The House Republican "Standards for Immigration Reform," released late last week, have been widely touted as an important breakthrough on the road to immigration reform, and this may well prove to be the case. If so, they deserve careful parsing, rather than wishful thinking. The standards start from the premise that the U.S. immigration system cannot be fixed "with a single, massive piece of legislation few have read and even fewer understand," a reference to the Senate's Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744). Nonetheless, they draw heavily from S. 744 and cover the three pillars of comprehensive immigration reform (CIR), robust enforcement, reform of the legal immigration system and legalization of the unauthorized.
The standards begin inauspiciously, with the patently false claim that U.S. immigration laws "are not being enforced." To the contrary, nearly two million non-citizens have been deported over the last five years, illegal entries are at one-fifth the level of historic highs, and the U.S. enforcement apparatus -- measured by its operational outcomes, coordinated strategies, resources and broad legal authorities -- has never been stronger. Of course, more can and should be done. Ports-of-entry, for example, represent a particular source of vulnerability to exploitation by transnational criminals and terrorists. Sufficiently resourced ports-of-entry would enhance border security and represent a boon to the U.S. economy.
The standards make enforcement the centerpiece of immigration reform, and would require unnamed enforcement triggers to be met prior to implementation of other reforms. In fact, "border security" has been the one shared goal in the U.S. immigration debate over the last several administrations. Yet security should not be conflated with symbolic and unattainable goals, like the prevention of all illegal entries, the standard established by the Secure Fence Act of 2006. Secure borders would be characterized by far fewer illegal entries, higher apprehension rates and a more balanced approach to enforcement that encompassed ports-of-entry, the work-site and visa overstays.
However, security would also be measured by expanded trade, the safety and prosperity of border communities, and the protection of vulnerable migrants, particularly those fleeing for their lives. Progress in securing U.S. borders, defined in this way, should be a high priority of immigration reform. However, since reform of the legal immigration system and a legalization program would contribute to border security, the House Republican's enforcement triggers could very well be self-defeating.
The House Republicans make the obvious point that the U.S. immigration system exists "to promote and further America's national interests," but add that this "is not the case today." U.S. immigration laws unify families, admit necessary workers and protect the vulnerable. They meet these goals imperfectly and need to be broadly reformed, but it is a substantial overstatement to claim that current laws do not promote the nation's interest. The standards also claim that the U.S. immigration system has long "emphasized extended family members and pure luck over employment-based immigration." In fact, more than one-half of lawful permanent residents (LPRs) admitted to the United States are the "immediate relatives" of U.S. citizens and the nuclear family members of LPRs. The main priority of U.S. immigration law has long been close family members, and family unity should remain a pillar of the law. That said, the standards sensibly call for additional visas for high-skilled and exceptional workers and a temporary worker program (particularly for agricultural workers) that will allow for "realistic, enforceable, usable, legal paths for entry." CIR proponents support similar reforms.
The final section of the standards is oddly titled, "Individuals Living Outside the Rule of Law." Of course, the unauthorized do not live outside the law itself. They are subject to the law, but do not enjoy its full protections. Moreover, the driving vision behind (mostly) Republican attrition-through-enforcement and zero-tolerance enforcement strategies has been to marginalize and criminalize the unauthorized in ways that dishonor the rule of law. If they are living "outside the rule of law," it is not by choice and speaks, in part, to the rule-of-law deficiencies in the current immigration system.
The standards support a path to legal residence and citizenship for DREAMers. However, they maintain that it would be unfair to those who have "played by the rules" and "harmful to promoting the rule of law" to provide a "special path" to citizenship for the unauthorized. This statement ignores the substantial percentage of U.S. unauthorized immigrants who have "played by the rules" and been approved for family-based visa petitions, but languish in (often) multi-year backlogs. It would serve the rule of law to expedite their visas, as CIR would do.
House Republicans support allowing the unauthorized to "live legally and without fear" if they meet certain conditions, including payment of a fine and back taxes, English language and civics proficiency, background checks and a willingness to admit culpability. These conditions mostly track CIR's requirements for earned legalization. The standards seem to contemplate a quasi-legal status, with work authorization, protection from deportation and the ability to travel abroad, akin to the "deferred action" status available through the DACA program to DREAMers, but (unlike DACA) legislatively grounded and not time-limited. While in this quasi-status, beneficiaries would presumably be allowed to pursue "non-special" paths to LPR status, like family- or employment-based visas. If so, high numbers would ultimately be able to secure LPR status and, thereafter, citizenship through the normal channels. A study of persons granted LPR status in 2003 found that nearly 40 percent had previously been without status. Under the standards, however, many legalization beneficiaries would never be able to become citizens and, as with CIR, a substantial percentage of the unauthorized would not be able to legalize at all.
The House Republican standards support many of the provisions in CIR bills and, thus, provide cause for optimism for the proponents of broad immigration reform. However, they also rest on false premises, may lead to self-defeating enforcement triggers, could eviscerate the family-based immigration system, and might relegate substantial percentages of the unauthorized to a permanent second-class status. They provide substantial grounds to reach a common-sense agreement on immigration reform, substantial flexibility to scuttle one and substantial support for a bad agreement. They may sow the seeds of reform, but do not (in themselves) offer sufficient guidelines for reform.
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