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October 2021, Volume 27, Number 4

Immigration Reform, DACA

Prospects for immigration reform dimmed in Fall 2021. President Biden’s approval rating fell after the chaotic withdrawal from Afghanistan, raising the specter of Biden’s presidency developing “Carter syndrome,” a nice person who lacks the competence to be president.

The Senate Parliamentarian in September 2021 twice ruled that the legalization of unauthorized foreigners could not be included in the $3.5 trillion human infrastructure Build Back Better bill because legalization is “a policy change that substantially outweighs the budgetary impact of that change.” Earlier in 2021, the Senate Parliamentarian ruled that an increase in the federal minimum wage could not be included in a reconciliation bill.

Democrats may try to update the registry date, which currently allows foreigners who have been in the US since 1972 to apply for immigrant status.

The four-part Build Back Better human infrastructure bill includes funds for education from pre-K through college, spending to reduce greenhouse gas emissions, aid for housing and jobs, and expanded health care benefits for poor US residents.

Senate Republicans oppose the Build Back Better reconciliation bill, which means that losing even one Democratic senator would block its passage. One provision of the BBB would modify the Additional Child Tax Credit that provides tax refunds or payments to US earners with legal US children regardless of the legal status of the parent. Under the BBB, the Child Tax Credit would be modified to remove the requirement that the parent have reportable US earnings and the payment for each child would increase, so that unauthorized parents with US-born children could receive up to $5,000 per family.

The Senate approved a $1 billion “hard” infrastructure bill in August 2021 aimed at upgrading roads and bridges with the support of some Republicans.

The BBB and hard infrastructure bills would be paid for in part by raising taxes on corporations and richer residents. Most Democrats want to “tax the rich,” but there are enough moderates who do not want to raise taxes or add to the federal debt to require negotiations on how to shrink the cost of the BBB package of new initiatives. One option to limit the cost of the new BBB benefits is to means test them by restricting them to low-income residents, the needs-based with means-testing guardrails strategy.

The House approved bills in March 2021 to legalize two million unauthorized foreigners who came to the US as children (700,000) and farm workers (900,000) as well as some foreigners who have Temporary Protected Status (300,000). Advocates wanted to add those who were deemed essential workers during Covid in the BBB bill, bringing the total number of unauthorized foreigners who could be legalized to six to eight million.

Admissionists who embrace legalization emphasize the economic benefits of legalization, while restrictionists highlight the continued influx of Central American and other unauthorized foreigners over the Mexico-US border to assert that there can be no legalization until the border is secure. President Biden seems sensitive to the skepticism of blue-collar workers in midwestern states toward freer trade and more immigration, which could mean lukewarm support for immigration reform.

DACA. A federal judge in July 2021 ruled that the Deferred Action for Childhood Arrivals or DACA program was unlawful, but allowed the 600,000 unauthorized foreigners with DACA status to retain and renew their status. DACA status provides work permits and driving privileges in most states.

DHS in September 2021 announced that it would begin formal rulemaking to re-create the DACA program. DACA allows unauthorized foreigners who arrived in the US before 2007 and were under age 16 to apply for two-year legal residency permits after paying a $495 fee, or $85 if the applicant does not want a work permit. Some 150,000 foreigners who once had DACA status have become immigrants. Democrats introduced a separate America’s Children Act in September 2021 to put current DACA recipients on a path to US citizenship.

The House Judiciary Committee in September 2021 considered proposals to legalize unauthorized essential workers who have been in the US since January 1, 2021 and had earnings from jobs in DHS-designated essential occupations, including farm workers, healthcare workers, first responders, food-processing and -service workers, domestic workers, home care workers, janitors and deliverers. Unlike the FWMA, the House legalization plan would not change the H-2A program.

Outlook. Congress has tried to enact legalization for unauthorized foreigners brought to the US children and for unauthorized farm workers for the past two decades. Initially, immigrant admissionists did not want stand-alone legalization for DACA-eligible foreigners and farm workers, fearing that legalizing them would reduce support for comprehensive immigration reform that would allow most unauthorized foreigners to become immigrants and US citizens.

Most advocates now favor piece-meal immigration reform, and hope that Congress approves bills to legalize DACA-eligible foreigners and farm workers in 2021.

The Senate held a hearing in July 2021 on the Farm Workforce Modernization Act (FWMA) that featured testimony supporting enactment of the FWMA, which was approved by the House on a 247-174 vote in March 2021. The FWMA would allow unauthorized foreigners to become legal immigrants by continuing to do farm work for four to eight years, streamline the H-2A program to allow H-2A workers to be employed in year-round jobs, and require farm employers to use E-Verify to check the legal status of new hires.

USDA Secretary Tom Vilsack testified that “immigrant labor comes in and does the difficult, challenging work that the rest of us are not interested in doing,” so the US should legalize unauthorized farm workers and streamline the H-2A program. Farm employers urged the Senate to modify the FWMA by, for instance, removing the cap on the number of H-2A workers who can fill year-round farm jobs, an effort that is led by Senators Mike Crapo (R-ID) and Michael Bennet (D-CO).

Most farm organizations and most worker advocates support the FWMA, but the American Farm Bureau Federation and some farm worker groups oppose the FWMA, albeit for opposite reasons. The AFBF says that the FWMA would allow more workers to sue their employers, while worker advocates fear the expansion of the H-2A program will increase the number of vulnerable farm workers.

College-educated Americans increasingly vote for Democrats, while whites who did not graduate from college vote for Republicans, a reversal from voting patterns in 1960, when college-educated Americans favored Republicans and the less-educated favored Democrats. The tendency for Democrats to become more liberal and Republicans more conservative may persist, and polarization over a wide range of issues, from race, religion, war, environmentalism, guns, trade, immigration, sexuality, crime, and social welfare programs, may continue to make Democrats more liberal and Republicans more conservative.

Northern Triangle. The White House released a 14-page collaborative migration management strategy in July 2021 to deal with Central Americans seeking asylum in the US. Less than 20 percent of Central American applicants receive asylum, but the application and appeal process takes several years, during which asylum applicants may work legally and their children may attend K-12 schools.

The strategy to reduce migration from El Salvador, Guatemala, and Honduras has eight elements, some of which are in conflict. The expand-migration options include offering more legal pathways to the US by expanding guest worker programs. The reduce-migration elements include efforts to stabilize vulnerable populations at home, offer protection in the region, reintegrate returnees, secure borders, and counter smugglers advertising for clients.

The US offered to help Costa Rica to expand its temporary worker programs while ensuring that guest workers are protected by promoting ethical recruitment and combatting labor trafficking.

Item eight promises “efforts to significantly increase the number of Northern Triangle agricultural workers who receive an H-2A visa in FY22, paying particular attention to improving recruitment practices in the Northern Triangle and labor conditions in the United States.” The major mechanism to make Central American workers more attractive to US farm employers is to develop work-ready pools of residents who want to be H-2A workers and are screened by local labor ministries for health, skills and other factors to make it easier for US employers to hire them.

Many US employers are reluctant to hire from government work-ready pools.

Over 90 percent of H-2A visas, and over 70 percent of H-2B visas, go to Mexicans, who are often bussed from the US consulates in Mexico where they receive their visas to jobs in the US. Recruitment is typically via social networks, meaning that current workers recommend friends and relatives to their employers. Guatemala and Jamaica are the two countries after Mexico that receive the most H-2A and H-2B visas. It may take time to expand social network recruitment in Northern Triangle countries if employers do not trust work-ready pools created by governments.

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