The prospective outlook on immigration policy and reform in the 117th Congress and incoming administration.
At A Glance
- Immigration reform will be difficult with high unemployment and an inconclusive election message from voters.
- Look to the Biden Administration to prioritize regulatory actions undoing many Trump policies.
- Both parties have long-term incentives to cooperate on immigration reform.
Lay of the Land
Kicking off his long-shot 2016 presidential bid, Donald Trump made immigration and international trade his central campaign themes. In 2018, the president again made immigration central to his case for Republicans in the midterm elections. Yet in 2020, Edison Research, the sole provider of exit polling data for the National Election Pool, did not even ask voters if immigration or trade was among their top five issues in deciding who to vote for.
Events during 2020 clearly overtook these issues, and while President-elect Biden is sure to overturn many of Trump’s immigration policies and executive orders, it is difficult to imagine immigration returning to the top of the congressional agenda in the next two years. President Trump’s success in 2016 pushed the parties so far apart on the issue that it could take years to recover.
Yet there are reasons for optimism and important work to be done during the 117th Congress to align political incentives and prepare the ground for action in the future even if a comprehensive immigration reform package is unlikely.
Immigration policy is really two mostly distinct issues, and both are in need of reform. The American business community is clamoring for changes to the various work-related visa programs, while immigration advocates are focused on the undocumented population and asylum seekers. Congress has been unable to bifurcate these issues, and with a political stalemate over how to address undocumented immigrants and border security, visa reforms are being held up as well.
- Short term incentives do not align. Republicans’ political base spoke loudly and clearly in 2016 in supporting Trump and his strident anti-immigrant message over a dozen more traditional Republican candidates, including four current Senators. As a result, Republicans in Congress generally fell in line with President Trump, and the electorate has not reacted particularly negatively. With a divided Congress, President Trump likely to have done better than expected with the Latinx community, and congressional Republicans also having a better election night than expected there is little political incentive for Republicans to moderate on border security, sanctuary cities. Democrats will have to decide whether long-term demographic trends dictate that it maintains its current strategy or if its likely losses in top tier congressional races this year portend a shift in messaging and strategy on immigration issues. It will also be politically difficult for both parties to expand visa programs with unemployment still near 8 percent.
- Long term trends give both parties reasons to act. Behind the scenes, both parties have an incentive to lay more groundwork for reform. After years of inaction and record deportations during the Obama Administration, Democrats must show progress to their base. On the Republican side, Trump’s hardline immigration stance was one of the primary factors for his surprising victory in 2016, but 2020 made clear that his winning coalition was fleeting and long-term demographic trends argue against trying to reassemble it.
- Recent history gives reason for hope. In 2017 when the Senate last came close to a targeted immigration deal on the Deferred Action for Childhood Arrivals (DACA) program, only to have the White House, led by Stephen Miller, move the goalposts at the last second. Without political cover from the president, Senate Republicans began to defect and the deal was scuttled. With Trump (and Miller) gone, and an additional vote for Democrats in the Senate, there is political space for action.
President-elect Biden has framed immigration policy in values-based language. His election website focused heavily on the Trump Administration’s most controversial policies, including family separation, detention of unaccompanied minors, and immigrant deaths in ICE custody.
- Expect executive actions early. The Biden Administration will likely act quickly to overturn a number of President Trump’s executive orders, including the ban on Immigrants from certain Muslim-majority countries; the “Remain In Mexico” policy for asylum-seekers; and the substantial decrease in the asylum cap. His administration is also likely to look at expand DACA and find a legal way to protect the parents of DACA-eligible immigrants.
- Prioritize regulation over legislation. Biden can also look at the current administration’s recent efforts to reform the H-1B visa program as a guide to changes his administration can make to legal, visa-based immigration policies, including rolling back those changes and other possible adjustments to the H-1B program. Seasonal non-farm employers such as amusement parks, beach resorts and landscapers are desperate for changes to the H-2B seasonal worker visa program. Finally, the EB-5 visa program, which allows foreign nationals to obtain a green card if they invest at least $900,000 in a U.S. business that will employ at least 10 American workers, is perennially under attack.