Across America, millions of immigrants and their families, businesses, and communities are waiting for – and calling for – immigration reform, and yet Congress continues to fail to act. With some 11 million undocumented immigrants living and working in the United States, most of whom already have deep roots in this country including strong family ties, and agreement that wholesale deportation makes no sense, public opinion is now firmly in favor of legalizing the undocumented. Poll after poll show that two out of three American voters support legalization and a way for these immigrants to become citizens.  Meanwhile, businesses continue to struggle to obtain visas for needed foreign national employees, with tens of thousands of applications for potentially job-creating immigrants thrown out just this month because insufficient visas are available for professional workers. And, global entrepreneurship in this country languishes because there are few work-related avenues under the current system to accommodate the world’s most talented. In the last 10 months since the Senate passed sweeping reform of America’s immigration system, nothing much has happened.

A Recap of What’s Happened

On June 27, 2013, the Senate voted 68-32 in favor of S.744, the “Border Security, Economic Opportunity, and Immigration Modernization Act,” the most sweeping overhaul of the nation’s immigration and border control laws in nearly 30 years.  All eyes then turned to the Republican-controlled House of Representatives, which had been deliberating on a series of piecemeal reform measures, eschewing the comprehensive approach adopted by the Senate and favored by the Administration. Indeed, House committees passed four reform bills. At that time, advocates hoped that agreement between the Senate and House on process and content could be reached at least informally before the 2013 August recess.  It did not. 

Soon after the recess, however, Congress returned to Washington and was embroiled with the Administration and consumed by the budget and the government shut down. Nevertheless, in early October in an effort to jumpstart stalled comprehensive immigration reform deliberations, the House Democratic leadership introduced its version of a comprehensive reform (CIR) bill modeled after S.744. The introduction of the bill was part of an orchestrated series of events that took place across the country to remind the public that immigration reform remained unfinished. Its introduction was more symbolic than realistic given the Republican House members’ preference for piecemeal legislation and a refusal to vote for any measure that included a pathway for citizenship for the undocumented. The stalemate on immigration continued and by mid-October the chance of CIR becoming law became about zero percent.

By early 2014, CIR advocates on both sides of the aisle began to moderate their positions on a “pathway for citizenship” and started discussions about other ways to regularize the undocumented population without a pathway for citizenship, and at the same time ensuring that whatever scheme was enacted did not create a second-class immigrant system. One solution advocated was to add more slots in the business and family visas categories for those who legalize, rather than create a new visa or path.

Meanwhile, in light of record levels of deportations under his Administration – some 400,000 people a year and far more than under President Bush – President Obama ordered a review of deportations. House Republicans then latched onto the idea that President Obama could not be trusted to carry out the law. Criticizing him for reviewing his deportation policies and for implementing through executive orders certain limited forms of administrative relief, including DACA, “parole in place” for certain immediate family members of military personnel, and prosecutorial discretion, House Republicans balked at further discussions on CIR and have essentially frozen in place a dysfunctional system.  The stalemate continues.

Where We Are 

With a bit more than three months left before the summer congressional recess and then fall midterm elections, Congress has little time left in its congressional calendar to enact immigration reform.  First, most of the contested primaries – where pro-immigration reform positions are most controversial especially for conservative Republicans – must be concluded so that victors can feel free to take locally unpopular positions on immigration without fear of reprisals. Second, agreement must be reached at least in principle by the leaders in both chambers.  Even the most optimistic among us are beginning to become realists on the prospects of immigration reform and are turning again to the White House to explore further forms of administrative relief.

There are indeed numerous steps the Obama Administration can take by executive order or regulation to temporarily alleviate inhumane policies for the undocumented or create opportunities for the highly skilled. For example, the Administration is being urged to exempt other immigrants from deportation beyond the “DREAMer” youth and to extend work authorization to the spouses of certain high skilled workers. And, the Administration can take a number of steps to increase the opportunities for entrepreneurs, both foreign- and native-born, in an effort to accelerate expansion of the US economy and creating jobs. However, the President is currently resisting administrative changes and has said that only Congress can fix the broken system.

One way or another, there must be some changes to the immigration system, either Band-aids or a cure. Regrettably, this optimist expects some Band-aids but continues to hope for a cure.