The Sinema-Tillis Immigration Proposal

Senators Kyrsten Sinema (I-AZ) and Thom Tillis (R-NC) have recently proposed a bipartisan immigration bill to protect Dreamers from deportation, ensure availability of immigrant visas, and improve the processing of migrants at the United States southern border during the lame duck session. 

Currently, immigration issues are contentious across the country, making it imperative that Congress acts immediately to enact these safeguards. The Senators’ proposal includes solutions to manage increased migration in border regions effectively in a way that upholds humanitarian values. The following sections discuss the solutions in the proposed bill. 

Protection for Dreamers

There are more than 2 million young undocumented immigrants in the United States who are often called “Dreamers.” Most Dreamers are protected under the Deferred Action for Childhood Arrivals (DACA) program, which was established in 2012 through executive action by President Barak Obama. However, on July 16, 2021, a federal court ruling has put those at risk for deportation that have not yet applied to be a part of DACA, which prohibits DHS from granting initial DACA requests and related employment authorization. 

The proposal offers a limited pathway to citizenship called “Conditional Permanent Residence” (CPR) for the estimated 2 million Dreamers who have lived in the United States since June 15, 2018, and who were under the age 18 when they entered and no older than 38 on June 15, 2012. However, it does not provide relief for recipients of Temporary Protected Status. It is important to note that the educational, financial, character and criminal eligibility requirements are not yet known and will significantly impact who benefits from this proposal.

This limited pathway creates a two-tiered system of legal permanent residency, where individuals with CPR have limited access to established aspects of holding a Green Card. However, after receiving CPR status, they will eventually be able to obtain a Green Card and become a U.S. Citizen. The timeline for obtaining those steps is unclear but is likely at least a decade. Individuals with CPR would be required to continuously maintain eligibility requirements to renew until their naturalization.

One of the limitations with this proposal is that a Dreamer with CPR status would be prohibited from sponsoring others for immigration benefits, aside from his or her spouse and children. Another limitation is if a Dreamer with CPR wishes to naturalize, he or she must apply through the CPR process and not existing naturalization avenues that may be faster with fewer restrictions (such as based on marriage to a U.S. citizen). 

Immigrant Visas

Since the COVID-19 pandemic, U.S. Citizenship and Immigration Services (USCIS) has faced a tremendous backlog on visa application processing due to the limited annual availability of immigrant visas and layoffs within the agency. To address this issue, the proposal suggests recapturing previously allocated, but unused, employment-based immigrant visas. 

Several immigrant visas have gone unused since 1992 in both employment-based and family-sponsored immigrant categories. These immigrant visas primarily go unused by the end of the fiscal year due to bureaucratic delays. Recapturing these unused immigrant visas is consistent with Congressional intent to ensure that all allocated visas are fully utilized. 

The Immigration and Nationality Act (INA) section 201 was designed to allow for unused immigrant visas in the family category to spillover the following fiscal year to employment-based category and vice-versa. However, due to a technical error and outdated language in the statute, unused employment-based immigrant visas cannot spill over to a family and are forever lost or “incinerated.” The proposal would fix the incinerator problem ensuring that all Congressionally allocated visas are available until used and recaptures some of the previously incinerated visas. However, the proposal does not include the recapture of previously lost family-sponsored immigrant visas, nor will it ensure that unused family-sponsored immigrant visas remain for use by families.

A limitation to this proposal is that the scope of the recapture is unclear (it estimates a range from 150,000-200,000 visas), as to whether it will recapture the full extent of unused employment-based visas dating back to 1992 as has been proposed in bills such as section 3101 of the U.S. Citizenship Act of 2021 (H.R. 1177/S.348) or whether it will be a more limited recapture as proposed by Senator Thom Tillis in the Preserving Employment Visas Act (S.2828).

Border Management and Security

Recently, a federal judge ordered that Title 42, a Trump Administration public health order that has been used to expel a majority of migrants at the border due to the pandemic, is to come to an end on December 21, 2022. The termination of Title 42 will likely cause the situation at the border to worsen without a viable plan in place. This section of the proposed bill has a varying effect on immigrants.

The following border management and security proposals from the bill will have a positive effect on immigration:

• Increasing tough border security measures in an effort to increase the speed and efficiency of migrant processing at the border. It proposes making investments in border security, surveillance and other infrastructure and personnel, including the addition of 25,500 Border Patrol agents and at least 600 officers at ports of entry. It also includes establishing border centers, which is supposed increase the speed and efficiency of migrant processing and provide humanitarian assistance. 
• Investing in digital systems that have the potential to improve communication between the different agencies that handle immigration, as well as increase access to information for the migrant. 
• Providing additional funding for USCIS asylum officers, which should alleviate USCIS’ backlog of asylum cases.

The following border management and security proposals from the bill will have a negative effect on immigration:

• Creating a new expulsion policy modeled after Title 42. This expulsion policy will severely undermine fair and meaningful access to legal relief for asylum seekers and other migrants. Although the proposal anticipates terminating the expulsion policy at the end of a certain fixed period, the requirements for ending the program may never occur, thus creating an indefinite policy blocking asylum seekers at the southern border. 
• Possibly including asylum processing at the border with expedited timelines. This will hinder due process, including restricting meaningful access to counsel, which is essential to fair proceedings. This is because expedited timelines result in lower representation rates since it doesn’t provide enough time for an attorney to represent an asylum seeker and uncover the trauma at the core of their client’s asylum case. 
• Imposing a lifetime bar on immigration benefits if a migrant willfully fails to appear in immigration court. While compliance with court appearances is necessary, a lifetime bar is extremely severe. Such a penalty has been widely acknowledged as unworkable and unfair, and it also implicates serious due process concerns. 
• Imposing mandatory detention upon people who enter between ports of entry. Not only will this be operationally challenging, the potentially dramatic increase in the detained population will lead to prolonged lengths of stay, increase the risks of migrants falling ill or dying in custody, and subject migrants to additional trauma, including survivors of gender-based violence. Mandatory detention will severely undermine fair access to asylum and legal relief because migrants will be held in geographically isolated areas away from attorneys or legal service providers. This will also compound existing delays in the asylum process and decrease the likelihood of an asylum grant. Moreover, it will drastically increase the cost to expand prolonged detention. 

With the congressional session coming to an end, it will be interesting to see if this proposed bill will pass, and if so, how it will be implemented. If you have any immigration questions, please contact Berardi Immigration Law today. We would love to hear from you!