Parliamentarian nixes immigration changes in reconciliation bill

The Parliamentarian of the Senate said this afternoon that the immigration provisions are not permitted in the reconciliation bill. The Washington Post has exerpted from her decision, which appears to me to say that immigration reform is so overwhelming in its impact of affected people that the budgetary implications are trivial. The decision in full is here.

Senate vote on a 2007 reform package is detailed here, in which the reform bill was defeated 53 – 46.

In 2013, the Senate voted 68 – 32 for immigration reform; the Speaker of the House, John Boehner, refused to bring it up. In 2017 there was a flurry of Senate activity which went nowhere.

In 2001, with the Senate split 50-50, Republican Majority Leader Trent Lott fired the parliamentarian who ruled against a provision in an reconciliation bill.

Farmworker provisions in the reconciliation bill

I have not seen the farmworker provisions in the reconciliation bill but I understand they are similar to the farmworker provision in the Agricultural Workers Adjustment Act of 2019  (also here) and also in Biden’s U.S. Citizenship Act of 2021. The 2019 was passed by the House with 35 Republicans voting for it. (The bill had 24 Dem and 20 Rep sponsors.) Bills to normalize the legal status of farmworkers have been proposed since at least the 2000s.

One approach to farm labor is to create a large, long term guest worker category. California farmers have opposed that option.

Here is the pork industry behind the farmworker provisions in the reconciliation bill, and here is another industry advocate.

The U.S. Citizenship Act provisions for farmworkers in summarized here:

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.

Millions of workers to become more productive due to immigration changes

A major chronic problem with people in unauthorized or legal but vulnerable immigration status is that they are less economically mobile and as a result less productive. has put together estimates of the number of people in this condition. A two adult household with one adult unauthorized or in Temporary Protected Status, plus persons on temporary work visas, means that both adults are economically less mobile. This limited mobility may affect at least 10 million and possibly up to 15 million working age people.

(Start with 8 million unauthorized workers and roughly 750,000 – one million persons on a legal temporary work visa which ties their hands. Then consider whom they are living with.)

Check oit the FWD Interactive tool which gives you its state-level estimates. estimates that some 10.6 million U.S. citizens live with undocumented immigrants. More than 22 million people in the U.S. live in mixed-status households, where at least one undocumented person lives with U.S. citizens, green card holders, or other lawful temporary immigrants. All told, more than 1 in 20 people in the U.S. are under constant threat of being separated from family members and loved ones in their home.

About 5.8 million U.S. citizen children live with undocumented household members, with 4.9 million of these children having at least one undocumented parent. Most of these children were born in the United States, are U.S. citizens, and are enrolled in public schools. Some U.S. citizen children have been barred from accessing benefits to which they’re entitled, including access to COVID-19 recovery assistance, because of their parents’ undocumented status.2

At the same time, nearly 1.7 million U.S. citizens have a spouse who is undocumented. Roughly a quarter have been married for 20 years or longer, while more than half have been married for 10 years or longer.

California, Texas, Florida, and New York have some of the highest numbers of U.S. citizens living with undocumented immigrants; more than half of U.S. citizens living in mixed-status households live in these four states.

Two key Dem supported immigration changes

The budget reconciliation bill as it now stands, after completion of  work by the House Judiciary Committee in preparation for a House vote, is a gargantuan acceptance of unauthorized persons into legal status and an acceleration to green card status of many legal applicants, some having waited for many years. Here are two provisions.  The affected persons adjust their status to permanent residency if they pay a supplemental fee of $1,500 and pass security/law enforcement checks and a medical exam.

-Has been continuously physically present in the US since 1/1/2021
-Was 18 years of age or younger when the person entered the US and has resided continuously since that date

Applicants must meet one of these 4 categories –
(1)Demonstrates a record of honorable service in the Uniformed Services of US,
(2)Attains or completes at least 2 years in good standing in a program leading to a degree from a US institute of higher education or a postsecondary credential from an area career and technical education school in the US
(3) During the 3-year period immediately before applying to adjust under this section, a consistent record of earned income in the US;
(4) Enrollment in a US institute of higher education or a postsecondary credential from an area career and technical education school in the US and current employment or participation in an internship, apprenticeship, or similar training program

Essential Workers
Who is an essential worker? According to DHS, essential workers are those typically essential to continue critical infrastructure operations. Critical infrastructure is a large, umbrella term encompassing sectors from energy to defense to agriculture. Includes cyber security, pharmacy workers, personal aides caring for chronically ill persons, law enforcement, restaurant workers, etc.

Here is a key August 10 2021 advisory memorandum which lists the categories of essential workers. The formal name is “DHS Advisory Memorandum on Ensuring Essential Critical Infrastructure Workers’ Ability to Work During the COVID-19 Response issued on 8/10/2021.”

The worker:
-Has been continuously physically present in the US since 1/1/2021
-Demonstrated a consistent record of earned income in the US in an occupation listed in DHS’ Advisory Memorandum


The Congressional Dreamer agenda gets very hot

What is in effect The Dream Act will be coming to a vote in September. A killer problem is whether the Senate parliamentarian will allow immigration provisions to be included in a budget reconciliation bill. Here is a briefing on the issues.

To start off, the House bill H.R.6 legalizes Dreamers and protects other immigrant populations. Pelosi included H.6 in her budget bill passed on August 24. 

The American Immigration Council says the following about Dreamer legislative efforts. For a more detailed analysis, go here.

The first version of the Development, Relief, and Education for Alien Minors (DREAM) Act was introduced in 2001. At least 11 versions of the Dream Act have been introduced in Congress. To date, the 2010 bill came closest to full passage when it passed the House but fell just five votes short of the 60 needed to proceed in the Senate.

The Dream Act of 2021 was introduced in February in the Senate and The Dream and Promise Act of 2021 (H.R. 6) was introduced and passed in March   Both bills would provide path to citizenship for Dreamers. H.R. 6 would also provide a path to citizenship to beneficiaries of two humanitarian programs: Temporary Protected Status (TPS) and Deferred Enforced Departure (DED). 

the Council estimates that 3 million Dreamers meet the age at entry and educational requirements for conditional permanent resident status under H.R. 6. 2.5 million of are likely to obtain the qualifications necessary for the removal of the conditions on this status. 1.1 million more Dreamers could become eligible for conditional permanent resident status if they enroll in school. Another 400,000 people meet the criteria to adjust to legal permanent residence based on their eligibility for TPS or DED.

Again, the House passed on August 24 a budget bill that includes the contents (revised) of H.R.6. (On September 10 some other provisions appeared relating to visa backlogs and unused visa quotas. See @ReichlinMelnick.)

The Immigration Forum reports on the legislative uncertainties:

The Senate parliamentarian will decide shortly whether Schumer can include in the reconciliation budget bill coming from the House immigration provisions. Go here for a close-in view of the parliamentarian’s role .on this matter

If the parliamentarian green lights the provisions, House Democrats will aim to pass an omnibus bill on party lines by September 27, bringing together Senate passed infrastructure bill (The American Investment and Jobs Act) and the budget reconciliation bill including the immigration provisions. The House passed the budget bill on August (220 to 212).

Once the House approves the omnibus bill, it will go back to the consideration of the Senate. where Democrats hope to by reconciliation to pass the entire package inclusion the immigration provisions.

Study recommends more immigrants

Pro immigration ideas are centering in an increase in immigration by about a third from the pre Trump / pre pandemic levels.

The National Immigration Forum recommended earlier this year an increase in immigration: “We project that a 37% increase in net immigration levels over those projected for fiscal year 2020 (approximately 370,000 additional immigrants a year) will help prevent the US from falling into demographic deficit and socioeconomic decline.”

The ratio of retirees to active workers (the old age dependency ratio) is rapidly increasing. “In 2020 the Census Bureau produced a report that included four alternative migration scenarios and modeled their impact. This scenarios included (1) zero immigration in till 2060, (2) a 50% decrease in immigration, (3) static immigration levels, and (4) a 50% increase.” The report confirmed that increased migration will decrease the dependency ratio of retirees to active workers.

I posted an analysis of the Biden immigration bill estimating that it will increase immigration by 28%.

Biden’s new asylum rule

Biden has proposed a major change in managing persons seeking asylum. It strikes at a problem I’ve noted several times: a dysfunctional legal system which generates a huge backlog and thus incents people to game the system. Per the Migration Policy Institute:

The immigration court’s caseload stands at an all-time high of more than 1.3 million cases. Nearly half (619,837) are asylum claims. Asylum applicants typically face court dates that are years away.

(The idea behind asylum is that a person has a “credible fear” of persecution or torture if returned to their home country. the backlog is caused in large measure by immigration courts, rather than asylum officers, making the determination over credible fear.)

Under the new policy, asylum seekers found to merit protection will not be kept in limbo for years at a time while awaiting a final status determination. At the same time, those who may not have a strong asylum claim will have less incentive to apply for protection as a means of gaining U.S. entry, as often happens now, since the cases take so long to be decided.

The proposed rule would shift asylum decisions from being made by immigration judges in courtrooms to being adjudicated in interviews with asylum officers specially trained to decide protection claims.

At present, asylum officers decide asylum cases when they arise within the United States, not at the border. The border has been treated differently because asylum applicants are already in removal proceedings for having crossed the border without authorization, and so they enter a separate and much slower “defensive asylum” process before the immigration courts. The proposed rule would assign these cases to asylum officers.

The core idea is based on research and recommendations the Migration Policy Institute made in a 2018 report as a policy solution to make border case management more effective and timely.

Go here

e-Verify and the infrastructure bill

According to the Center for Immigration Studies. a few days ago a Republican senator proposed that the infrastructure projects employ only contractors who use e-Verify. All Republican senators voted for it. 45 Democratic senators voted against and and thus killed the amendment. 

Any serious plan to improve immigration policies and practices must include mandatory e-Verify. I don’t take any Democratic proposal for immigration reform seriously if it fails to mandate e-Verify, the electronic system introduced 20 years ago to help employers verify the legal status to work, using federal databases.

Crisis in employment green cards

A lot of people are saying that low birth rate in the U.S. (now 1.64, close to Europe’s and below the replacement rate of 2.1) justifies a higher level of immigration for economic prosperity. This argument is weak, unsupported in my view by a plausible model that higher population growth translates in more economic prosperity per person or household. However, I agree with idea that a higher level of immigrating workers than the trend in the past 20 years is good for our economy.

The Biden immigration proposal (here) does this by greatly increasing the flow of employment-based immigration, from 12% to 34% (with an overall increase from about 1.1 million to 1.5 million a year).

The Migration Policy Institute shows that employment based immigration is crippled by several severe problems. First, the 140,000 or so cap on employment based green cards (the source of the 12% figure) produces much fewer workers, because the 140,000 figure includes spouses and children. In fact, only about 77,000 workers (7% of total immigration) is for workers who awarded green cards on the basis of their work.

There is a very skewed, huge backlog: “If everyone with an approved petition in the backlog for an employment-based green card as of November 2020 stayed in that line until a green card became available, Indian nationals would wait an impossible 223 years for a second-preference category (EB-2) green card, while workers from countries other than India and China would face no wait at all.”

And, there is an overburdened, high overhead temporary work visa system. “In fiscal year (FY) 2019, the State Department issued 644,000 multiyear visas to temporary workers and their spouses—nearly five times more than the number of employment-based green cards available each year. Nearly half of those visas went to H-1B workers and their dependents, a growing number of whom stay in the country past the normally allowed six years while waiting in line for green cards.”

The severe constraints on legal employment immigration and temporary work visas encourages persons to come to work illegally, primary through visa over-stays (less so border crossings).

The Biden proposal, and even the “Dignity” proposal of Republican congress members (here), contemplate the historic legal overhaul leading to higher numbers of immigrants on the basis of employment.

Improving judicial process at the border

I’ve mentioned how dysfunction in the judicial system is at the core of the Mexican border program. In October 2020 there were 1.3 million cases with a average time to trial of 900 days.

In late April a bipartisan group submitted legislation aimed at improving the judicial process. The legislation is here. The sponsors wrote the “The Bipartisan Border Solutions Act….to respond to the surge in migrants coming across our southern border. The bill would improve both the Department of Homeland Security’s and the Department of Justice’s capacity to manage migration influxes and adjudicate asylum claims in a timely manner, protect unaccompanied migrant children, reduce impact on local communities, ensure migrants are treated fairly and humanely, and ultimately deter those who do not have realistic asylum claims from placing themselves in danger by making the treacherous journey to our southern border.”

The bill has been endorsed by the U.S. Chamber of Commerce, National Immigration Forum, National Border Patrol Council, American Business Immigration Coalition, Texas Association of Business, New American Economy, Americans for Prosperity and The LIBRE Initiative.