On the first day of his administration, President Joe Biden announced he would send a sweeping immigration bill, the U.S. Citizenship Act of 2021, to Congress. After four years of increasing division and polarization surrounding immigration policy, Congressional Democrats unveiled the bill on February 18, which was applauded as a significant step towards ensuring that immigration reform remains top of mind for the new administration and the 117th Congress. As outlined in the White House’s fact sheet, the 350-page bill1 introduced by Sen. Robert Menendez (D-N.J.) and Rep. Linda Sánchez (D-Calif.) champions significant and long-needed reforms, including a pathway to citizenship for DREAMers and other undocumented immigrants; proposes clearing the family and employment-based visa backlogs by recapturing unused visas from prior years; and addressing the root causes of Central American migration via a $4 billion, four-year inter-agency plan. While these reforms are an important priority for modernizing our immigration system, the bill fell short in addressing long-term reforms of the employment-based visa system for lesser-skilled workers. With the bill facing an uphill battle on account of extremely narrow margins in both the House and Senate, congressional Democrats will likely need to make adjustments to aspects of the bill, if they hope to get it over the finish line, especially in the space of legal immigration reform.2 Here is what the bill does and does not address for lesser-skilled legal immigration reform and what solutions and opportunities congressional Democrats could consider when negotiating with their Republican colleagues across the aisle.
Earned Path to Citizenship
The proposed bill outlines broad legalization provisions that would apply to a large number of lesser-skilled and other undocumented workers. If enacted, the bill would allow undocumented individuals to apply for an interim legal status, with the ability to apply for green cards after five years, should they pass criminal and national security background checks and pay their taxes. Additionally, DREAMers, temporary protected status holders, and immigrant farmworkers who meet specific requirements are eligible for green cards immediately under the legislation. After three years, all green card holders who pass additional background checks and demonstrate knowledge of English and U.S. civics could apply to become citizens.
The farmworker provision of the bill is the largest worker legalization program and is outlined under Title I Sec. 1105 of the bill: The Agricultural Workers Adjustment Act. The act, which echoes portions of the bipartisan Farm Workforce Modernization Act that passed the House in 2019, would allow agricultural workers who have performed agricultural labor or services for at least 2,300 work hours (or 400 work days) in the five-year period before filing to get a green card. The act would also provide that the spouse and children of an eligible noncitizen agricultural worker may also adjust to permanent residence status, provided they also meet eligibility criteria. In addition, while another provision of the bill reduces the residence requirement for naturalization from five years to three years for legal permanent residents who, for at least three years before becoming a permanent resident, were both lawfully present and eligible for employment authorization, this would likely not apply to undocumented agricultural workers. However, they would be eligible to apply for citizenship after the normal five-year period if they pass additional background checks and demonstrate knowledge of English and U.S. civics.
Pilot Program for Regional Economic Development Visas
Part of the Biden campaign’s immigration platform was to support economic development in states and regions that struggle to meet workforce needs. Title III Sec. 3406(a) of the U.S. Citizenship Act would authorize the secretary of homeland security to create a pilot program for the admission of up to 10,000 additional immigrants per year whose employment is essential to the economic development strategies of the local communities to which they are assigned.3 However, the bill does not specify if these visas are restricted to existing high-skilled or lesser-skilled visa categories–or if an entirely new visa category will be created–and the pilot program cannot exceed five years in length. The bill would require companies to sponsor these workers and file labor certification applications. It does not appear that the visas could be used by immigrants seeking to start businesses. The bill language is vague, so it will likely fall to the discretion of the Department of Homeland Security as how to best implement the program. With so little direction, this could prove to be a pitfall of getting the regional program off the ground.
Increased Labor Protections for Farmworkers and Seasonal Migrant Workers
The U.S. Citizenship Act of 2021 outlines additional labor protections for farmworkers and other seasonal migrant workers. Sec. 5106, for example, amends a section of the Fair Labor Standards Act to provide for overtime pay (at least 1.5x regular pay) for agricultural workers, beginning January 1, 2022. Overtime pay shall be required after 55 hours in one week, beginning in 2022; 50 hours beginning in 2023; 45 hours beginning in 2024; and 40 hours beginning in 2025. The effective date of this section for employers with fewer than 25 employees is delayed by three years, to begin in 2025. Sec. 5107 amends the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) by setting criminal penalties for employers who knowingly violate the act.4 Sec. 5109 would create a Labor Law Enforcement Account in the general fund of the Treasury. Penalties paid to this account would be made available to the secretary of labor to ensure compliance with workplace laws, including through random audits of employers in industries with a history of significant employment of unauthorized workers or H-2As and H- 2Bs. While there are many reports of farm worker labor abuses, many agricultural employers oppose these measures, arguing that the labor rates would not be financially sustainable. Many of these employers prefer the negotiated provisions of the Farm Workforce Modernization Act that both farm unions and growers support.
Increased Green Cards for Skilled and Unskilled Workers
The bill proposes significant increases in green cards for both family-sponsored and employment-based immigration. These increases include recapture of previously unused visas from the last 28 years and increasing the number of visas available for workers by not counting family members who apply with them against the caps. This alone could more than double the number of employment-based visas annually. Removal of per-country caps would eliminate nationality-based backlogs in the system. The bill would also specifically add another 30,000 visas to the employment-based “other worker” category for non-professional or degreed workers. The increases in family-sponsored migration could also provide green cards opportunities to many lesser-skilled workers abroad with family ties to the United States, although not directly employer sponsored. These changes will improve green card opportunities for many lesser-skilled workers.
While the U.S. Citizenship Act of 2021 outlines important reforms for agriculture and undocumented workers already in the United States, and increases over all green-card numbers, it does not make any major reforms to the existing permanent or temporary worker visa categories. For example, while the proposed legislation increases the base number for the calculation of the annual ceiling for the admission of employment-based immigrants from 140,000 to 170,000 green cards, it does not make any changes to temporary worker categories or their caps. The H-2B program is not addressed in the bill. While additional green cards are welcome, most employers do not hire foreign workers directly on green cards; most immigrants start on temporary visas before employers are willing to sponsor them.
For example, there is no change to the numerical 66,000 cap that applies to the H-2B visa. In recent years, the demand for H-2B visas has far exceeded their cap, leaving employers struggling to find a sufficient workforce. With the number of migrants arriving at the southwest border increasing in recent months, the Biden administration will need to contend with longer term solutions to manage migration at the border. Removing existing barriers and establishing more avenues for legal, lesser-skilled immigration to the United States could be a mechanism to do so, especially as small businesses struggled to fill seasonal jobs with native-born employees.
In the days since the bill has been introduced, it has received significant pushback from Republican members of Congress. While Democrats are hoping to push this comprehensive bill as the primary vehicle for immigration reform, it has become clear that if the bill is to be passed, they will need to find bipartisan provisions to incorporate. Indeed, President Biden has already signaled he is willing to tackle the bill piecemeal, and has asked Republicans to “come to the table” with their own suggestions. Hopefully they will, because long past time that Congress reformed America’s immigration system.
1 The bills introduced in both the House and Senate are identical.
2 For example, Rep. Victoria Spartz (R-IN) tweeted that the Biden administration should be focusing more on avenues to reforming legal immigration, signaling possible avenues for bipartisan legislation on future reforms.
3 This pilot program seems to be similar in concept to proposed state-based visa programs. To learn more about proposed state-based visa programs, read our report here.
4 Such criminal penalties would include a maximum $1,000 fine and/or maximum prison term of 1 year. Conviction for a subsequent violation of MSPA would result in a maximum fine of $10,000 and/or a maximum prison term of 3 years.