Comparing Biden's Proposed Amnesty to the Legalization of the 1980s

By David North on February 5, 2021

How does the proposed Biden amnesty for illegal aliens compare with the nation's only full-scale legalization program, the Immigration Reform and Control Act (IRCA) of the 1980s?

First, and foremost, the concept of control or enforcement is totally missing, as my colleague, Mark Krikorian, has pointed out.

Second, it would be a much larger program, covering virtually everyone in illegal status, a group of some 11 million, as opposed to the roughly three million who secured legalization in the earlier program.

Third, the proposed program, like IRCA, is a multi-part entity, putting some populations on the road to citizenship more quickly than others.

I saw a lot of IRCA because the Ford Foundation asked me to monitor it, which I did for the better part of two years, both here in Washington and in a number of states from here to California. I also had some contact with the main authors of the program in Congress, Sen. Alan K. Simpson (R-Wyo.) and Rep. Roman Mazzoli (D-Ky.). The staff and the leadership of the old Immigration and Naturalization Service were very cooperative in our research. (The report, published in 1989, was entitled "The U.S. Alien Legalization Program". Another 1989 report I co-authored on IRCA was “Decision Factories: The Role of the Regional Processing Facilities in the Alien Legalization Program,” for the Administrative Conference of the United States.)

I am basing the following comments on a document headed "1/14/21 STAFF DRAFT - PENDING REVIEW & APPROVAL", which presumably reflects the new administration's thinking of that date, and which may have changed since then. It is a 59-page section-by-section summary of the proposed "America's Citizenship Act of 2021" (ACA/21). A shorter fact sheet on the bill was briefly posted the White House website and has since disappeared; we preserved it here.

Fraud. In the earlier program, fraud was rampant and largely out of control, notably in the part of the program that dealt with farmworkers. It turned out that an alien could game the Special Agricultural Worker (SAW) part of the IRCA program much more easily than the other provisions of the act. Toward the end of the program, INS largely gave up any real effort to deny fraudulent SAW applications, as I noted in an analysis I did for CIS several years ago.

If the proposed bill is passed with the current language intact, fraud will not be a problem this time around.

Is that because we are now dealing with a better class of illegal aliens? Not at all. The difference will come because there will be no need for fraud, as virtually every unauthorized alien in the nation will be eligible for getting on the road to citizenship.

Under the main provision of IRCA, which was signed into law by President Reagan on November 6, 1986, an applicant had to prove residence in the nation since January 1, 1982; much of the illegal alien population had arrived after that date. The requirements were looser for the SAW applicants.

In contrast, in the proposed bill, only the illegals who have arrived since January 1, 2021, will not be eligible, so few will be tempted to file fraudulent applications.

So, on one hand, there will be a cleaner, easier process this time, but at the cost of adding 11 million people to our legal population, all without an enforcement program that would prevent the arrivals of millions more illegals.

Some Noncitizens Are More Equal than Others. The ACA/21 proposal establishes two major classes for legalization purposes. All who were here on January 1, 2021, are eligible for lawful prospective immigrant status (LPI), which puts one on an eight-year-road to citizenship. Those in the other group, of which there are three subclasses — agricultural workers (legal or illegal), Deferred Action for Childhood Arrival (DACA), and Temporary Protected Status (TPS) — can secure lawful permanent resident (LPR) status, that denoted by the holding of the green card. The latter benefit (LPR) is better than the former one (LPI) and can lead to citizenship in five years.

Let's look at the different requirements for the three subprograms, and note how the handful of aliens who managed to enlist in the military are treated — or how symbolism in this provision prevails over common sense

Agricultural Workers. Government routinely bows to the interests of Big Agriculture; there is, after all, what appears to be a permanent flaw in our democracy: the over-representation of rural America in the Senate. So it is no surprise that there is a special section (1105) of the proposed bill for farmworkers, just as there was with IRCA.

The relevant section, 245F(a) states:

Requirements for Adjustment of Status Under This Section. Permits the Secretary [of Homeland Security] to adjust to LPR status a noncitizen who meets the eligibility criteria set forth in new INA [Immigration and Nationality Act] section 245G(b), including criminal and national security background checks and payment of applicable fees, submit [sic] an application pursuant to procedures set forth in section 245G(c) and has performed agricultural labor or services for at least 2,300 work hours (or 400 work days) in the five-year period immediately preceding the date on which such noncitizen [sic] file the application.

The 2,300 hours or 400 days requirements in five years are interesting in themselves. Five years have 1,826 days; 400 is 21.9 percent of the total. The number 2,300, when divided by 400, produces workdays of five hours and 45 minutes each, a concept new to me. Setting the working day at that length, and the total number of days to 21.9 percent of those available suggests a minimal standard, designed to make as many people eligible as possible.

This is the only provision in this bill that moves a population directly from totally illegal status to that of LPR . This will be welcomed by ag interests, but the chances are that many farmworkers, once they have legal status, will move on to other kinds of work.

TPS. Temporary Protected Status is granted to illegal aliens of a given nation when they happened to be in the U.S. when something terrible happened to the home nation, such as an earthquake in Haiti, or a revolution in South Sudan. The idea is that we should not deport anyone back to those nations under those conditions. In administrations prior to that of Donald Trump, TPS status was continued, usually at 18-month intervals, time and time again, long after the storm or rebellion was gone.

The ACA/21 bill proposes in Section 1104(a) that all in TPS status, or eligible for it, on January 1, 2017, be eligible for conversion to LPR status. Presumably, the handful of TPS aliens who filed new applications for that status during the Trump years would be eligible to become LPIs.

DACA. At first glance, the requirements for DACA recipients to move on to LPR seem to be numerous, but once you examine them they constitute a "you all come" situation. One must meet an education or work requirement, or be the spouse or child of someone who does, or secure a waiver. A DACA applicant would need a serious criminal record, or fail to apply, to not get a green card under the proposed rules.

I cannot tell from the outline whether one must be in DACA status at the time of the application to be eligible for the green card; we have noted that there has been a substantial reduction in the size of the DACA population because of non-renewals in recent years; in fact, there were 172,000 dropouts as of late 2019.

Whether the dropouts will face extra hurdles is not clear, but two other elements are perfectly clear: DACA recipients are now eligible to work for Congress, and to receive tax "credits and subsidies under the Affordable Care Act".

Symbolism and the Military. The proposed legislation preserves the fiction, first created by the Obama administration, of DACA recipients in the military, now giving such persons green card status. As we pointed out earlier, it is hard for an illegal alien to enlist, and if they do, and serve honorably, they have had, all along, a much better reward in the immigration law than DACA status.

We once filed a FOIA request about the number of DACA applicants who had claimed military service in their applications and were told that the responses to this part of the form were not even counted by DHS.

But the proposed law, in Section 245D(b)4(B), still offers a green card to DACA recipients who have served two years and have honorable discharges.

Implementation. I will be curious to see if this administration does what the Reagan administration did with IRCA, if there is another legalization. The old INS, then run by the now late Alan Nelson, created a nationwide network of legalization offices, so that aliens would not be visiting the enforcement-oriented set of INS offices. Will that happen again?

Because of IRCA, INS created four regional centers to centralize the decision-making; these centers remain today for all sorts of other decision-making and will surely play a role in the next legalization effort, should it, or some parts of it, become the law of the land.