Posted on February 26, 2021

Biden Can Get Most of His Immigration Bill Done on His Own

David J. Bier, Cato Institute, February 22, 2021

President Biden and Democrats in Congress unveiled the U.S. Citizenship Act last week. {snip} Given that Democrats never bothered to try to get their support, even moderate Republicans universally denounced the effort as a partisan messaging bill, and so it has almost no chance of becoming law.

But the fact is that Congress has already given President Biden authorities to carry out much of the agenda on his own without the bill becoming law. The Supreme Court has unfortunately recognized that Congress has the constitutional authority to delegate to the president broad powers on immigration, and it has. Presidents (especially but certainly not exclusively the last one) have usually used their powers to restrict immigration and interpret the laws restrictively. {snip}

As I and my coauthors explained last year in Deregulating Immigration: A Blueprint for Agency Action, President Biden has the ability not just to reverse Trump’s restrictive regulations, but many other restrictions that predate him as well. While it is regrettable that Congress passes ambiguous laws authorizing enormous executive discretion, the goal (as attorney Angelo Paparelli and I argue) should be to interpret these statutes in favor of the liberty of immigrants and the Americans with whom they associate, not as restrictively as possible.


Legalization of immigrants

Biden has two different authorities from Congress that he could use to grant legal status and work authorization to almost all noncriminal illegal immigrants in the United States right now. The first is Temporary Protected Status (TPS). It is a status that Congress has told the administration to grant to those who cannot be humanely returned to their home countries due to a crisis there. TPS holders have work permits so they can be lawfully employed in the United States. The statute specifically mentions a “pandemic” as a crisis that would be the basis for TPS. Given the state of the world right now, Biden can grant TPS to whoever he wants.

The second option would be to grant illegal immigrants “parole-in-place.” Parole-in-place relies on the authority granted by Congress to the Department of Homeland Security (DHS) to “parole” or waive the normal legal barriers to entering. Parole-in-place refers to granting “parole” to someone who has already entered. Last year, Congress explicitly recognized the use of parole-in-place on behalf of broad categories of illegal immigrants as a valid exercise of the parole authority. {snip}

Path to citizenship for some immigrants

Biden cannot create a new path to citizenship for all illegal immigrants, but he can allow those who—if not for their illegal status—already meet the criteria for green cards to receive those green cards, which would open up a pathway to citizenship. He can do this—as his vice president suggested—by granting these immigrants “parole-in-place” (described above). Biden could use this authority to grant parole to those immigrants who can through marriage, employer sponsorship, or family connections receive green cards, which would open up the current path to citizenship. {snip}


Parole Central Americans in the family-sponsored backlog

This provision requires Biden to use parole directly on behalf of certain Central Americans in the family-sponsored backlog. Not only is this redundant to the V visa expansion, there’s no reason for Biden to wait for this bill to pass to do this since parole can be made available at the discretion of the administration at any time. {snip}

Establish refugee processing centers in Central America

The bill requires the president to create refugee processing centers in Central America and expand refugee processing there. The Refugee Act of 1980 gave the president total authority to set the refugee limit and establish the criteria for selecting refugees for resettlement. President Biden has already used that authority to raise the refugee ceiling for this year. {snip}

Recapture unused employment-based green card cap numbers

The bill requires the administration to recapture the roughly 226,000 employment-based green card cap numbers that were not used over the last 30 years, mainly due to bureaucratic delays. As former-DHS official Amy Nice explained in our deregulating immigration paper last year, the administration already has the authority to do this when it failed to implement the laws as Congress intended. {snip}

Exempt spouses and minor children of green cards for family and employment-based immigrants and diversity lottery winners

The legislation would exempt spouses and minor children of new legal immigrants from the green card caps. As attorney Ira Kurzban explained in our deregulating immigration paper, nothing in the law requires the administration to count immediate family against the caps for family, employment, and diversity categories. By freeing up these numbers, exempting derivatives would roughly double the employment-based numbers and increase the family-based cap by about 50 percent. {snip}

Increase requirements for immigration bans

The bill increases the standards for a president to impose an immigration ban—banning nationality or religious-based bans and requiring that any ban be based on specific credible facts supporting a compelling governmental interest in a ban—and only if the ban is narrowly tailored using the least restrictive means to achieve the interest. It also requires consultation with Congress within 48 hours about the ban. President Biden currently has the ability to set whatever standards he wants for bans, so he could increase the requirements on his own, but he has instead chosen to continue blanket bans on almost all legal immigration and temporary workers to “protect the labor market” using the same weak protectionist justifications as his predecessor. {snip}