Democrats suffered a setback last month when the Senate parliamentarian rejected their plans to legalize millions of undocumented immigrants through reconciliation. She appears poised to reject their latest proposal too. Now, the question is whether party lawmakers will jettison legalization and push for what remaining immigration reforms the parliamentarian will allow — or give up the immigration reform effort altogether.
Some Democratic leaders have threatened to do the latter, even though the parliamentarian has left the door open for essential reforms to the legal immigration system. This all-or-nothing approach would be a mistake, forfeiting reforms that would improve the lives of millions of people trying to immigrate legally.
Democrats’ current opportunity for legal immigration reform lies in three provisions from the House version of the reconciliation package. The first would “recapture” more than 1 million green cards already authorized by Congress that have gone unused since 1992 because of administrative errors. The second would allow immigrants with temporary visas who have waited in line for more than two years for their (already approved) green card to pay a fee for a cap exemption. The third would ensure that U.S. Citizenship and Immigration Services has the resources to process immigrant applications quickly.
Together, these provisions would constitute the biggest update to our dysfunctional immigration system since the Immigration Act of 1990. Over the next decade, the provisions would generate at least $3 trillion to the U.S. GDP as people trapped in the backlog would have a chance to come to the country and work.
Beyond the economic implications, the recapture provision alone would allow more than half a million people separated from their families to reunite with their loved ones. Children raised in the U.S. who are at risk of “aging out” of status would be protected from deportation to countries they’ve never known; spouses would be guaranteed work authorization; and immigrants would be freed from rules tying them to their employers.
These momentous provisions have a sizable chance at passing parliamentary muster. That is because, unlike provisions legalizing undocumented immigrants, they wouldn’t change who is eligible for lawful permanent residence. Instead, they would only affect the timing of when status is granted to people who have already been approved. It’s no guarantee, but the distinction seems to put them on the safe side of the parliamentarian’s last two rulings.
In February, Sen. Bob Menendez, D-N.J., promised that “if there are moving vehicles where parts of [immigration reform] can happen, I think all of us would certainly say we want to … attach significant elements to a moving vehicle.” With reconciliation, Democrats have their vehicle.
But after the most recent ruling, the senator had a different message, indicating that all reforms to immigration must wait until there is relief for undocumented immigrants. The most significant risk to reforming legal immigration, therefore, appears not to be the parliamentarian. Rather, it is Democrats picking up their marbles and going home. By stubbornly sticking to an inflexible approach, they would upend the lives of many of the people they are ostensibly trying to help.
This approach to immigration reform is hardly new, as Democrats have gravitated toward a comprehensive approach to immigration since 2001. Their reasoning is that tying together provisions affecting undocumented and legal immigrants would create a broad coalition that could result in successful immigration reform.
This strategy has been an abject failure. Its prospects dimmed after the failure of immigration reform in 2013 and with nativism having taken an even firmer hold on the Republican Party. Now, for the first time since President Barack Obama’s first term, Democrats control the presidency and both chambers of Congress. If they don’t take what they can get now, when will they get another opportunity?
Betting everything on comprehensive reform has been tried repeatedly to no avail, and immigrants have suffered the consequences. Maintaining the unwavering demand for legalization as a prerequisite for any unrelated immigration reforms will play out as it always has: continually growing immigrant backlogs, separated families, talent fleeing to other countries and the slow-but-steady erosion of our immigrant-driven technological preeminence. Legal immigration is too consequential to be sacrificed for a distant chance of that ever-elusive dream of passing a comprehensive bill through regular order.
It would be a profound betrayal to legal immigrants if they can’t be helped because Democrats cannot get everything they want. There is more to immigration reform than legalizing the undocumented. If Democrats squander this rare opportunity to pass the most significant immigration reform in 30 years, it’s hard to see how they’re much of an improvement on immigration over President Donald Trump.
Jeremy L. Neufeld is an immigration policy analyst at the Niskanen Center, a think tank that works to promote an open society and supports reducing barriers to immigration.