June 14, 2018 7:22PM

Some Good—Mixed with Much Bad—in GOP Immigration Deal

House Republicans may have worked out a compromise bill between House GOP leadership, some conservatives, and some moderate Republicans that will come up for a vote next week. The compromise dooms an effort by moderates to force a vote on bipartisan legislation that had the most likely chance of passing the House and Senate (though only a slim chance of a presidential signature). The draft bill has leaked, and like any compromise, it is a real mixed 293-page bag. But on net, the bill would make the immigration system worse than it is right now.

Some Very Positive Elements

Indefinitely renewable status: On the positive side, the bill provides a legal status for DACA-eligible people that is indefinitely renewable under the same criteria as DACA itself (i.e. school attendance or high school graduation). This is actually more inclusive than the Dream Act in a way, which offers only a temporary status that imposes additional requirements to be met in order to receive permanent residency. That said, as explained below, this bill restricts the application pool in other ways to result in fewer applicants than other bills including the Dream Act.   

Pathway to citizenship for DACA population & legal immigrant Dreamers: Even better, the new legislation would provide a pathway to citizenship for some DACA recipients and some legal immigrant Dreamers who meet additional education and skill qualifications on top of DACA’s requirements (i.e. high school degree). No other piece of legislation so far has provided a pathway to citizenship that doesn’t discriminate against some legal immigrants. For some time, we have been nearly alone in advocating allowing legal immigrants in temporary status, such as children of H-1Bs, to apply for any pathway to permanent residency and citizenship. The fiscal and economic benefits of keeping these young immigrants—almost entirely highly skilled—in the United States are enormous. Unfortunately, as noted below, this pathway will help very few legal immigrant Dreamers.

Repeal of per-country limits: The draft would include provisions that would repeal the discriminatory per-country limits on employer-sponsored immigrants, while raising the limits for family-sponsored immigrants. The per-country limits prevent any single nationality from receiving more than 7 percent of the total number of green cards in any given year. The result is massive wait times for more populous countries, and no wait times for others. On the employer side, for example, Indian immigrants with advanced degrees who apply right now may never see their green cards in this lifetime. We have again led the way in championing this reform.

More employer-sponsored immigration: Employer-sponsored immigration will eventually get a boost of approximately 88,400 green cards. There would be an immediate increase of 65,000 with a subsequent increase of 23,400 in 2039. Increasing high skilled immigration is unequivocally positive for the U.S. economy and labor force. My colleague Alex Nowrasteh and I have advocated this reform for many years because it has massive fiscal benefits and will promote innovation and economic growth.

Many Bad Elements

Legal immigration cuts: The biggest problem with the GOP compromise is that it would slash legal immigration significantly. It would repeal provisions of immigration law that annually provide green cards to siblings (65,000) and married children of U.S. citizens (23,400). The cut would be partially offset by an annual increase of 65,000 on the employer-sponsored side, but the 23,400 green cards for married children would disappear. In addition, it would end the diversity visa lottery entirely, which makes 55,000 green cards available to nationals of countries that send few immigrants to the United States if they have at least high school degree.

The bill rebrands this banning of legal immigrants as a way to provide permanent status for Dreamers, reallocating the diversity visas (55,000) and the married children visas (23,400) to that purpose (as if God created only a finite number of green cards). But if the Dreamers don’t use the 1.6 million reallocated green cards over 20 years, the draft legislation would just delete the extras, which gives the lie to the claim that the reallocation is necessary to keep green cards at the same sacred level that we’ve had for almost three decades. After, 78,400 green cards would just be flushed forever.*

The bill would make it much more difficult to receive asylum in the United States (below), likely halving the number of asylum seekers (from about 26,000 to about 13,000). All told, the GOP compromise would reduce legal immigration by about 1.8 million over two decades. Even if you count the Dreamers, it would still be a net reduction of likely about a million. This is about 9.1 percent cut to legal immigration. If you count the Dreamers, it would be about a 5 percent cut relative to what 2019 will be.

It makes no sense to cut legal immigration at a time when U.S. population growth is at the lowest level since the Great Depression, and the fertility rate has plunged to its lowest level ever recorded. GDP growth depends heavily on a growing population, and shrinking the labor force would shrink the economy proportionately. Family-sponsored and diversity immigrants are better educated than Americans, compounding the economic damage. Moreover, unlike employer-sponsored immigrants who are almost always in the United States working already when they receive permanent residency, family and diversity immigrants are new arrivals from abroad, meaning that there are much more severe implications for population growth as a result of keeping them out. Family-sponsored immigrants receiving permanent residency add to the existing population, while employer-sponsored immigrants receiving permanent residency are already part of it.

The United States is already one of the least generous countries in the world on legal immigration, and this bill would make America even less competitive than it already is.

Canceling legal immigrant applications: The reductions in legal immigration are even more perverse because they come at the expense of legal immigrants who have waited in line up to two decades for the ability to immigrate legally. The bill would terminate more than 3 million applications for family-sponsored visas. Implicit in the GOP compromise is that it would cancel these people’s applications in order to legalize legal and illegal immigrant Dreamers. The party that has routinely rejected “amnesty” on the grounds that it would be “unfair” to legal immigrants is planning to take away their ability to immigrate in order to give amnesty to illegal immigrants. This outcome is massively unjust, and it will inevitably result in more illegal immigration. Not only would those who now have no way to enter legally likely consider alternative avenues, but why would anyone else wait in the lines that remain if the U.S. government could simply throw up a “Closed” sign at any time years later?

Making asylum impossible for border crossers: Under a 1996 law, asylum seekers who come to the border must first prove that they have a “credible” fear of persecution in order to then apply for asylum. Asylum officers must assess where there is a “significant possibility” that an immigration judge will approve their claim. Rather than simply presenting a claim that is internally consistent, meets the requirements for asylum, and is otherwise credible, the compromise bill will now require them to prove their statements are “more probable than not” to be true.

The standard will effectively require asylum seekers to come with proof to the border, yet as I note in this longer article on the topic, we “simply cannot expect that asylum seekers who may have had to sneak out of their country of origin in the dead of night or swim across rivers to escape persecution will have sufficient evidence the moment they arrive in the United States to meet this burden.” As the Tahiri Justice Center, which serves women fleeing violence, has stated, the "heightened screening standard will, as intended, wrongfully prevent women and girls fleeing horrific violence from even presenting their cases in court.” Any provision that would have sent Jews—who often lacked documents—back to the Holocaust simply cannot be used as the standard for America today.

Very narrow pathway to citizenship: The pathway to permanent residency would apply to a very small share of immigrant Dreamers. In order to get the initial temporary status valid for six years, it would require applicants to be under the age of 37, and to have been physically present in the country 11 years ago (12 years by the time the plan is implemented). It would restrict the DACA population to those who have an income of at least 125 percent of the poverty line unless they were in school or taking care of a young child. It would exclude Dreamers who have ignored removal orders or skipped court hearings, even if they have lived in the United States for more than a decade. It would also require the payment of a fine of $1,000 for use in border security (which would not come close to covering the cost of the $23.4 billion in border security and wall funding provided in the bill).

In order to obtain permanent residency (a green card), Dreamers would have to meet a points threshold based on English language ability, education, work, and military service. In all likelihood, this bill would grant permanent residency to at most the same number of people who received DACA (700,000), excluding roughly 80 percent of all unauthorized immigrant Dreamers who entered the United States as children before 2017 (based on Migration Policy Institute’s estimate of that population).

The Wasteful Border Wall: The bill would spend $23.4 billion on border security, including $16.6 billion on a pointless border wall. For comparison, Border Patrol has spent just $65 billion in the last five decades combined. As I have written before, the border wall is not effective at reducing illegal immigration, and even if it was, it’s construction would result in the seizure of miles of private land without reasonable due process protections.

Bottom Line

There are so many other problems with this bill that they are impossible to list in one post. There is the unnecessary and costly biometric exit system, the fast-track deportations of unaccompanied children at the border back to violence in Central America, and much else. The pathway to citizenship is simply too narrow to make up for the dramatic restrictions that this bill would impose on legal immigrants and asylum seekers. The cancellation of applications by legal immigrants who have been waiting is massively unfair and undermines the integrity of the entire legal immigration system.

*Updated to reflect that the draft will not keep the 23,400 green cards from the married children category