Here we go again.  On January 20, 2021, President Biden sent the U.S. Citizenship Act of 2021 to Congress. On February 18, 2021, Representative Sánchez (D-CA) introduced the U.S. Citizenship Act of 2021 in the House. On the same day, Senator Menendez (D-NJ) introduced an identical bill in the Senate.

From a macro level, the bill includes changes that will strengthen and improve our legal immigration system, reunify families who have been separated by years long visa backlogs, and provide a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America.

Let me focus on the one area which, in the Trump administration, caused so much consternation among the far right-wing of the Republican Party that it caused “the wall” to become one of the central pillars of Trump’s immigration policy.

 President Biden’s immigration bill creates an earned roadmap to citizenship for undocumented individuals. Specifically, the bill allows individuals in the United States without status to apply for temporary legal status, with the ability to apply for green cards after five years, if they pass criminal and national security background checks and they pay their taxes.  In addition, “Dreamers,” those in temporary protected status, and immigrant farm-workers who meet specific requirements are, under the legislation, eligible for green cards immediately.  Furthermore, after three years, all those green card holders who pass additional background checks and also demonstrate knowledge of English and U.S. civics can apply to become U.S. citizens.

There are other requirements too, including a requirement that applicants must have been physically present in the United States on or before January 1, 2021 (although the Secretary of the Department of Homeland Security (“DHS”) can waive the physical presence requirement for those who were removed on or after January 20, 2017 (i.e., Trump’s inauguration day) if they were physically present for at least three years prior to their removal, in the interest of family unity and other humanitarian purposes). Finally, President Biden’s bill address some Progressive’s concerns by changing the word “alien”to “noncitizen” throughout our immigration laws and regulations.

As constructed, the Immigration and Nationality Act (“INA”) has three primary approaches to addressing unauthorized individuals in the United States: removal / deportation, deterrence (e.g., imposing criminal sanctions on employers who hire unauthorized or undocumented workers, etc.), and to a far lesser degree, legalization (which exists today in the form of, e.g., asylum and other humanitarian provisions of the INA, but not nearly at the level that’s needed to address all the individuals in the United States who are here without status).

This notion of a pathway to permanent residence (or possibly even U.S. citizenship) has been problematic for many or even most Republicans for as long as I can remember.  I feel like I’ve written about it seemingly forever.  The original “Dream Act” dates back to 2001.  That year, the Development, Relief, and Education for Alien Minors Act (the original “DREAM” Act) was introduced in the 107^th Congress.  It provided a pathway to lawful permanent resident (i.e., “Green Card” or “LPR”) status for eligible individuals. In most cases, Green Card holders must first have resided in the United States for five years before they could naturalize.  However, instead of the focus singularly being on the 11 to 13 million unauthorized individuals in the United States, and the diametrically opposite policy choices of somehow either removing all of them or “regularizing” them in the United States, the focus shifted to a subset of that overall population.[1]

That is, the original bill in 2001 provided immigration relief to what was referred to as “unauthorized childhood arrivals” who, like the larger unauthorized population, were typically also unable to work legally and were also subject to removal from the United States. But many policymakers, and indeed the majority of the general population today, viewed and continue to view this portion of the unauthorized population more sympathetically than unauthorized immigrants on the whole because unauthorized childhood arrivals had arrived in the United States as children, generally through no fault of their own, and consequently, they were not seen as being responsible for their unlawful status.

Whether we continue to focus on the overall unauthorized population, or the subset of that population now commonly known as the Dreamers, the reality is the problem of any or all of them being here is not going to go away until we as a nation take steps to resolve the issues of why they came here in the first place and, now that they’re here, what we do with (and for) them.

From an economic standpoint, President Biden has history on his side that some sort of legalization program would be a boon for the U.S. economy; that is, the notion of legalizing unauthorized individuals is not only a humanitarian gesture, but it will also create an economic benefit to the United States.  Studies show that individuals who are in the United States lawfully earn more than those who are unauthorized.[2] What’s more is that these extra earnings generate more tax revenue for federal, state, and local governments; they also result in more consumer spending which sustains more jobs in U.S. businesses.[3]  There’s no shortage of substantive economic (and legal) arguments why President Biden should not fight, and fight hard, to get his legislation passed.

The U.S. Citizenship Act of 2021 is President Biden’s first, and may end up being his best (and only), effort to address these incredibly important issues.  I hope that Americans, all of us, can get our acts together and support this sensible and reasonable solution to a problem that has vexed our policymakers for generations.  The U.S. Citizenship Act of 2021 is legislation that builds upon the contributions of immigrants in and to the United States, reunites families, strengthens our economy, expands humanitarian protection programs, and importantly, provides legal status and ultimately citizenship for the 11 to 13 million unauthorized individuals, young and old, who currently live in the shadows.  Let’s create some sunlight for them.

^[1] There’s probably two subsets that have received attention, the second one being agricultural workers.  I’ll save that discussion for a separate article.

^[2] See, e.g., https://ideas.repec.org/a/ucp/jlabec/v20y2002i3p598-628.html; see also http://immigrationpolicy.org/sites/default/files/docs/Economic_Progress_via_Legalization_-_Paral_110509.pdf.

^[3] Id.

Haven’t we been down this road before?  Many times now?  Will we be reading about Comprehensive Immigration Reform 2.0, 3.2, or Version 7?  I don’t know how to characterize it anymore.  Or are we instead heading into a period of Executive Orders to effectuate change because, despite the Democrats being in control of Congress, there’s no desire (seemingly) by Republicans to work with their Democratic counterparts across the aisle for meaningful, and yes, comprehensive immigration reform?  Time will tell.

Suffice it is to say, we should all keep an eye on the news during the first 100 days of the Biden Administration to see what unfolds.  The President’s campaign promises were bold.  Candidates’ election promises almost always are.  And then, with victory in hand, the cold reality of actually governing sets in.

I personally sat in front of my television and watched President Biden’s inauguration speech in real time. It gave me hope, not only after having watched the events unfold at the Capitol building two weeks earlier, but after four long years of dealing with Donald Trump and his evil minion Stephen Miller, the tone was actually postive.  At long last, someone else would be occupying the White House, and the Democrats controlled Congress, slim as their margin in both houses may be.

So, with that, President Biden, on January 20, 2021, sent the U.S. Citizenship Act of 2021 to Congress. Highlights of the proposed legislation include changes to strengthen and improve our legal immigration system, reunifying families who have been separated by years long visa backlogs, and providing a path to citizenship for Dreamers and other undocumented people residing in the United States while, at the same time, addressing the root causes of migration to the United States from Central America.  There’s so much more in the bill.

The bill is strikingly similar in so many respects to a predecessor bill introduced years ago by a bipartisan group of Senators, known then as the Gang of 8,[1] during the second term of the Obama Administration.  No surprise in the current environment, the only two remaining Republican Senators from that group are no longer interested in supporting President Biden’s proposal.  Go figure.

So, as Senator Bob Menendez (D-NJ) and Representative Linda Sánchez (D-CA) lead the introduction of the U.S. Citizenship Act in their respective congressional chambers, President Biden is busy at work, signing Executive Orders which, in the immediate term, will reverse President Trump’s executive order excluding undocumented immigrants from the reapportionment count, preserve and fortify protections for Dreamers, reverse the Muslim Ban, repeal President Trump’s interior enforcement Executive Order, and stop construction on the border wall, among other actions.

Governing by Executive Order is of course not the preferred means, but as I wrote some time ago, according to the American Immigration Council, between 1956 and 2014, there have been at least thirty nine (39) instances where a president has exercised his executive authority to protect thousand and sometimes millions of immigrants, in the United States at the time without status, usually in the humanitarian interest of simply keeping families together. So, here we go again.

President Biden has repeatedly voiced his commitment to ending the Trump administration’s inhumane and unfair immigration policies and, in doing so, laying out his own bold and expansive agenda that will ensure our immigration system reflects our values and undergoes the reform that we all agree is desperately needs.  Day 1 of the Biden Administration has now come and gone.  He has at least honored his promise to get the ball rolling by introducing the U.S. Citizenship Act of 2021 to Congress, and by signing a myriad of Executive Orders to lessen the toll of the Trump Administration’s terrible immigration policies. Let’s see where it goes from here.

^[1] The Gang of 8, as they were known in 2013, included Senators Chuck Schumer, Dick Durbin, Lindsey Graham, Bob Menendez, Marco Rubio, and Michael Bennet. Also included in that group were the late Senator John McCain, and former Senator Jeff Flake.