Within the Biden administration’s first month in office, Senator Robert Menendez and Representative Linda Sanchez released a bicameral proposal for comprehensive immigration reform, the United States Citizenship Act of 2021, cosponsored by eighty members of Congress to “provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.”
That the Biden administration exercised political capital early on in this term suggests that immigration reform is a priority. Within the 353-page proposal, there are real departures from the existing piecemeal system in place today.
Biden’s proposal recognizes the harm inflicted by previous and current policies and acknowledges that a different approach is necessary. It breaks from the usual demands that have escalated the use of force, resources, and tax dollars, especially since September 11. The bill revises terminology, striking the word “alien” and replacing it with the term “noncitizen” in the Immigration and Nationality Act. Most notably, however, is its focus on the “root causes of migration.” Though “root causes” has been included in previous proposals, it’s not been at the forefront as it is in the current bill. And, on February 4, Biden passed an executive order to examine how climate change will affect migration flows, understanding that the increased displacement of people due to environmental factors is inevitably in our future.
Still, despite the proposal’s call for different strategies, it remains short of a paradigm shift. Full reform requires understanding the conditions that cause workers to migrate. Beyond uneven economic development, this includes understanding the destabilizing fallout of US imperial interventions and the disastrous impact of free trade policies on both the sending and receiving countries.
The effects of the North American Free Trade Agreement (NAFTA) on workers, for example, were uniformly negative across all countries of Canada, the United States, and Mexico, but in different ways. In Mexico, NAFTA destroyed the farm sector and rural economies, but less circulated is that this empowered the use of the black market for the smuggling of commercial contraband as well as migrants into the United States, and as the US increasingly militarized its border, the increased risk drove up the cost of smuggling, the number of migrant deaths, political corruption, violence, drug flows, and gang territorial control in Mexico.
What the Bill Claims to Do
Biden’s US Citizenship Act proposes a path to legalization that consists of three status adjustments. It begins with lawful prospective immigrant status, or LPI. LPI status allows immigrants to live, work, and travel in and out of the United States for a period of up to six years. Renewing LPI status is possible. Immigrants are required to hold LPI status for a minimum of five years before they are allowed to apply for residency status and become a legal permanent resident with a green card. Immigrants must hold green card status for a minimum of three years before applying to become a naturalized citizen.
Legalization, at minimum, requires eight years. Eligibility is contingent on a thorough criminal and national security background check. Anyone convicted of a felony or of three misdemeanor offenses is not eligible. But agricultural workers, recipients of Deferred Action for Childhood Arrivals (DACA) and Trans-Pacific Partnership (TPP), and undocumented workers registered with the military would be immediately eligible for LPI status, and due to COVID-19, so would essential workers.
The last time comprehensive immigration reform was passed was thirty-five years ago, when Ronald Reagan signed the Immigration Reform and Control Act (IRCA) in 1986. This legalized about 2.7 million undocumented immigrants and made it a crime to knowingly employ an undocumented worker. This did not stop US employers from demanding cheap and easily exploitable labor. The word “knowingly” protected employers from toothless sanctions, and, ultimately, undocumented workers bore the brunt of Reagan’s control mechanism by doing their best to remain invisible, limiting their ability to collectively organize.
This time, comprehensive reform is on the table; the global pandemic has made immigrant workers very visible. COVID-19 creates the opportunity to foreground labor in our discussion on immigration. Today, two-thirds of undocumented workers are employed in essential industries. The timing of Biden’s proposal in relation to COVID-19 represents a critical juncture to change the political landscape.
There are promising components in the Citizenship Act of 2021. For example, it establishes that undocumented students can pay the in-state tuition rate, which is currently regulated by state, varies along partisan lines, and contributes to dissuading immigrants from pursuing higher education and to existing socioeconomic disparities. It proposes ways to promote efficiency in the currently overburdened court system, one being the addition of fifty-five immigration judges each fiscal year between 2021 and 2024, and proposes alternatives to detention. It creates new categories of employment visas as well as more of them; a new worker category is allocated 40,000 visas, diversity visas would increase from 55,000 to 80,000, and U visas from 10,000 to 30,000. It establishes an Employment Authorization Commission to investigate cases of wage theft and exploitation. It creates a “Citizenship and Integration Foundation” to promote the social and economic advancement of immigrants. This would coordinate state and local entities to deliver English-language and workforce development programs, most likely through contracts with nonprofit organizations.
Beyond the United States, the bill proposes international development with the governments of El Salvador, Guatemala, and Honduras to understand the determinants of the fleeing of families and children; the barriers to democratic governance; and the channels to combat corruption, disrupt money laundering, criminal networks, and human smuggling networks. It commits to funding programs that reunite families, unaccompanied children, and reintegrate them into their country of origin by providing medical, health, and psychological services. The bill would also fund vocation and education centers to provide trainings and meet local hiring needs and boost local economies throughout Central America.
Mexico and Central America
Still, Biden’s proposal is not a paradigm shift.
Although Biden’s proposal recognizes that a unilateral approach is insufficient, it fails to include Mexico. This is particularly alarming considering that the United States has pressured Mexico over the past three decades on stricter border enforcement. Washington has directly handed Mexico the necessary resources of funding, technology, and equipment to convey that a secure border is a “shared responsibility” between both countries. The Trump administration, however, punctured this image to reveal the inequality on each side of the border.
Trump’s Migrant Protection Protocols (MPP), or the “Remain in Mexico program,” that coerced asylum seekers to remain in Mexico led to the creation of refugee camps along the US-Mexico border. These camps remain, even amid a global pandemic and even after Trump has left office. Migrants are still waiting to petition for asylum, even though it is clear that Mexico lacks the infrastructure to hold asylum seekers in safe and clean conditions.
Through the uncertainty of the backlog and the changes in implementation, how will the logics of national security break in both countries, especially if it has dominated political discourse and practice in the United States, without deliberately naming its colonial and racist origin? Even during Biden’s 100-day moratorium on deportations, the United States continued deportations of black Haitian immigrants.
Furthermore, the bill proposes establishing designated processing centers in the countries of El Salvador, Guatemala, and Honduras to screen and process refugees and determine eligibility for admission to the United States. This suggests the Biden administration, similar to the Trump administration, will deter refugees from reaching the US border. In practice, a very narrow definition of refugee is used that must fit within the categories of gangs, corruption, violence, economic, or personal persecution. Refugees and asylum-seekers who petition to escape violent conditions would now be forced to wait in their own countries.
As vice president, Biden led an aid strategy that allocated $750 million per year to reduce the number of unaccompanied minors fleeing their homes in Central America for the United States. This funded a series of initiatives, including after-school and job readiness programs. But it resulted in little to no impact on addressing the root causes of migration, which have only worsened since then, well before the disruption of COVID-19 on Central American economies.
Today, Biden has committed $4 billion to understanding the underlying causes of migrants from Central America, but, as even the Brookings Institute admits, “it is unrealistic to expect that even a well-managed $4 billion investment would transform the economies of the region sufficiently to stem incentives to migrate within a few years.”
We Should Demand More
The overwhelming distress imposed on migrants by a system formed through imperialism, racism, and violence will continue to produce violence and inequality unless the structures themselves are challenged, and Biden’s proposal fails to challenge the main hindrance to comprehensive reform within the United States — labor exploitation.
While the role of undocumented workers in vital economic activities is more and more acknowledged, the political opportunity to push further and demand labor protections for those workers is being wasted.
Biden’s current proposal allows work authorization but excludes immigrants of LPI status from any social benefit, mandates their participation in a private market to purchase health insurance, and allows no room for error with anything related to the IRS. Furthermore, Biden’s proposal states the secretary of labor and the secretary of homeland security jointly regulate employment-based visa programs, geographically and in accordance to the needs of employers.
The proposal sugarcoats contracting, stating that contracts will consider educational, nonprofit, and/or community-based organizations in addition to private corporations. Outsourced services include case management, family case management, immigrant screening, and services that require immigrant appearances. The Citizenship and Integration Foundation is another representation of the nonprofit industrial complex, or how government hands money over to private hands to avoid challenging existing systems.
Immigrants navigate the criminal system for civil violations without legal representation that often violates their right to due process. The right to legal counsel is one of the main differences between criminal and civil systems. Biden’s proposal includes a right to legal counsel, yet only mentions covering legal costs for pregnant women, children, and/or individuals with disabilities.
Workers, Not Criminals
At its core, the Biden proposal does not challenge the criminalization of immigrants. The proposal presents eligibility for parole as an alternative to the detention system even though well over 90 percent of immigrants show up for their hearings, and over 60 percent of immigrants in detention centers have never been convicted of a crime. This continues to shuffle immigrants with civil violations through the US criminal system.
Technology is suggested as a means to make the immigration court system more efficient. This is presented as a contracting opportunity for small businesses to work on modernizing infrastructure with smart technology to facilitate the entrance of pedestrians and vehicles at ports of entry. Technology, like ankle monitors, are already a part of immigration enforcement and a source of profit for private contractors that run immigrant detention, like the GEO Group.
The proposal fails to mention that most immigrants collected by ICE are possible due to policing programs created in the aftermath of 9/11 that require local police to share information with the federal government. Biden’s proposal will not stop said domestic enforcement. Migrant workers in a never-ending precarious state fearful that any contact with local police will set in motion detention and deportation proceedings will not change with the Biden plan.
The proposal also fails to challenge the discriminatory nature of immigration enforcement. The bill prioritizes bars over family unity. Bars are disciplinary bans that keep family members who were deported from reentering the United States for a period of three years, ten years, or indefinitely. Immigrants of LPI status are deliberately excluded from any public benefit as a result of Bill Clinton’s crime and welfare reforms, which the Clintons themselves admitted were an outstanding failure. Biden does not point out the lack of legal channels that have led to the presence of eleven million undocumented, or that it is the United States’ state-generated problem.
Immigrants of LPI status are to endure eight years of application fees, eight years of background checks, eight years of digital surveillance, eight years of local police interactions that may land them in detention, eight years with the threat of parole hanging over their head, eight years of scrutiny on their paying taxes, eight years of exclusion from political participation, eight years of exclusion from full civil rights. This will particularly stall since plenty of research shows that of all immigrant groups, Latino immigrants both naturalize in lower numbers and at the slowest rate.
Simply, Biden’s proposal continues to paint immigrants as criminals, instead of the respondents to American’s demand for labor, routed through a civil system. It’s a settlement that no doubt fits the needs of capitalists, who both need these workers but also benefit from their precarious status and limited scope for collective action.
Among the public writ large, though, there is evidence that sentiment around immigration is more progressive than in previous years; the discourse on immigrants has historically revolved around “deservedness.” The Dreamers, for example, relied on a political discourse around their “innocence” to gain widespread public support. No doubt, they deserve status and protections, but so do their parents. Farmworkers were deemed essential, but were undermined by the Trump administration’s negotiations to lower their pay. Are agricultural workers helping to sustain the world economy no less deserving of legal protections?
The Biden plan simply doesn’t do enough to orient its policies toward the needs of immigrant workers over those of private employers and NGO contractors.