‘Registry’ is a reasonable work-around to legalize undocumented aliens who’ve lived here many years

Democrats suffered a major blow when the Senate Parliamentarian, Elizabeth MacDonough, decided that they could not include immigration provisions in their $3.5 trillion budget reconciliation bill. According to MacDonough, the effect that the immigration provisions would have on the budget would be incidental to their overall policy effect.

The rejected provisions would have provided legalization for undocumented immigrants who were brought here illegally as children, often called “Dreamers;” undocumented immigrants with Temporary Protected Status; and undocumented essential workers. This would have made lawful status available to more than 8 million undocumented immigrants. 

Sen. Bob Menendez (D-N.J.) claims that there is another option, which is to narrow the immigration reform provisions such that Democrats can navigate it through the Senate’s Byzantine rules. He thinks this can be done with an update to the registry provision in the Immigration and Nationality Act (INA).

Registry is a process that permits undocumented immigrants to become lawful permanent residents (green card holders) on the basis of their long-standing presence in the country, regardless of their status or the way they entered the country.

I don’t think updating the registry provision will be acceptable to MacDonough either — It’s just another way to legalize undocumented immigrants.

But it might be possible to move a registry update through the regular legislative process. The registry process has been in place for nearly a century. It reflects our nation’s historical sense of fairness to allow undocumented immigrants who have lived in the country for a very long time an opportunity to obtain legal status, and it hasn’t been updated since 1986.

The provision 

The registry provision, which was established in 1929 by section 249 of the Immigration and Nationality Act (INA), permits undocumented aliens to establish a record of lawful admission for permanent residence if they are not inadmissible under section 212(a)(3)(E) (which bars those who participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing) or under section 212(a) insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of narcotic laws, or alien smuggling, and the applicant —

1. Entered the United States prior to Jan. 1, 1972;
2. Have had their residence in the United States continuously since then;
3. Have good moral character;
4. Are not ineligible for citizenship; and
5. Are not deportable under section 237(a)(4)(B) [Terrorist activities].

History of the provision

In 1911, Congress funded the Dillingham Commission to research the causes and impact of immigration to build support for significant restrictions on European immigration. The commission tried to “scientifically” establish that eastern and southern Europeans were not assimilating, and that they were degrading the quality of U.S. society and civilization.

Six years later, Congress enacted the Immigration Act of 1917, which created a “barred zone” extending from the Middle East to Southeast Asia from which no persons were allowed to enter the United States. Its main restriction, however, was a literacy test which was intended to reduce European immigration.

In this climate, numerous limitations were put into place, which led to the establishment of the first quota restrictions in 1921. The quota restrictions were designed to control immigration in order to change America’s racial composition. Many undocumented immigrants who had established ties within their communities were caught within these restrictions.

The registry provision was established in 1929, to help these people. It converted their last established admission date into a “record of lawful admission” prior to the registry date of June 3, 1921. This gave them eight or more years of lawful residence to satisfy the residency requirement for naturalization.

In effect, the registry provision created a statute of limitations on removal for a narrowly defined group.

The main justification was that these immigrants were already interwoven into our communities. Many of them had created families in the United States.

This is just as true now as it was then.

Choosing a new registration date

Generally, registry updates have changed the cutoff date to approximately 15 years prior to the date of the new bill’s passage. Under this approach, a 2021 registry update would extend the cutoff date to 2006. But this would make registry available to approximately 6.2 million immigrants, which would be 51 percent of the undocumented immigrant population in the United States.

I don’t think the Democrats can get Republican cooperation for a legalization program that large without major concessions on border security and interior enforcement of our immigration laws.

This is the “three-legged stool” approach that was the basis for the last bipartisan legalization program, which was established by the Immigration Reform and Control Act of 1986 (IRCA). The first leg is an increase in border security; the second is more interior enforcement, and the third is the legalization program. 

In fact, section 203 of IRCA also extended the registry date from June 30, 1948, to its current date, which is Jan. 1, 1972.

IRCA is an example of how much can be accomplished with bipartisan cooperation, but the cooperation did not come easily. 

Republican President Ronald Reagan observed at the signing ceremony that IRCA was —

“The product of one of the longest and most difficult legislative undertakings of recent memory. It has truly been a bipartisan effort, with this administration and the allies of immigration reform in the Congress, of both parties, working together to accomplish these critically important reforms.”

Fortunately, there is a lot of room for compromise on a registry provision update. The current date limits registry to undocumented immigrants who have been here for 49 years. The Republicans should be willing to make that date more reasonable without demanding extreme border security or interior enforcement measures.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.