WASHINGTON — Congressional leaders who hoped to strike a deal on immigration reform before the end of the year faced difficult odds to push proposals through for votes.
Democrats saw the lame-duck session between the election and the start of the new Congress as the last chance to pass significant legislation before losing their majority in the House. Among the immigration-related legislation considered were bills that would have offered pathways to citizenship for so-called Dreamers, for farmworkers and for Afghans evacuated to the U.S. since last year; and another that would have removed caps on the number of green cards granted each year to people from any given country.
As of Wednesday night, none of the bills had advanced.
"I am not giving up on you — don't give up on me. We are going to fight for you to win," Sen. Richard J. Durbin, D-Ill., told dozens of Dreamers at a rally last week, his voice cracking with emotion.
The moment illustrated the apparent frustration felt by lawmakers as another opportunity to bring changes to the immigration system came and went.
Perhaps the broadest and highest-profile of the proposals came from independent Sen. Kyrsten Sinema of Arizona and Republican Sen. Thom Tillis of North Carolina, whose legislation would have bolstered border security funding and expanded the use of detention facilities in exchange for a pathway to citizenship for roughly 2 million immigrants brought to the U.S. as children.
Tillis and Sinema had reportedly been in talks for months about the deal, which also would have extended the controversial pandemic policy known as Title 42 that authorizes the quick expulsion of migrants at the border without the chance to seek asylum.
While some immigrant advocates had been cautiously optimistic about the draft legislation, House Democrats including Rep. Lou Correa, D-Calif., said they could not support it, and House Republicans including Rep. Chip Roy of Texas said securing the border should not be coupled with any pathway to citizenship. The bill's text was never produced, and time ran out for a floor vote.
Cris Ramón, an independent global migration analyst, said the Border Patrol union's support for Tillis and Sinema's framework showed promise for achieving a compromise.
"One of the major things getting in the way is there's a sense that whatever they introduce has to fix the border on the first try," Ramón said. "The border is incredibly dynamic — it's always changing and shifting."
After a federal judge ordered that Title 42 be lifted by Thursday, the Department of Homeland Security braced for a rise in migrant crossings at the U.S.-Mexico border. But on Monday the Supreme Court temporarily blocked that from happening, keeping the policy in place for now.
At the Lutheran Church of the Reformation in Washington last Thursday, Durbin told Dreamers gathered for a rally that he had tried to find the votes for legislation to protect their status, but that he had fallen short with Republicans.
Durbin wrote the first version of the DREAM Act in 2001 in an effort to establish a path to permanent residency for immigrants who arrived in the U.S. as children. Over a decade later, then-President Obama established the Deferred Action for Childhood Arrivals program, widely known as DACA, to temporarily protect qualified immigrants from deportation.
Juliana Macedo do Nascimento, deputy director of federal advocacy for United We Dream and a DACA recipient herself, said she was disappointed in the lack of progress during the lame-duck session. A federal court case challenging DACA is expected to reach the Supreme Court, where advocates predict the conservative majority will declare the program illegal. Macedo do Nascimento said she worries Congress will wait until the last minute to act to protect people like her.
"I feel like they sometimes forget that they're dealing with real people's lives," she said. "It feels really dehumanizing."
Another bill that never got a floor vote would have phased out annual limits on the number of employment-based green cards awarded per country of origin, while doubling the per-country cap on family-based green cards. The current limits have disproportionately affected people from India and China, who make up a significant portion of immigrants with visas for high-skill work and often wait decades to become permanent residents; as well as people from Mexico and the Philippines, who face backlogs for family sponsorship.
Critics warned that eliminating the per-country caps without increasing the number of green cards available each year would result in most going to applicants from a few countries at the expense of those from all other countries. In a letter to her Congressional Black Caucus colleagues earlier this month, Rep. Yvette D. Clarke, D-N.Y., wrote: "I cannot support efforts that would perpetuate the current inequities in our immigration system."
During House floor debate on Dec. 13, Rep. Zoe Lofgren, D-Calif., said the Congressional Research Service had concluded the bill would have no adverse effect on applicants from Africa or the Caribbean, and called on Congress to move the immigration system "away from its racist origins." The bill was removed from the voting schedule the next day.
One bill that did make it to a vote was the Veteran Service Recognition Act, which would have protected immigrants who served in the U.S. military from deportation and made it easier for those who were deported to return. But after clearing the House early this month, the bill wasn't taken up by the Senate.
Efforts to include significant immigration provisions in the federal defense bill were also unsuccessful, including a proposal to protect so-called documented Dreamers when they turn 21 from aging out of qualifying for lawful status under their parents' visas.
Another proposal that hasn't advanced is the Afghan Adjustment Act, which would provide additional security vetting and a pathway to citizenship for more than 70,000 Afghans resettled in the U.S. under temporary status that expires after two years. That bill garnered broad bipartisan support, as well as the backing of more than 40 well-known retired military officers, who wrote in a letter to Congress Saturday that failing to enact it would make the U.S. less secure.
"Potential allies will remember what happens now with our Afghan allies," they wrote.
Advocates held out hope that protections for Afghans would land as part of the $1.7 trillion funding measure in the works to avert a government shutdown. Lawmakers attempted to fold in as many items on their legislative wish lists as possible without hindering the omnibus package from advancing. A partial government shutdown will start Saturday if the bill fails.
The draft package released Tuesday provides more than $86 billion to the Homeland Security Department, with increased funding for border technology, maritime security and migrant apprehensions, according to a summary released by House Appropriations Committee Chair Rosa DeLauro, D-Conn.
The draft includes money to hire 300 more Border Patrol agents, provides $133 million to U.S. Citizenship and Immigration Services for refugee processing, rejects the Biden administration's attempt to cut immigrant detention capacity by more than 25% — instead maintaining 34,000 beds — and earmarks $800 million to help nonprofits and local governments with the arrival of migrants in places such as El Paso.
The omnibus also extends the Special Immigrant Visa program, which offers green cards to Afghans who worked with the U.S. government, and raises the cap on them by 4,000 visas to 38,500. But it doesn't include protections for those already here, many of whom don't qualify for the program and must apply for asylum or risk deportation.
Advocates also hoped to slide a last-minute Senate bill into the omnibus package to offer a pathway to citizenship to those who are farmworkers for more than a decade. The Affordable and Secure Food Act, unveiled last week, would modify and expand the H-2A visa program that U.S. employers can use to hire seasonal migrant laborers — allowing them to employ some workers year-round. It would also require agricultural employers to use E-Verify, the electronic system that screens employees for legal work authorization.
But the bill lacked public Republican support and was opposed by the American Farm Bureau. In a speech Monday night on the Senate floor, Sen. Michael Bennet, D-Colo., urged his colleagues to take action.
"Are we really going to accept, as a definitional matter for this country, that we want fields filled with indentured servants?" he said.
On Wednesday, supporters of the Afghan Adjustment Act pushed for a floor amendment to include its protections in the omnibus package, though the move was a long shot. The day ended with the Senate deadlocked over an amendment by Sen. Mike Lee, R-Utah, that would extend Title 42 at the border, threatening passage of the bill.
Kristie De Peña, director of immigration at the Niskanen Center, a Washington think tank, said that while hope for change this session may have passed, the need for an immigration overhaul was becoming increasingly urgent.
"We haven't hit the breaking point, but there will be a cliff," she said. "If we can get that close [to achieving change], it's clear that the policy solutions are out there."
