The $3.5 trillion infrastructure bill being debated in the House may include certain key immigration reform proposals, says Michael J. Freestone, a partner and immigration attorney at Tully Rinckey PLLC in Washington, D.C.
Sen. Bob Menendez (D-NJ) aims to include key parts of the U.S. Citizenship Act of 2021 in the proposal, including a path to citizenship for “dreamers,” farmworkers, essential workers and individuals holding Temporary Protected Status, says Freestone.
Texas Lawyer spoke with Freestone recently about the immigration reforms that may be contained in President Biden’s spending bill.
How likely is it that the immigration changes you mention will be included in the infrastructure bill?
Michael J. Freestone: I would say it was looking unlikely until last week. According to several sources—Sen. Joe Manchin (D-WV) is on board and that is critical support for the Democrats to go ahead with including the immigration provisions. The real test, or the trillion dollar question, is a parliamentary issue—can immigration legislation be included under the rules of reconciliation. A lot of the hype surrounding the U.S. Citizenship and Immigration Act of 2021 has now come back with these proposed changes in law. But this is a scaled back reform effort and the proposed changes are in line with the American Dream and Promise Act of 2021–H.R.6.
Why are immigration issues being discussed in an infrastructure bill–shouldn’t they be in a separate bill?
Well I think the plan here is to have a bill that cannot be killed by the Republicans. By following the rules of reconciliation the Democrats can pass the legislation on a 50-50 vote in the Senate. The crucial test is such a bill can only include provisions that have a real impact on the budget to pass reconciliation. All other attempts at comprehensive immigration reform have failed—although this is ‘immigration reform light.” Some of the prior champions of immigration reform on the right—Sens. Marco Rubio (R-Fla.) and Lindsey Graham (R-SC) have changed their tune in 2021.
Regarding the tactics, I can’t really blame them when Sen. McConnell (R-KY) said he is “100% focused on stopping [the Biden] administration.” If the tables were turned, I think absolutely we would be looking at McConnell attempting something similar if he could.
What constitutes an essential worker–are they considered a new class of immigrants?
I think it would create a new class of immigrant perhaps a new employment based grouping. The specifics of the bill are vague, and the essential worker statement is one of the vaguest. We likely will be looking at undocumented workers who are employed in essential industries. That sector is pretty broad: food services, industrial production, key financial sectors, health care — it goes on. Also it’s tricky to nail down exactly how many people that includes — we have to see the text to get an idea.
What must happen in order to pass or kill this bill?
The Democrats have to be 100% aligned on this, in both the House and Senate. No easy feat going by recent years. I think the fact that Joe Manchin is on board is critical. On the procedural side they have to make sure the bill passes the rules for reconciliation. A lot of criticisms have been made about immigration not being budgetary. For those individuals—I would point out the impact to the U.S. budget if 11 million people or even 3.5 million if you include the dreamers started paying full taxes. Or on an even more granular level what would be the budget effect if 3.5 million people filed for green cards at $1225 each?
Conversely to kill the bill the Republicans have to sow discord with the Democrats. That’s their best way to end the bill. On the parliamentary side they will want to be focused on the argument that this is not the correct form for this kind of sweeping legislation. I think you have seen this tactic beginning with Sens, Rubio and John Cornyn (R-TX) criticizing the use of reconciliation and trying to frame this a power grab.
What impact would these changes have on immigrants in the United States and more importantly, what would the impact and cost be to U.S. citizens?
Depending on the final text this could be a generational moment of change for the dreamers. We would see approximately 3.5 million individuals (estimated number of dreamers, including 700,000 DACA recipients) be able to apply for legal permanent resident. In addition, other classes of immigrants would be able to apply as well — temporary protect status holders who are in the United States, temporary farmworkers and whatever form the essential workers take. This could rise to even 11 million applicants–a huge moment for immigrants.
For U.S. citizens—I don’t anticipate there being any impact on U.S. citizens from this legislation. In the long term they will have more members of their communities who have been sidelined become active participants–0quite exciting really. Also the immigration system is fee based so the costs are borne by the applicants. I would again point out the huge influx of money into the economy from 3.5 million people able to buy homes, get credit cards etc. Finally, I know there has been a lot of concern, especially the last four years, with immigrants and crime. The vast majority of immigrants are not criminals and the immigration system has safeguards in place to prevent individuals with criminal records from becoming legal permanent residents, such as current Temporary Protected Status (TPS) countries such as Burma, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela and Yemen.
If President Biden’s bill passes, how likely is it that the 26 million or more non-citizens now residing in the United States vote in the 2022 Midterm Elections?
It is not likely at all. Only citizens can vote in mid-terms. None of the proposed immigration reform legislation in the last 20 years has ever included a fast track to citizenship. This bill would open the way for a large number of individuals to apply for legal permanent residence i.e. Green cards. The application process will likely take years given the sheer number of cases. Applicants who are successful must then wait 5 years before they can apply to be U.S. Citizens. Even then applicants must pass the citizenship process including English tests and civics exams. It would be more realistic to wonder if they are voting in 2031.
Finally this bill from what we understand does not seem to follow the boarder “amnesty” of individuals in the country without status that Reagan approved in the 80s. Instead this is a focused path for dreamers, temporary agricultural workers and certain other groups.
Do you have any other observations you would like to share?
The shifting dynamics of immigration debates in this country has complicated comprehensive immigration reform efforts greatly. I would say unjustly—immigration reform is needed across the board to update our immigration system and also to address individuals without status. We have not had an overhaul of the immigration system in over 30 years and it’s well overdue. I don’t think this proposed legislation reaches far enough to address problems in the immigration system but if it can improve the lives of millions people who have only ever known the United States as their home–then I support it.