The rules of the House of Representatives normally require that legislation receive a committee hearing, markup, and vote before receiving a vote on the House floor. However, the rules adopted by the House in January waive this requirement until April 1 for bills that previously passed the House. This expedited process could encourage the House to act quickly on legislation it passed last Congress. The last votes scheduled on the House calendar before April 1 are on March 12—meaning that if the House uses this procedure, it would have just over a month to make it happen.

There are a couple of important differences between this Congress and last Congress that could make it more difficult to pass these ten bills. First, Democrats have a slimmer majority (220 now v. 235 last year with 218 being the majority of the House). This means that the Democrats have less margin for error within their party. Second, the attack on the Capitol by some Republican voters, the attempt by 139 House Republicans to overturn the election, and the impeachment and trial of Donald Trump has created unusual obstacles to even small-scale bipartisan cooperation.

The ten immigration bills that passed last Congress cover a wide range of topics, including legalization of certain Dreamers and farm workers, green card reforms for high skilled workers, standards and oversight of the Department of Homeland Security (DHS), restrictions on presidential authority, and greater legal protections for people detained by DHS agencies. Overall, the bills fall far short of comprehensive reform, but they would nonetheless constitute significant and generally positive changes to the system.

House-Passed Immigration Bills from the 116th Congress

1. H.R. 6 — American Dream and Promise Act of 2019 (passed 237 – 187 on June 4, 2019)

Every Democrat and seven Republicans (Fred Upton — MI, Chris Smith — NJ, Dan Newhouse — WA, Brian Fitzpatrick — PA, Mario Diaz-Balart — FL, Don Bacon — NE, and Will Hurd — TX) voted for this bill last Congress. Of the seven Republicans, only Hurd is gone, and a couple more Republicans who defeated Democrats in November may vote for this bill. The unanimous support from Democrats with some Republicans virtually guarantees that this bill will receive a vote by March 12.

The bill provides the opportunity to receive legal permanent residence (green cards) to certain illegal immigrants who entered the United States at least four years ago as children before the age of 18 as well as those in the Temporary Protected Status program as of January 1, 2017—about 2.6 million people, according the Migration Policy Institute’s Julia Gelatt.

2. H.R.1044 — Fairness for High-Skilled Immigrants Act (passed 365 – 65 on July 10, 2019)

All but eight Democrats and 57 Republicans supported this bill. The lopsided vote is the second time that the House of Representatives has passed this bill with majorities of both parties voting in favor since 2011. This would seem to make it a lock to get fast-tracked this Congress, but unlike the other bills on this list, the Senate actually amended and passed this bill as well. Normally, this would be a positive development, but because the House disagreed with its changes, it may complicate its decision to bring the bill to the floor quickly. But the complication doesn’t rule out early action. The House may want to just kick it back to the Senate quickly to get the process going.

The bill phases out the country limits for employment-based green cards over three years and raises the country caps from 15 percent for family-sponsored immigrants. Currently, no more than 7 percent of green cards in the employment- and family-based categories may go to immigrants from any single birthplace (unless they would otherwise be wasted), leading to exceptionally long waits for Indian immigrants. There are 1.2 million employment-based immigrants who would be affected by the bill. The Senate added several complex provisions, but the dealbreaker for the House appears to have been a limit on the number of H‑1B workers who can receive green cards and a ban on adjusting to legal permanent residence any Chinese national who was ever “affiliated” with the Chinese Communist Party.

3. H.R.3239 — Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (passed 233 — 195 on July 24, 2019)

All Democrats joined by one Republican (Don Young — AK) voted for this bill. The unanimous support from Democrats and the high visibility of the issue makes this bill a plausible one for action early this year. On the other hand, circumstances have changed dramatically at the border since July 2019. Crossings are still down, and the new administration has promised to create its own standards. It is possible that House Democrats may want to allow that process to play out before imposing its own rules.

The bill requires health screenings of detained immigrants at the border and sets timelines for those screenings. It requires the provision of interpreters, chaperones, and mental health treatment when necessary. It also mandates certain baseline standards for care of detainees.

4. H.R.549 — Venezuela TPS Act of 2019 (passed 272 – 158 on July 25, 2019)

Every Democrat and 39 Republicans voted for this bill. The strong bipartisan vote makes this legislation a strong contender for the fast-track treatment in 2021. However, the fact that President Biden could unilaterally make the bill’s changes could mean that the administration may pre-empt House action.

The bill would designate Venezuela as a country whose nationals are eligible for Temporary Protected Status (TPS). TPS is a status provided in situations where it would be inhumane to force a person in temporary or illegal status back to their home country, such as during the socialist country’s economic and political crisis. The bill would designate Venezuela for an initial period of 18 months.

5. H.R.2203 — Homeland Security Improvement Act (passed 230 – 194 on September 25, 2019)

All but one Democrat voted for this bill with all Republicans opposing it. The lack of Republican support would make a vote this Congress tighter, but the near-unanimous Democratic support could allow this bill to see the floor this month.

The bill would establish an independent, neutral, and standardized process to assist individuals in resolving complaints related to U.S. Customs and Border Protection and Immigration and Customs Enforcement, a Border Oversight Panel, which shall make recommendations related to border enforcement policies, and a Border Community Liaison in each Border Patrol sector on the northern and southern borders, which shall consult with and receive feedback from border communities on ICE and CBP policies and activities.

6. H.R.565 — AMIGOS Act (passed by voice vote on December 3, 2019)

The bill passed by voice vote, meaning that no one in either party objected to its passage and requested a recorded vote. This means that leadership of both parties agreed to it, and none of the anti-immigrant members of the House cared enough to object (perhaps because it would pass so overwhelmingly).

The bill would add Portugal to the list of countries whose nationals may participate in the E‑1 and E‑2 nonimmigrant visa programs for treaty traders and investors. The E‑1 program allows a nonimmigrant to enter “solely to engage in international trade on his or her own behalf” along with certain of their employees, and their spouses and minor children. The E‑2 program is for entrepreneurs who invest significantly in their businesses, certain of their employees, and their spouses and minor children.

7. H.R.5038 — Farm Workforce Modernization Act of 2019 (passed 260 – 165 on December 12, 2019)

All but four Democrats (Jared Golden — ME, Ben McAdams — UT, Bobby Scott — VA, Rashida Tlaib — MI) voted for this bill, and they were joined by 34 Republicans—nearly all of whom will return. Again, with bipartisan support and near unanimity among Democrats, this bill is a strong candidate to receive the fast-track treatment this coming month.

The legislation would provide the opportunity for illegal immigrant farm workers and their families to receive legal permanent residence (green cards). It would also improve the H‑2A guest worker program’s minimum wage requirement and allow some year-round farmers to access the program. It also creates a pilot program whereby employers can hire H‑2A workers who switch from one employer to the other on the same basis as any other U.S. worker with only the requirement to pay the H‑2A minimum wage. The bipartisan compromise that led to nearly three dozen Republicans to back it was a mandate for farmers to use the flawed E‑Verify employment verification program.

8. H.R.2877 — To add Ireland to the E‑3 nonimmigrant visa program (passed by voice vote on March 9, 2020)

The bill passed by voice vote, meaning that no one in either party objected to its passage and requested a recorded vote. This means that leadership of both parties agreed to it, and none of the anti-immigrant members of the House cared enough to object (perhaps because it would pass so overwhelmingly). The bill previously passed the House on a voice vote in 2018 under GOP House leadership.

The legislation adds Ireland to the E‑3 nonimmigrant visa program, which is effectively an H‑1B program solely for Australia with a cap of 10,500. The Irish would receive the same number of visas as Australians used in the prior year. Any company that hired the Irish E‑3s would be required to enroll in the flawed E‑Verify employment verification program.

9. H.R.2214 — NO BAN Act (passed 233 – 183 on July 22, 2020)

All Democrats and two Republicans (Will Hurd — TX and Brian Fitzpatrick — PA) voted to pass the NO BAN Act last Congress. The unanimous support may spur action again this Congress, but the unanimity was achieved when Donald Trump was president, President Biden has already used the power to ban immigrants very early in his term. On the other hand, Biden included the bill explicitly by name in his legislative proposal to Congress, so he almost certainly cannot publicly oppose any House action on it.

The NO BAN Act restricts the authority of the president to ban immigrants or nonimmigrants by outlawing bans based on religion, race, sex, nationality, place of birth, or place of residence. It also requires that any ban by the president narrowly tailors the suspension using the least restrictive means to achieve a compelling government interest. It also creates a rebuttable presumption in favor of granting family-based and humanitarian waivers to the ban, and it explicitly authorizes anyone in the United States harmed by a ban standing to challenge to sue.

10. H.R.5581 — Access to Counsel Act of 2020 (passed 231–184 on July 22, 2020)

All Democrats voted for this bill, and all Republicans voted against it. The lack of Republican support would make a vote this Congress tighter, but the unanimous Democratic support could allow this bill to see the floor this month.

The bill explicitly requires the Department of Homeland Security to allow access to immigration counsel for anyone subject to secondary or deferred inspection at U.S. ports of entry. No one can give up their legal permanent resident status without waiving in writing their right to confer with an attorney.

In October 2020, DOL issued an “interim final rule” effective immediately that inflated the “prevailing wage”—or minimum wage—that employers must offer and pay under the H‑1B temporary and permanent employment-based immigration programs. As I explained at the time, the rule was deeply flawed. It misrepresented how high wages would rise under the rule and so also miscalculated the rule’s costs.

Businesses commenting on the rule change through the official regulatory process cited my analysis, and in January 2021—just before the change in administrations—DOL issued a final rule that admitted these mistakes, and to address them, the final rule increases the prevailing wage by much less than the interim final rule (though still very significantly). DOL’s final rule, however, still failed to rectify another error that I noted in the October interim final rule. In its justification for raising the prevailing wage, DOL made the following finding:

the Department’s data show that many of the largest users of the H–1B program pay in many cases wages well over 20 percent in excess of the prevailing wage rate set by the Department for the workers in question.… Employers must pay the higher of the actual wage they pay to similarly employed workers or the prevailing wage rate set by the Department. Both possible wage rates generally should approximate the going wage for workers with similar qualifications and performing the same types of job duties in a given labor market as H–1B workers. It is therefore a reasonable assumption that … the wage rates they produce would, at least in many cases, be similar.

Where the Department’s otherwise applicable wage rate is significantly below the rates actually being paid by employers in a given labor market, it gives rise to an inference that the Department’s current wage rates … are not reflective of the types of wages that workers similarly employed to H–1B workers can and likely do command in a given labor market.… Put another way, when many of the heaviest users of the H–1B program pay wages well above the prevailing wage, it suggests that the prevailing wages are too low, and thus can be abused by other firms. (85 FR 63872, 63886).

In other words, DOL admits that most major companies are already offering wages higher than the existing prevailing wage and offering similar amounts to the “actual wages” that their other U.S. workers are making, and so its decision to raise the prevailing wage should have only a relatively small effect for those other companies “abusing” the process. It reiterated these points in the final rule, stating that “the actual wage clause and the prevailing wage clause of the INA are designed to achieve similar outcomes.”

Yet DOL’s data show that once the rule is fully implemented, this will definitely not the case: the prevailing wage will affect 100 percent of the top 50 H‑1B employers and impact 73 percent of their H‑1B job offers. The average prevailing wage increase will be about $20,000 higher than their actual wage offers, which DOL says are based on what other U.S. workers are making.

The impact for the top H‑1B employers that DOL insists have nothing to fear from raising the minimum wage are actually greater than the overall averages for other employers. Altogether, the rule would have required H‑1B employers to offer wages of about $7.6 billion in a single year more than under the existing prevailing wages. These inflated wages will make it very difficult or impossible for many companies to hire these important foreign workers at all.

DOL has not published exactly what the new prevailing wages will be, so this analysis used the Bureau of Labor Statistics Occupational Employment Statistics survey data—on which the prevailing wages are based—and interpolated them to identify the new prevailing wage for each H‑1B offer recorded in the H‑1B disclosure data published by DOL. Some data were not available for certain areas of the country.

Ultimately, the data show that DOL has not implemented a rule in accordance with its own findings that most employer’s H‑1B job offers should be similar to the new prevailing wage rates. I’ve already shown that DOL also misrepresented the private wage data that it received from employers commenting on the rule that show the same thing. The new prevailing wage rates are inflated. The reason is obvious: DOL doesn’t want employers to be able to legally hire foreign workers.

On its way out the door, the Trump administration’s Department of Labor (DOL) finalized a rule that increased the prevailing wage—the minimum wage—for foreign workers in the H‑1B and permanent immigration programs. The final rule updated an interim final rule effective October 2020, which, as I have previously explained, the DOL misrepresented in multiple ways. And while the wage increases are lower in the new rule than the October rule, DOL is still justifying the rule with misrepresentations. It claims in the final rule that data provided by commenters on the interim final rule support its higher wage levels, but the opposite is true.

The law requires DOL to set the prevailing wage with “at least 4 levels of wages commensurate with experience, education, and the level of supervision.” The Level 1 wage is the entry level. The level 4 wage is the “fully competent” or supervisory wage. DOL uses the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey to identify the wage for each occupation-area combination.

The OES survey doesn’t capture information about skills, so DOL has for as long as it has used the OES survey (since 1998) created the entry level wage by averaging the bottom third of wages in the occupation in the area based on the assumption that lower wages reflect lower skilled. It then averaged the rest of the wages (top two thirds) to create the level 4 wage. The other two levels are equally distributed between the level 1 and level 4.

The level 1 wage (average of the bottom third of wages) is about the 17th percentile. DOL’s January final rule will raise the level 1 prevailing wage to the 35th percentile, which is lower than the interim final rule for October that had set it at the 45th percentile. To justify setting the wage at the 35th percentile, the final rule cited several comments that it received in the interim final rule providing private wage data for various occupations. DOL makes this comment on the data:

In general, the Department found that the annual wage data for specific jobs in specific metropolitan areas offered by commenters were clustered around percentiles in the 30s. Some annual wage data offered by commenters fell in lower percentiles, and a few fell higher in the distribution.

DOL listed wages that it received before concluding:

In sum, most of the wage data offered by commenters was for salaries paid by employers to entry-level workers in positions typically filled by H‑1B workers. While there are outliers, most of these wage observations fell between the 30th and 40th percentiles of the OES distribution.

In other words, DOL is stating that private wage data from the commenters support its rule, but that is false. Most of the wages from commenters as listed by DOL did not fall between the 30th and 40th percentiles. It is almost like these passages were written before DOL had analyzed the data that commenters provided. But Table 1 provides the entry level 1 data that DOL cited and what percentile DOL identified those wages falling in the OES data. It shows only one high end wage of the 15 ranges provided that was above the 35th percentile. The majority of the DOL-cited data points was at the 20th percentile or below.

In other words, the private wage data provided to DOL and cited by the rule are much closer to the existing prevailing wage structure than the DOL’s rule. DOL also provided a few data points for wage levels 2 and 4 (Table 2). Wage level 2 will increase from about the 34th to 53rd percentile. Yet the only two data points that DOL provides show percentiles closer to the original prevailing wage. The level 4 wage will increase from the 67th to 90th percentile, but again the only comment cited by DOL shows wages close to the original prevailing wage.

This is not DOL’s only argument for its new rule, but it is an important one nonetheless. By misrepresenting—again—wage data to support its misguided approach, DOL undermines its credibility. Courts have enjoined the October interim final rule on procedural grounds since December. Hopefully, if courts reach the substance of the final rule, they will find it wanting as well.

In February 2019, after Congress approved some but not all the funding the Trump administration wanted for a wall on the Mexican border, the president declared a national emergency.

The next day, he issued a memorandum directing the Defense Department to support the Department of Homeland Security “in securing the southern border and taking other necessary actions to stop the flow of deadly drugs.” DHS then submitted a request for DoD’s assistance under a federal law (10 U.S.C. § 284) that allows the Pentagon to assist other agencies with the construction of fences, roads and lighting to block drug-smuggling corridors. The acting secretary of defense ultimately approved $2.5 billion for six projects across Arizona, California, and New Mexico.

This was an obvious end run around a Congress that specifically prohibited DoD from using its funding in that manner. In Section 8005 of the Department of Defense Appropriations Act of 2019, Congress authorized the secretary of defense to transfer certain funds between appropriations accounts upon “determination… that such action is necessary in the national interest.” But Section 8005 contains a proviso stating that such transfer authority may not be used in any case “where the item for which funds are requested has been denied by the Congress.”

The Sierra Club, a coalition of border-area community organizations, and the states of California and New Mexico sued, alleging that the border-wall reallocation violated statutory authority and thus also the Constitution’s Appropriations Clause, Article I, Section 9, which says that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” A district court and then the U.S. Court of Appeals for the Ninth Circuit found that the acting secretary had indeed exceeded the scope of his powers.

Now before the Supreme Court, and building on our previous participation in the case, Cato filed a brief in support of the challengers. We urge the Court to reject the government’s self-serving argument that the acting secretary’s funding allocation can’t even be reviewed, which would close the judiciary’s doors to a broad class of lawsuits against executive lawmaking.

The Supreme Court will hear what at that point will be called Biden v. Sierra Club on February 22 — if the new administration doesn’t confess error and moot the case.

President Trump entered the White House with the goal of reducing legal immigration by 63 percent. Trump was wildly successful in reducing legal immigration. By November 2020, the Trump administration reduced the number of green cards issued to people abroad by at least 418,453 and the number of non-immigrant visas by at least 11,178,668 during his first term through November 2020. President Trump also entered the White House with the goal of eliminating illegal immigration but Trump oversaw a virtual collapse in interior immigration enforcement and the stabilization of the illegal immigrant population. Thus, Trump succeeded in reduce legal immigration and failed to eliminate illegal immigration.

Figure 1 shows the monthly number of green cards issued to immigrants outside of the United States. In most years, about half of all green cards are issued to immigrants who already reside in the United States on another visa. Thus, the number of green cards issued to immigrants abroad is a better metric of the annual inflow of lawful permanent residents than the total number issued. Trump cut the average number of monthly green cards issued by 18.2 percent relative to Obama’s second term, but that average monthly decline hides the virtual end of legal immigration from April 2020 onward.

In response to the recession and the COVID-19 outbreak, President Trump virtually ended the issuance of green cards to people abroad. In the last 6 months of the 2020 fiscal year (April-September 2020) the U.S. government only issued about 29,000 green cards. In the same period in 2016, the U.S. government issued approximately 309,000 green cards. Compared to the last half of FY2016, the number of green cards issued in the last half of FY2020 fell by 90.5 percent (please see note at the end of this blog post for how I estimated these figures).

Before the COVID-19 pandemic during the period from January 2017-February 2020, the average number of green cards issued per month was only down about 0.5 percent under Trump compared to from January 2013-February 2016 under the Obama administration with cumulative numbers down just over 3.2 percent. Beginning in mid-to-late March, the Trump administration virtually halted the issuance of green cards to people abroad. Without the COVID-19 immigration restrictions unilaterally imposed by the President, the issuance of green cards to foreigners abroad would have barely declined relative to the second term of the Obama administration.

Figure 2 shows the monthly number of non-immigrant visas (NIVs) issued abroad. NIVs include tourist visas, work visas, student visas, and others that do not allow the migrant to naturalize. Trump cut the monthly average number of NIVs by about 27 percent relative to Obama’s second term, but that decline obscures the virtual end of NIVs from April 2020 onward.

As with immigrant visas, President Trump virtually ended NIV issuance in response to the recession and the COVID-19 outbreak. In the last 6 months of the 2020 fiscal year (April-September 2020) the U.S. government only issued 397,596 NIVs. In the same period in 2016, the U.S. government issued more than 5.6 million NIVs. Compared to the last half of FY2016, the number NIVs issued in the last half of FY2020 fell by almost 93 percent (please see note at the end of this blog post for how I estimated these figures).

Before the COVID-19 pandemic, during the period from January 2017-February 2020, the average number of monthly NIVs issued was down about 12 percent under Trump compared to the January 2013-February 2016 period under the Obama administration and the cumulative numbers were down by just over 14 percent. Beginning in mid-to-late March, the Trump administration virtually halted the issuance of NIVs to people abroad. The COVID-19-related restrictions were the most severe and impactful part of Trump’s immigration policy.

Looking at the decline in the number of visas issued abroad under Trump through November 2020 compared to the second term of the Obama administration, Trump reduced the number of green cards issued by approximately 418,453 green cards and the number of NIVs issued by about 11,178,668. That’s a roughly 18 percent decline in the number of green cards issued abroad and approximately a 28 percent decline in the number of NIVs issued during Trump’s only term relative to Obama’s second term.

Although Trump succeeded in cutting legal immigration more than he initially planned, he oversaw the collapse of interior immigration enforcement. In 2020, the removal of illegal immigrants from the interior of the United States was the lowest as an absolute number and as a share of the illegal immigration population since ICE was created in 2003 (Figure 3). Trump failed to increase removals because local jurisdictions refused to cooperate with his administration, continuing a trend begun during the Obama administration in response to their deportation efforts. As a result, the population of illegal immigrants remained about the same as when he took office (Figure 4).

Note

Figures 1 and 2 are based on Department of State monthly visa issuance statistics. However, the numbers are estimates prior to March 2017 for immigrant visas and NIVs using the seasonal variations in the known years plus random variation added to make it look natural. I then checked the monthly results against he known annual totals and they are within 1 percent, so good enough or a visualization. This blog post is an expansion on work by my colleague David Bier where I add more monthly data.

Recent news reports suggest that Joe Biden will propose a series of immigration bills for Congress to consider early in his administration. The bill with the most details reported so far would legalize the roughly 11 million illegal immigrants currently living in the United States. According to the quick news summaries of the possible bill, it is a simple legalization that would grant lawful status, the ability to earn a green card in five years, and citizenship in an additional three to virtually all illegal immigrants currently living in the United States. That is a vastly simpler and cheaper way for illegal immigrants to legalize compared to the expensive and complex schemes of earlier failed reform efforts.

The Good

The good part about this bill is that mass legalization would be very positive for the United States. The United States would benefit from quickly legalizing illegal immigrants who aren’t real criminals and putting them on a path toward permanent residency and citizenship. In the short run, many opponents of immigration will be upset, but the vast reduction in the population of illegal immigrants and their successful assimilation will reduce social perceptions of chaos and increase the perception that the government has immigration firmly under control, all long term benefits for the immigration debate and the country as a whole.

Further, the usual complaints about immigration liberalization would not apply to legalizing illegal immigrants because they are already here. The lower crime rates of illegal immigrants relative to native-born Americans and possibly compared to legal immigrants means that we’re not going to see a surge in crime from legalization and may even see a drop in crime as a result. Also, illegal immigrants are already working in the United States with generally higher labor force participation rates than other groups, so legalizing them won’t increase wage competition with American workers because they are already here working.

Furthermore, wages would increase for illegal immigrants after they’re legalized. Work by my former colleague Andrew Forrester and I found that illegal immigrants initially faced a hefty wage penalty of about 11.3 percent relative to legal immigrants during the 1995–2017 period. Although illegal immigrant wages did converge with legal immigrants during that time, and more recent illegal immigrants entered with lower wages penalty than those that came in the past, legalization would hasten illegal immigrant and overall immigrant wage convergence with native-born Americans.

The bigger potential effects could be on the government’s finances. Illegal immigrants have limited access to few means-tested welfare programs but they already have access to public education. Legalization will increase their access to these programs once they naturalize, but it won’t increase their access to the most expensive outlays like public education. At the same time, their wages will also increase due to legalization and their U.S.-born children will have much higher levels of education and, thus, will likely pay more in taxes than receive in benefits. Therefore, it’s unclear what the net-fiscal impact would be and it depends on the time-horizon for analyzing those effects.

The good political part of this bill is that Democrats are finally playing hardball on immigration as they will not be presenting legislation already laden with compromised positions. Instead, they will start with a cleaner and simpler bill and then ask what other senators and congressmen need to get on board, which will no doubt be a lot of expensive security signaling along the border. Also, Democrats have finally learned that any pro-immigration piece of legislation that they introduce will immediately be called “amnesty” by its opponents, so there isn’t a political downside to introducing a real amnesty. After all, what are proponents going to say? “This time it’s a REAL amnesty” doesn’t carry the same weight.

The Bad

The policy downside of this bill is huge because it has no chance of becoming law in its current reported form. Moderate Democrats like Senators Joe Manchin and Kyrsten Sinema aren’t likely to support it, to say nothing of the ten Republican senators necessary to pass it. A more moderate legalization is obviously better than no legalization at all. One lesson I’ve learned over the years is that we should be less strategic when thinking about immigration reform – if there is an opportunity to legalize some people or expand legal immigration then pro-immigration politicians must seize it at that moment rather than trying to think of how doing so makes passing other immigration reforms more difficult. Nobody knows the answer to the long term political consequences, they never have, and we should all stop pretending that we do and instead support policies that we know will be good when we can.

If the hypothesized Biden bill fails then it would also open up other possibilities. Politically, it would be a marker bill that shows where the Democratic Party stands and would be a starting point for future negotiations. That probably doesn’t have much value, but that’s the conventional strategic wisdom that I just told you to disregard in the previous paragraph.

More important is that a failure to legalize illegal immigrants in Congress will give more of a political justification for a Biden administration to take sweeping executive actions to legalize all illegal immigrants by granting them Temporary Protected Status (TPS). Under current statute, a president has the power to grant TPS to any immigrant in the United States if their home country faces a disaster.


Importantly, the statute explicitly mentions “epidemic” as such a disaster, and since all countries are suffering from COVID-19, then-President Biden could grant all illegal immigrants TPS. Immigration attorney and former deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice’s civil division Leon Fresco thinks this will be legally sound, and he’s probably correct. A universal grant of TPS could be undone by a future president but, at minimum, it would allow some current illegal immigrants to adjust their status to a green card and thus shrink the pool of illegal immigrants.

The major structural legal change to the immigration system under Trump is that the President now has the power to stop all legal immigration from abroad for any reason. The failure of the immigration legalization bill in Congress would allow Biden to test the power of the president to at least legalize illegal immigrants using broad existing statutory authority. Beyond that, there are many smaller actions that Biden could follow that will reduce the illegal immigrant population as detailed here by my colleague David Bier. No president should be making policy by executive decree but no president is likely to give up the power that Congress unwisely granted it, so you should expect many executive and agency actions from Biden here.

Other Legalization Ideas that Congress Should Consider

There are many ways to legalize illegal immigrants. One reform that should be included in the bill regardless of anything else is a rolling legalization that would allow long‐​term illegal immigrant residents and lawful residents without green cards to be granted green cards on an ongoing basis without an application cutoff date and based entirely on how long they’ve resided here without committing any crimes. We proposed just such a reform here based on a portion of British immigration law. This will reduce the potential for the illegal immigrant population to grow in the future.

Another way is to create a tiered legalization system that lets illegal immigrants choose whether they want to be a temporary resident, a quasi-permanent resident, or be on a pathway toward citizenship. The less-permanent means to reside here should be easier to acquire while the path toward citizenship should be harder. As evidenced by the Reagan amnesty, only 41 percent of the illegal immigrants who got a green card decided to naturalize. There’s no reason to make most current illegal immigrants who don’t want citizenship to be on that track. This proposal is less positive than legalizing all non-violent illegal immigrants but will likely be closer to what eventually becomes law.

Beyond legalizing illegal immigrants, the best way to guarantee that the reduction in illegal immigration that an amnesty would accomplish won’t be undone by future waves of illegal immigration is to increase lawful immigration. There’s little evidence that amnesties attract illegal immigrants. The overwhelming evidence is that expanding legal immigration reduces illegal immigration. From 2000–2018, a 1 percent increase in the number of H‑2 visas for Mexicans is associated with a 1.04 percent decline in the number of Mexican illegal immigrants apprehended by Border Patrol – a finding that is statistically significant at the 1 percent level. Even nativists agree that legal immigration decreases illegal immigration. Channeling potential illegal immigrants into the legal immigration system will do the most to reduce illegal immigrant inflows in the future that will guarantee that the stock of illegal immigrants doesn’t grow.

The Biden administration has a lot of work ahead of it to undo the large number of immigration executive actions implemented by the Trump administration. Much of that work won’t earn headlines but it will be important for creating a better immigration system. On top of that, it’s heartening to see the Biden administration getting ready to hit the ground running even if their first bill has virtually no chance of becoming law as it is currently envisioned.

Georgia Republican Senators David Perdue and Kelly Loeffler lost to Democrats Jon Ossof and Raphael Warnock in a tight election. The Senate now has 50 Democrats (including 2 independents who caucus with Democrats) and 50 Republicans. With Kamala Harris as a tie-breaker, Democrats will now have an opportunity to reform the immigration system in 2021 as they will control Congress and the Presidency. President-elect Joe Biden said that he will “introduce” an immigration reform bill

This bodes well for immigration reform becoming law as the median voters in the Senate will be moderates like Kyrsten Sinema (D‑AZ) and Joe Manchin (D‑WV). Because the median voters in the Senate are moderate and the bill will need some Republican support, any legislation will also be moderate. The riots in the Capitol have also unified the Democrats so they will be able to push more effectively for reform. The House of Representatives will pass better immigration reform bills that the Senate will then water down, but there is a much better chance that they will attempt to pass legislation.

A Senate bill will also have to attract some Republican votes. Fourteen Republican Senators voted for the 2013 immigration reform bill, just over 30 percent of the GOP delegation. There is no way that 30 percent of Republican Senators would vote for a similar immigration reform bill today unless many in the GOP believe that Trumpist nativism is one of the main reasons that they lost the Senate. This is more possible now because both Loeffler and Perdue were anti-immigration. Senator Perdue even cosponsored the RAISE Act, the most anti-legal immigration piece of legislation proposed in a generation. Senator Perdue did sponsor a bill in 2020 to recapture unused green cards and give them to medical professionals, but that did not salvage his reputation.

Convincing 10 Republican Senators to vote for an immigration reform bill requires it to be watered down or split into numerous pieces. Numerous bills with small and attainable goals would be better and may result in some of the positive aspects of immigration reform becoming law, such as legalization for illegal immigrants and (less likely) some expansion of green cards, while avoiding mandatory E‑Verify or boosting immigration enforcement. To be clear, moderate reforms are more likely to become law but the chance of those moderate reforms becoming law is a lot higher than a week ago due to the Georgia elections and the riot on Capitol Hill.

Legal Immigration Reforms

Congress will have a chance to pass moderate immigration reform that will legalize some illegal immigrants, reform immigration enforcement, increase legal immigration, and vastly reduce the power of the president to reduce legal immigration. All four portions of immigration reform are important, but this blog post will focus on expanding legal immigration because only changes to the legal system will provide the biggest benefits to the United States and prevent future illegal immigration. Improving the legal immigration system can provide the stability, order, and perceptions of control that will make immigration reform politically sustainable.

President Joe Biden can deregulate immigration through executive actions but he can only go so far without Congress. Many of the ideas to expand and reform legal immigration come from other Cato publications, such as David Bier’s superb list, a white paper I edited earlier this year, and others. My only real piece of political advice is to avoid talking about numbers of immigrants because numbers provide little useful information to most people, most people won’t understand the context of those numbers, and numbers become a lightning rod for the opposition. “Ten thousand new visas” sounds huge until you realize that there are over 330 million people in this country. On the policy side, it is wiser and more economically efficient to devise good selection criteria without numerical limits where the market regulates quantity than it is to pick numerical limits.

Here are some ways for Congress to expand legal immigration, short explanations, and with links to longer explanations and legislative text:

1. State-based visas: States will be able to sponsor a limited number of dual-intent economic migrants. Importantly, the state determines or creates a process to determine which economic migrants to sponsor so states can experiment and change requirements in response to conditions. The annual number grows if the states adhere to the rules of the program and few state-based migrants abscond and become illegal immigrants. Representative Curtis (R‑UT) and Senator Johnson (R‑WI) introduced bills to create such a program modeled off of the Canadian provincial nomination program.
2. Immigration Tariff: The federal government will sell an unlimited number of Gold Cards to immigrants at fixed prices. The price charged will be designed by Congress to create a positive fiscal effect based on the worst-case average fiscal estimate for an immigrant based on his age and education. The Gold Card would be permanent residency without an option for naturalization, but it would be dual intent so migrants could naturalize if they are able to adjust to a green card through another means. The government could also sell a temporary residency version called the Silver Card at a lower price, similar to the IDEAL plan. This could raise tens of billions of dollars of tariff revenue annually to pay for extra immigration enforcement or, preferably, a tax cut for Americans as well as spur the creation of a huge industry. This is roughly based on a proposal by the Nobel prize-winning economist Gary Becker.
3. Auction Visas: The federal government would auction off a limited number of visas to the highest bidders. The visas could be green cards or temporary work visas. If the government must allocate a limited number of visas, this is the most economically efficient way of doing so. The revenue raised could pay for immigration enforcement or, better yet, a tax cut.
4. Immigration Taxes: Congress could allow in many more immigrants in a visa category that requires the beneficiaries to pay a much higher income tax rate. Not all immigrants would be subject to higher taxes, only those who choose to enter on this visa would pay higher taxes. This would be better than not allowing them to immigrate, in the same way that legalizing marijuana and levying a tax on it is better than maintaining prohibition, but less efficient than letting them in without different tax rates. Regardless, the tax revenue gained here would be large.
5. Bilateral Worker Agreements with Mexico and Canada: The United States should create bilateral worker programs with Mexico and Canada that would allow people from those countries to work here and allow Americans to work in those countries. Not only is this economically efficient, but it creates a sense of fairness that overcomes some gut-level objections to liberalized immigration amongst Americans. The creation of reciprocity will make this reform popular, reduce opposition to immigration, and create large economic benefits for all nations involved.
6. Community Sponsored Visas: Similar to the state-based visa reform above, this would allow local communities to sponsor migrants based on their own criteria. This is similar to the Heartland Visa endorsed by the Biden administration.
7. Congressional Visas: Individual members of Congress would be allowed to nominate a certain number of immigrants for a green card each year similar to how they nominate students for military academies. The numbers for this system would not be large but it would expose Senators and Congressmen to the problems of our immigration system, the large number of their constituents who want it to be reformed, and incentivize members of Congress to fix those systemic problems so they can maximize the value of the visas they personally have control over.
8. Immigration Moneyball: A new visa category will select immigrant applicants based on the outcomes of a multidimensional data-driven system to favor immigrants who would best thrive in American society and contribute to the economy. A moneyball system could select more for social characteristics or economics.
9. Automatic Adjustment of Visa Numbers: Congress could build in an automatic escalator for all numerically capped visas so their numbers grow with the size of the economy, the labor market, the population, or any other metric. The numerical caps for green cards and temporary visas were often set decades ago and haven’t changed in response to growth in the U.S. economy, population, or demand for immigrants. As a result, long wait times have paralyzed portions of the immigration system and reduced the growth potential of the U.S. economy.
10. Maximum Wait Times for a Green Card: This would set a maximum wait time of five years for a green-card eligible immigrant. Once the immigrant hits that maximum wait time then he would be automatically issued a green card that would not be deducted from the numerical cap for that year. This would introduce fairness into the immigration law that voters could easily understand. After all, waiting for decades for a green card is nobody’s idea of fairness. This would reduce family separation, increase the flow of highly skilled immigrant workers into the United States, and fix many of the problems with the green card system.
11. Replace the Permission Slip System with a Veto: Currently, most employers applying to hire temporary migrant workers must prove that they will not adversely affect the employment and wages of American workers as well as checking myriad other unnecessary bureaucratic boxes. Instead, all temporary worker visa petitions should be assumed to be valid unless government agencies discover a problem with an individual petition. In other words, the current system of asking for permission should be replaced with one that gives the government a veto.
12. Deregulate and Expand Temporary Work Visas: Numerical caps for all temporary work visas should be eliminated or greatly increased. All family members of H, L, E, and other visas worker should be allowed to legally work. Workers on the H‑2A and H‑2B visas should have their visas approved for 3 years, they should be able to return year-after-year without counting against the numerical cap in those subsequent years, and they should be able to change employers without asking for government permission. Congress should turn all seasonal worker visas into seasonal or year-round work visas.
13. Private Refugee Sponsorship: A private refugee system would allow individuals and organizations to sponsor refugees and their families if they pay some money to the U.S. government to offset the fiscal costs. President Biden could create this through executive action but Congress should also create it to bind future presidents.
14. Refugee Numbers Set by Congress: The number of refugees admitted is set by the President. Congress should instead create a flexible numerical cap of 1 percent of the worldwide refugee population identified by the United Nations High Commissioner for Refugees at the end of the previous fiscal year or a minimum of 150,000, whichever number is higher. This would bind future presidents.
15. Universal Visa Recycling: Visas and green cards should be recaptured and added to the next year’s total if an immigrant with a visa adjusts his status, violates the terms of his visa and loses it, surrenders it, or otherwise loses it.
16. Recapture Unused Visas from the Past on a Permanent Rolling Basis: There are about 220,000 green cards that have not been issued since 1990. They should be recaptured and all future green cards that go unused in any given year should also be reissued. All green cards or other visas not issued as far back as possible should be recaptured and reissued.
17. All Lawfully Present Residents Should be Granted Work Authorization: Everybody who is lawfully present in the United States and who resides here should be allowed to work for any employer anywhere in the country under any mutually agreed upon wage.
18. STAPLE Act: Any foreign-born person who earns a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics should be exempt from the numerical cap for H‑1B visas and green cards. This should be expanded to those who graduate with a master’s degree or, even better, a bachelor’s degree.
19. BELIEVE Act: The BELIEVE Act would double the number of employment-based green cards and then exempt the family members of the principal immigrant worker from the numerical cap. The effect would be to increase the number of employment-based green cards issued annually by at least a factor of four.
20. Universal OPT for All Foreign Graduates of American Universities: Optional Practical Training (OPT) has existed in some form since 1947 to provide temporary employment authorization to international students after graduation. DHS authorizes 12 months of initial OPT to all foreign graduates and 24 months of additional OPT employment authorization for graduates with STEM degrees. It should widen the type of graduates who can get work authorization to all graduates and increase the term to 60 months.
21. All Adjustments of Status Should be Exempt from Green Card Numerical Caps: This would more than double the number of employment-based green cards, clear the backlog, and increase the number of family-based green cards issued. In 2019, there were 130,691 adjustments of status in the employment-based (110,689), family-sponsored (18,999), and diversity (1,003) visa categories.

Conclusion

There are many other immigration reforms that Congress should consider, but the above are a very quick summation of some reform ideas that my colleagues and I have written about elsewhere and that we’ve discussed for years. Even a slight liberalization of immigration would be very positive for the United States so politicians should not hesitate to take it. The political situation will change in the coming months and years, but right now there is a lot of momentum for the new Congress and President to pursue reform.