President Biden and Democrats in Congress unveiled the U.S. Citizenship Act last week. The 353-page bill is more modest than the sweeping 1,000-page comprehensive bill that passed the Senate in 2013, but it nonetheless proposes some significant changes in the operation of the U.S. legal system. Given that Democrats never bothered to try to get their support, even moderate Republicans universally denounced the effort as a partisan messaging bill, and so it has almost no chance of becoming law.
But the fact is that Congress has already given President Biden authorities to carry out much of the agenda on his own without the bill becoming law. The Supreme Court has unfortunately recognized that Congress has the constitutional authority to delegate to the president broad powers on immigration, and it has. Presidents (especially but certainly not exclusively the last one) have usually used their powers to restrict immigration and interpret the laws restrictively. But this is entirely a policy choice.
As I and my coauthors explained last year in Deregulating Immigration: A Blueprint for Agency Action, President Biden has the ability not just to reverse Trump’s restrictive regulations, but many other restrictions that predate him as well. While it is regrettable that Congress passes ambiguous laws authorizing enormous executive discretion, the goal (as attorney Angelo Paparelli and I argue) should be to interpret these statutes in favor of the liberty of immigrants and the Americans with whom they associate, not as restrictively as possible.
Related Study
Deregulating Legal Immigration: A Blueprint for Agency Action
President Trump went to unprecedented lengths to restrict legal immigration in his one term—but the system was overly burdensome and expensive long before him. President‐elect Joe Biden will have the opportunity to reverse these actions and deregulate this system. Here is a compendium of 30 proposals by 15 authors—including several of America’s leading immigration law experts—to help the Biden administration operate the immigration system as openly and efficiently as the law allows.
Certainly, a successor could eventually reverse many of the actions that Biden takes, but as President Trump’s term in office showed, that is much easier said than done, and many are simply irreversible for the immigrants who already benefited from them. Certain immigration documents cannot simply be revoked by another administration on a whim. Even if they could be reversed, these actions would have great benefit in the meantime.
President Biden is uniquely positioned to improve the immigration system. While he should work on bipartisan legislation to update the laws and make them unambiguously open to immigration, he should not make the mistake that President Obama made by spending the majority of his term acting as if he is required to adopt the worst possible interpretations and worst applications of the current laws.
Legalization of immigrants
Biden has two different authorities from Congress that he could use to grant legal status and work authorization to almost all noncriminal illegal immigrants in the United States right now. The first is Temporary Protected Status (TPS). It is a status that Congress has told the administration to grant to those who cannot be humanely returned to their home countries due to a crisis there. TPS holders have work permits so they can be lawfully employed in the United States. The statute specifically mentions a “pandemic” as a crisis that would be the basis for TPS. Given the state of the world right now, Biden can grant TPS to whoever he wants.
The second option would be to grant illegal immigrants “parole-in-place.” Parole-in-place relies on the authority granted by Congress to the Department of Homeland Security (DHS) to “parole” or waive the normal legal barriers to entering. Parole-in-place refers to granting “parole” to someone who has already entered. Last year, Congress explicitly recognized the use of parole-in-place on behalf of broad categories of illegal immigrants as a valid exercise of the parole authority. TPS and parole are legally unassailable authorities, well-grounded in statute, and have few meaningful constraints on their use. Prior presidents have already used them on behalf of millions of immigrants over the last several decades without any successful legal challenges.
Path to citizenship for some immigrants
Biden cannot create a new path to citizenship for all illegal immigrants, but he can allow those who—if not for their illegal status—already meet the criteria for green cards to receive those green cards, which would open up a pathway to citizenship. He can do this—as his vice president suggested—by granting these immigrants “parole-in-place" (described above). Biden could use this authority to grant parole to those immigrants who can through marriage, employer sponsorship, or family connections receive green cards, which would open up the current path to citizenship. Again, this authority is well-tested, and many illegal immigrants have already received green cards through this mechanism.
Let family members wait for green cards inside the United States
The bill expands the V visa eligibility criteria to include all family members of U.S. citizens and legal permanent residents who are waiting for green cards abroad but cannot receive one due to the immigration caps. About 3.8 million family-sponsored immigrants were waiting abroad as of November 2020. Again, Biden can parole these immigrants into the country, as attorney Cyrus Mehta explained in our deregulating immigration paper last year. In fact, the government has already been using exactly this for Haitians, Cubans, and certain Filipino veterans of World War II. There is no reason not to make such a program available to all nationalities.
Parole Central Americans in the family-sponsored backlog
This provision requires Biden to use parole directly on behalf of certain Central Americans in the family-sponsored backlog. Not only is this redundant to the V visa expansion, there’s no reason for Biden to wait for this bill to pass to do this since parole can be made available at the discretion of the administration at any time. Another provision requires him to reinstate the Central American Minors program, which granted parole to children with U.S. relatives in legal statuses in this country.
Establish refugee processing centers in Central America
The bill requires the president to create refugee processing centers in Central America and expand refugee processing there. The Refugee Act of 1980 gave the president total authority to set the refugee limit and establish the criteria for selecting refugees for resettlement. President Biden has already used that authority to raise the refugee ceiling for this year. Trump had allotted 1,500 slots for Central Americans, while Biden will give 5,000 slots to all Latin America and the Caribbean—nowhere close to the amount of resettlement needed. 5,000 would not cover the demand for a single week of the year.
Recapture unused employment-based green card cap numbers
The bill requires the administration to recapture the roughly 226,000 employment-based green card cap numbers that were not used over the last 30 years, mainly due to bureaucratic delays. As former-DHS official Amy Nice explained in our deregulating immigration paper last year, the administration already has the authority to do this when it failed to implement the laws as Congress intended. She notes that in the 1970s, the State Department did recapture green card numbers that it had lost.
Exempt spouses and minor children of green cards for family and employment-based immigrants and diversity lottery winners
The legislation would exempt spouses and minor children of new legal immigrants from the green card caps. As attorney Ira Kurzban explained in our deregulating immigration paper, nothing in the law requires the administration to count immediate family against the caps for family, employment, and diversity categories. By freeing up these numbers, exempting derivatives would roughly double the employment-based numbers and increase the family-based cap by about 50 percent. He also notes that there is precedent for this: the State Department also changed its green card counting policy for Cuban Adjustment Act cases after several years of counting them against the caps in the 1960s and 1970s.
Increase requirements for immigration bans
The bill increases the standards for a president to impose an immigration ban—banning nationality or religious-based bans and requiring that any ban be based on specific credible facts supporting a compelling governmental interest in a ban—and only if the ban is narrowly tailored using the least restrictive means to achieve the interest. It also requires consultation with Congress within 48 hours about the ban. President Biden currently has the ability to set whatever standards he wants for bans, so he could increase the requirements on his own, but he has instead chosen to continue blanket bans on almost all legal immigration and temporary workers to “protect the labor market” using the same weak protectionist justifications as his predecessor. There is nothing legally stopping President Biden from removing Trump’s immigration bans.
Authorize spouses and children of H-1B workers to work
The bill explicitly requires spouses and minor children of H-1B skilled workers to be given permission to work in the United States. But as I explained in our deregulating immigration paper in November, the administration already has the authority to authorize employment for dependents of H-1B workers (and any other temporary workers). In fact, DHS already issues employment authorization documents to certain spouses of H-1B workers already in the process of becoming permanent residents. There is no reason to limit the use of this authority when so much economic value is being lost by keeping them unemployed.
Prevent children of H-1B workers from losing status
The bill allows children of H-1B workers on H-4 visas to maintain their H-4 status after their 21st birthday. DHS can arguably already do this since the statute only requires the person who receives an H-4 visa to be under the age of 21 at the time that they “accompany or follow to join” the H-1B worker. But even if this is not the case, the Biden administration could simply parole H-4 children back into the country if they age out of status and must leave the country, as attorney William Stock explains in our deregulating immigration piece.
Other provisions of the U.S. Citizenship Act that Biden could implement now:
- Expand use of alternatives to detention for detained immigrants: These are already being used on a smaller scale.
- Hire 165 more immigration judges to process immigration court cases: Trump hired even more than this.
- Increase hiring standards and training for immigration judges
- Implement electronic filing at immigration courts: Other agencies already permit this.
- Access to legal orientation programs for detained immigrants
- Restrict use of force by all immigration agents
- Investigate and prosecute human smugglers
None of this is to say that the president having such powers is a good thing, it most certainly is not. As Alex Nowrasteh and I have written, immigration power by executive decree is a terrible institutional situation that Congress should remedy. The president should not have the unilateral power to restrict immigration. But the fact also remains that President Biden has well-recognized legal authority to reverse these restrictions and implement the majority of the U.S. Citizenship Act’s major provisions. Yet as I detail in Reason, so far he has not taken hardly any measures to use them. He should not wait. President Trump did not wait, and he substantially worsened the U.S. immigration system. Biden has an opportunity to reverse those decisions and lawfully improve immigration policy.
Democrats already know that the U.S. Citizenship Act is not going to become law, and he should learn a lesson from President Obama about attempting late-term executive actions like DACA that are rushed, failed to get done, or get caught up in court actions without time to correct any procedural defects. President Biden should act now to deregulate as much of the legal immigration system as possible while working out a bipartisan compromise to get the rest done.