This week, the House GOP conference will try to hammer out an agreement on a “Dreamer” amnesty, the scope of which is still up in the air. A small group of Republican lawmakers has come close to gathering enough signatures for a discharge petition, thanks in the large part to the willingness of the vast majority of House Democrats to sign it, and this has given amnesty advocates the leverage they need to press their case. The chief obstacle to a deal is that while GOP restrictionists believe that a Dreamer amnesty should be accompanied by meaningful interior-enforcement measures — such as mandatory E-Verify, and legal-immigration reforms, such as ending the diversity-visa lottery and imposing new limits on family based admissions — GOP admissionists, and virtually all Democrats, want a Dreamer amnesty with as few strings attached as possible. Why has it been so hard for Republicans to bridge their Dreamer divide?
The reason, as I have argued elsewhere, is that most amnesty advocates see a Dreamer amnesty as a stepping-stone to a more expansive amnesty that would grant legal status to a broader universe of long-resident unauthorized immigrants, including those who decided to settle in the U.S. unlawfully as adults. By adopting mandatory E-Verify in exchange for a Dreamer amnesty, Congress would create employment barriers for non-Dreamer unauthorized immigrants, a large majority of whom have resided in the U.S. for ten years or more. To those who oppose a more expansive amnesty, that is precisely the point. For years, pro-amnesty activists have differentiated Dreamers from other unauthorized immigrants on the grounds that while the latter bear responsibility for choosing to violate U.S. immigration laws, the former are blameless. GOP restrictionists are, in essence, taking this rhetoric at face value, despite the fact that most pro-amnesty activists do not in fact see the non-Dreamers as less deserving. As for me, I believe that mandatory E-Verify and the reform of family based admissions are the heart of the issue. If we need a more expansive amnesty to get them, that is a deal I’d be willing to accept. My sense is that the president would also be open to such a deal. For now, though, it is not on the table, and so our immigration knot remains as tight as ever. I doubt that the House GOP conference will be able to unravel it this week.
What happens if we don’t get a Dreamer deal? In a 2017 New York Times op-ed, George Borjas argued that the best policy to address the long-resident unauthorized-immigrant population is “benign neglect,” on the grounds that “[m]any will eventually qualify for visas because they have married American citizens or have native-born children. Rather than fight over a politically impossible amnesty, we could accelerate the granting of family-preference visas to that population.” I disagree with Borjas on this question, mostly because I don’t think we can deter future unauthorized immigration without adopting mandatory E-Verify, which in turn will necessitate either granting work authorization to long-resident unauthorized immigrants or driving them deeper underground. But let’s suppose that we don’t reach an amnesty deal in the foreseeable future. Is there any other route to legalizing large numbers of unauthorized immigrants over time, as Borjas suggests?
Consider a recent article by Jeanne Atkinson, from the Catholic Legal Immigration Network, and Tom Wong, from the University of California, San Diego, which estimates that roughly 2 million of the country’s 11 million unauthorized immigrants are likely eligible for legal status. Notably, this number does not include individuals who may be eligible for a family based petition. (Under existing family based admission rules, roughly 4 million people are on waitlists for numerically limited family preference category visas, and so some people who are eligible for them choose to, in effect, “jump the queue” by settling in the U.S. unlawfully.)
In screenings of 3,000 unauthorized immigrants in nine states, the researchers found that 15.4 percent were qualified for some kind of legal relief, whether through an adjustment of status under section 245(i) or 245(a), eligibility for Asylum, the Nicaraguan Adjustment and Central American Relief Act, Special Immigrant Juvenile Status, or protection under the Violence Against Women Act, among others. Of those the researchers surveyed, the majority (57.4 percent) were women, with nearly 60 percent coming from Mexico. On average, they had spent almost 13 years in the United States.
Extrapolating out, Atkinson and Wong suspect that 18.5 percent of the national population of unauthorized immigrants have a path to legal status. The problem, they write, is ignorance of U.S. law, a lack of funds, and poor access to legal representation. What’s more, some people in this group would only be able to apply for legal status once the process of removing them from the country has started.
Still, write Atkinson and Wong, it is worth screening immigrants to identify those who could apply for legal status: “legalization of status in general helps keep families together, improves the stability of the workforce, increases tax revenues, and helps protect people from abuse by unscrupulous employers, landlords, and others who would take advantage of a person’s lack of status.” The authors thus propose the creation of a “massive, nationwide screening and legalization effort,” and barring that, “public outreach and education to encourage immigrants to seek legal advice . . . preferably before the immigrants come into contact with immigration enforcement authorities.”
In light of the fact that so many unauthorized immigrants might already be eligible for legal status, why don’t pro-amnesty activists channel their efforts towards screening? It’s hard to say. One possibility is that a big screening push might reduce the perceived need for a more expansive amnesty. In other words, overlooking the fact that many of the most sympathetic unauthorized immigrants already have a path to legal status might just be good politics for the pro-amnesty camp.