25% for nine years.
- The visa program would be flexible and adaptable based on our agricultural labor needs; increasing and decreasing the annual cap based on labor shortages.
- The reform would allow employers to sponsor a higher number of H-2A workers for permanent residency and permit workers to self-sponsor their visas after 10 years of agricultural service.
- E-Verify for Agricultural Workers
- The bill would subject employers to a nationwide mandatory E-Verify system for all agricultural work. Currently, E-Verify is a voluntary service for employers to authenticate the legal status of their workers by matching employee records against government data.
- Employers who are non-compliant and continue to violate the proper hiring and recruitment strategies will be subject to increased penalties of $5,000 per violation and up to $25,000 for repeat offenses.
If enacted, the bill could legalize up to 325,000 undocumented farmworkers. The large bipartisan support for the bill in the House shows that there may be consensus on both sides of the aisle to reform our agricultural sector and benefit an important segment of the undocumented population currently residing in the United States.
The bill is yet to be re-introduced in the 117th Congress, but given the context of a COVID-19 economic recovery, and the instrumental role undocumented essential farm workers played during the pandemic, the bill may have a real chance of passing both chambers of Congress this year.
The COVID-19 pandemic continues to demonstrate America’s dependency on essential workers, many of whom are undocumented. According to some estimates, 5 million undocumented immigrants, among whom almost one million are DREAMers are working as frontline workers in essential occupations such as grocery clerks, farmworkers, delivery drivers, among others. Many also contribute their talents as doctors, nurses, and in other healthcare-related occupations. In this context, a call to recognize these immigrants and their crucial contributions, especially in healthcare fields, has gained broad and bipartisan momentum.
In May 2020, the Healthcare Workforce Resilience Act was introduced in both the House and Senate in order to provide relief to immigrant nurses and physicians during the COVID-19 national emergency.2 The bipartisan bill would help recognize the significant contributions of immigrant doctors and nurses by allowing them to apply for permanent residency by using unused employment-based immigrant visas from fiscal year 1992-2020. According to the bill, 25,000 of those visas would go towards nurses while 15,000 unused visas would be reserved for physicians. Furthermore, the visas would be exempt from the per-country cap, meaning applicants from countries with massive backlogs would still be eligible to apply, albeit if they meet all the licensing requirements. This legislation has not yet been reintroduced.
Meanwhile, Rep. Joaquin Castro (D-TX) and Sen. Alex Padilla (D-CA) have drafted legislation to recognize the contributions of undocumented essential frontline workers during the pandemic. The Citizenship for Essential Workers Act of 2021, would protect undocumented frontline workers from deportation and fast track their path to citizenship. According to the sponsors, this legislation would provide legal status for about 5 million undocumented essential workers, including agriculture workers, meatpackers, housekeepers, garbage collectors, health care workers, and grocery store clerks, among others.
Undocumented workers have been the backbone of our economy during this pandemic, and their continued contribution will be necessary for post-COVID-19 economic recovery. 1 in 5 workers in essential occupations are immigrants, and undocumented immigrants represent the largest group of essential workers. The loss of this group may be grave for our economic recovery. The bipartisan support earned by the Healthcare Workforce and Resilience Act may signal that other efforts aimed at providing relief to essential workers could similarly gain bipartisan support.
Three bipartisan bills: The Dream Act of 2021, the Farm Workforce Modernization Act of 2019, and the Healthcare Workforce Resilience Act of 2020 together would not only have a tremendous positive impact on millions of immigrants who contributed to our frontlines during the pandemic, but also to their dependents and the larger community. Many of these undocumented immigrants live in mixed-status families and are an integral part of their communities. According to some estimates, as of 2019, approximately 17.8 million American children under 18 lived with at least one undocumented parent. As we once again consider immigration legislation in Congress, looking toward bills that have earned support across the aisle in the past, and have broad public support, could be a means to show that immigration doesn’t have to be the “third rail” of politics any longer. Further, getting these “wins” could pave the way for more comprehensive legislation in the future. It’s long past time that Congress pass legislation to address immigration.
1 The reforms listed in this blog are not exhaustive.
2 Qualifying applicants could apply for the visa until 90 days after the COVID-19 national emergency.