President Trump brought immigration issues to the forefront of American politics as he attempted to limit all forms of immigration, legal and illegal, to the United States. Joe Biden strived to differentiate himself from Trump during the 2020 elections by promoting what he called a more compassionate approach to immigration. He spoke about offering a pathway to citizenship for DACA recipients and their parents. He promised to tackle the root causes of what he called irregular migration but also promised to continue America’s commitment to offering safety to asylum seekers and refugees. Finally, he claimed he wants to help the estimated 11 million undocumented immigrants in the United States to obtain legal status in the United States.

On his first day as President, Joe Biden proposed the U.S. Citizenship Act of 2021 that would grant lawful status to many people without documents currently in the United States. This is not the first time a proposal like this has occurred in U.S. history. To adequately prepare for and understand how immigration reform could impact your status in the United States and what you can and can and should do, you should first understand how immigration reform has worked in the past.

1986 Amnesty Under President Ronald Reagan

In 1986, President Ronald Reagan signed the Immigration Reform and Control Act into law. The law created a pathway to lawful status in the United States for millions of immigrants without papers, specifically two types of people: (1) Immigrants who had been in the United States unlawfully since before January 1, 1982 and (2) Season agricultural workers who had worked 90 days in the United States prior to May 1986.[1] These people did not just automatically get legal status as some suggest. I remember Karl Rove describing the 1986 amnesty bill giving lawful status to an immigrant who was simply in the United States unlawfully and raised their hand. He is wrong and he was exaggerating what Reagan did in an effort to gain support for his political initiatives he was proposing at the time he made that flippant statement. It was not that easy. In order to qualify to get lawful status in 1986, the immigrants could not have extensive or serious criminal history. If you were convicted of a felony or 3 misdemeanors, you could not receive amnesty.[2] You also had to demonstrate knowledge of U.S. government, U.S. history, and English.[3] Men had to register for Selective Service, swearing to serve in the U.S. military should the government require their service.[4] If (not when, but if) you were approved for amnesty, you got 18 months of temporary lawful status.[5] After 18 months, you could apply for permanent residency.[6] After holding permanent residency, you could apply for U.S. citizenship.[7] At each step of the process from applying for temporary lawful status to U.S. citizenship, you would be re-evaluated for your fitness to remain in the United States. You were not just handed anything and not everyone who applied got lawful status. Roughly 2.7 million people obtained legal status through the 1986 amnesty law.[8]

1996 Immigration Reform Under President Bill Clinton

In 1996, President Clinton did something a little similar but he did not call it amnesty. In 1996, President Clinton signed into law the Legal Immigration Family and Equity (LIFE) Act and LIFE Act Amendments of 2000 that amended the Immigration and Nationality Act (INA), giving the opportunity to people without papers in the United States to obtain permanent residency despite previous immigration violations, such as entering the United States unlawfully, overstaying visas and failing to maintain lawful status in the United States, and working without authorization.[9] To qualify for permanent residency, applicants would have to show that either (1) A family member, such as a parent, spouse, or a U.S. citizen child older than 21, years old had filed a family petition for the applicant by April 30, 2001 or (2) A U.S. employer had filed a labor certification application for the applicant with the Department of Labor in an effort to obtain an employment visa for the applicant by April 30, 2001.[10] To obtain legal permanent residence, the applicant would have to pay a $1,000 penalty for their past immigration violations. They also had to go through extensive criminal and national security background checks. Just because someone applied for permanent residency did not mean they received permanent residency.

2021 Immigration Reform Proposals

On January 20, 2021, President Joe Biden proposed the U.S. Citizenship Act. There are many proposals in this bill that I cannot cover but below are some highlights:

• Eliminates the 3/10 year bars for people who have been unlawfully in the United States. Please read this blog post for more information about the 3/10 year bars.
• Creates a pathway to immediate permanent residency for DACA and Temporary Protected Status (TPS) recipients.
• Makes staying and working in the United States easier for international university students with STEM degrees.
• Permits people with approved family visa petitions to temporarily join their family in the United States until they can apply for legal permanent residency, decreasing the amount of years families are physically separated.
• Raises amount of U visas issued every year from 10,000 to 30,000 which would dramatically reduce the U visa backlog.
• Creates a pathway to temporary lawful status, permanent residency, and citizenship for immigrants physically present in the United States without status as long as they were here on or before January 1, 2021. They would be able to have temporary legal status, similar to Reagan’s amnesty bill. After 5 years, the could apply for permanent residency after they pass a criminal and national security background check. After 5 years of being legal permanent residents, they could apply for U.S. citizenship, after passing the necessary criminal background tests and English and U.S. civics knowledge exams.

The bill also proposes a $4 billion initiative that will help address the root causes of migration from Central America to the United States. The plan would encourage countries like El Salvador, Guatemala, and Honduras to crack down on corruption, violence, and extreme poverty in their countries because they are the main driving forces behind Central American migration. The United States government would provide the countries with funding to address these problems as long as the countries meet certain benchmarks and are serious about eliminating the serious societal, political, and economic instability in the region. This will hopefully make Central America a livable place where people can thrive and live in safety, thus stemming the flow of migration north. Instead of Central Americans coming to the United States for a better life, they can have a better life in their home countries.

To read more about the bill, please go to Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System.

What can you do now to be proactive about obtaining lawful status in the United States?

The U.S. Citizenship Act is currently in the House Subcommittee on Immigration and Citizenship. This bill has a long way to go before it becomes law and chances are there will be many edits, additions, and eliminations in the U.S. House and Senate before the final version of the bill reaches President Biden’s signing desk. In order to pass the House, a simple majority (218 our of 435) needs to vote to approve the bill. There are 223 Democrats in the House but many of them are not on the same page about immigration law and policy so I cannot say the bill will leave the House exactly as it was presented to the House. There will probably be many changes to the bill before the House passes its final version of the bill.

Once the bill passes the House, it will go the Senate where it will first be introduced to the Senate Subcommittee on Immigration, Citizenship, and Border Safety. Lawmakers in the Subcommittee will study the proposals, speak to agency experts about the impacts of such proposals, and possibly hold hearings on the proposals. The committee members can also make changes to the bill. After it gets out of the Senate’s committee, a simple majority (51 out of 100) needs to vote to approve the bill. There are 50 Republicans in the Senate right now, 48 Democrats, and 2 independent party members (but the Independents tend to caucus with the Democrats). With these numbers, progressive Democrats will have to make many concessions to Republicans and moderate Democrats to pass the bill.

Once the bill passes the Senate, the bill will go to a joint Senate and House committee that will write the final bill. They will then present the final version of the bill to the House and Senate to vote on again. Once the final version passes both the House and Senate, then President Biden can finally sign it into law. The bill will undoubtedly go through many changes and it will take years for the finished product to become law.

So, what should you do if you are currently in the United State without papers?

You should get legal advice on what immigration options are available to you right now based on current law. If you qualify for something, you should apply now. For example, if you have a U.S. citizen child who is 21, you should ask them to file a family visa petition for you. The 1996 law permitted people to gain permanent residency if a family member had already filed a visa petition for them. Congress may be more open to giving lawful status to family members of U.S. citizens and legal permanent residents because family unity is an easier message to sell to American voters so moderate and Republican lawmakers will be less fearful of backlash in their voting districts if they vote to give lawful status to family members. If you have been the victim of a crime, you should consult with an immigration attorney about whether you qualify for a U or T visa. If you do, you should apply immediately. The law already gives legal status to these visa applicants so it will be easier for politicians to just simply raise the amount of visas offered each year, making the waiting line shorter. If you qualify for DACA but have delayed in filing your application, stop dragging your feet and apply immediately. Polling has showed both Republicans and Democrats support giving U.S. citizenship to DACA recipients and I believe this will happen during Biden’s presidency. You have no time to waste.

Our office remains hopeful that real and substantial immigration reform will occur, along with a serious and intentional plan to address the root causes of migration to the United States, specifically extreme violence in other countries. However, we cannot guarantee it. As a result, we remain committed to helping immigrants be proactive about obtaining lawful status in the United State right now. Please call or text (317) 534-6382 to schedule a legal consultation today.

[1] “IRCA Legalization Effects: Lawful Permanent Residence and Naturalization through 2001”. Office of Policy and Planning, Statistics Division, U.S. Immigration and Naturalization Service, https://www.dhs.gov/xlibrary/assets/statistics/publications/irca0114int.pdf.

[2]“AMNESTY: WHO IS ELIGIBLE”, NY Times (Nov. 3, 1986), https://www.nytimes.com/1986/11/03/us/amnesty-who-is-eligible.html.

[3] “AMNESTY, WHO IS ELIGIBLE”, link at footnote 2.

[4] Juan P. Osuna. “Amnesty in the Immigration Reform and Control Act of 1986: Policy Rationale and Lessons from Canada.” American University International Law Review (Vol. 3, Issue 1, Article 4)

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=auilr (1988).

[5] Osuna, “Amnesty in the Immigration Reform and Control Act of 1986” (1988), link at footnote 4.

[6] Osuna, “Amnesty in the Immigration Reform and Control Act of 1986” (1988), link at footnote 4.

[7] Osuna, “Amnesty in the Immigration Reform and Control Act of 1986” (1988), link at footnote 4.

[8] INS Report “IRCA Legalization Effects”, link at footnote 1.

[9] “Green Card Through INA 245(i) Adjustment,” USCIS, https://www.uscis.gov/green-card/green-card-eligibility/green-card-through-ina-245i-adjustment (last updated May 17, 2021).

[10] “Green Card Through INA 245(i) Adjustment”, link at footnote 9.