An immigration reform deal that could actually pass

Democrats blame Republicans for the fact that Congress has not passed a major immigration reform bill since the Immigration Reform and Control Act of 1986 — 37 years ago.

While Republicans have opposed the legalization programs Democrats have tried to establish, that doesn’t mean that every Republican is opposed to legalization. In fact, according to the Pew Research Center, 37 percent of Republicans view establishing a legalization program for most of America’s undocumented immigrants as an important goal.

Democrats aren’t free from blame. They could have passed a bill with a legalization program without a single GOP vote when Obama was president: From January 2009 to January 2011, they held a large majority in the House of Representatives, and until Scott Brown’s special election in 2010, they had enough votes in the Senate to stop a Republican filibuster. Even then, they needed only one Republican vote.

They chose not to do it. 

Also, Democrats could have tried harder to get Republican cooperation. They have proposed pairing legalization with border security measures that would assist in detecting and apprehending illegal crossers. But the border can’t be secured by apprehending illegal crossers if they are going to be released into the country. The Biden administration has been particularly bad in this respect, releasing more than an estimated 2 million undocumented immigrants into the country.

Democrats have done little, if anything, to make legalization more acceptable to Republicans.

However, I think such a deal is possible.

First, propose a legalization program that is based on America’s employment needs instead of on the needs of immigrants who are living here in violation of our laws.

The U.S. Chamber of Commerce says that America is experiencing a major labor shortage. Workers are needed for durable goods manufacturing, wholesale and retail trade, financial activities, professional and business services, and the leisure and hospitality industry. Unfilled jobs in these industries range from 35 percent to 60 percent. The American Immigration Counsel says that we need more immigrants to meet our labor demands.

If the legalization programs Democrats have advocated were to meet those needs, it would be mere happenstance. Migrants who come here illegally have their own reasons for coming. No one knows what percentage of them are qualified for jobs in the industries that are experiencing labor shortages. An employment-based legalization program could be limited to undocumented immigrants in the U.S. who can meet those needs.

Establish a special employment-based visa program for undocumented immigrants who demonstrate eligibility for the nonimmigrant employment visa needed to work in one of the industries experiencing a labor shortage, and grant them temporary lawful status for the duration of their employment. Stipulate that these visas will not reduce the availability of visas in the regular visa allocation system.

Include an opportunity to apply for lawful permanent resident status after some specified period of time. To make this more acceptable to Republicans, require that applicants establish that adjustment of status is merited as a matter of discretion. U.S. Citizenship and Immigration Services (USCIS) routinely requires applicants for adjustment of status to establish eligibility and that they merit a favorable exercise of discretion.

Establish a merit-based point system to provide an objective basis for making the discretionary determination. The United Kingdom, New Zealand, Canada and Australia all have point systems. For instance, people who want to immigrate to Canada are evaluated under Canada’s 1200-point Comprehensive Ranking System. The highest-ranking candidates receive an Invitation to Apply for Canadian residency. Canada grants points on the basis of factors such as age, level of education, Canadian work experience, family ties to Canada, post-secondary education in Canada, and proficiency in the languages spoken in Canada.

I am not the first to suggest a point system for the United States. Sen. Charles Schumer (D-N.Y.), now the Senate majority leader, proposed a merit-based and points immigrant admissions system in his Border Security, Economic Opportunity, and Immigration Modernization Act. The bill was passed in the Senate in 2013, but not in the House. His bill was based on a two-tier system that accorded points for specified factors, such as education, employment, entrepreneurship, high demand occupation, English language, age, country of origin and family relationships.

Second, limit the size of the program to the number of foreign workers needed to achieve the program’s objective.

The American Dream and Promise Act of 2021 is an example of a legalization program that was too large to be acceptable to Republicans in Congress. Instead of limiting the bill to a DREAM Act, it included three other legalization programs. That “get as much as you can” legislative approach hasn’t worked.

The Migration Policy Institute estimated that this bill could have made up to 4,438,000 undocumented immigrants eligible for permanent residence: The DREAMers; individuals eligible for Temporary Protected Status or Deferred Enforced Departure; and Legal Dreamers (migrants brought here legally as children who are aging out of their lawful status). That estimate does not include the family members participants would bring into the country when they acquire permanent resident status or citizenship.

This bill was the Democrats’ 12th failure to pass a DREAM Act. 

A legalization program based directly on America’s labor needs such as I have outlined above wouldn’t provide lawful status for all of the undocumented immigrants the Democrats want to legalize, but it might attract enough Republican support to pass a major legalization bill for the first time in almost four decades.

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 him at nolanhillop-eds.blogspot.com.