Immigration in the 118th Congress: Is There Common Ground?
February 3, 2023
The 118th Congress is split between a Democratic-controlled Senate and a Republican-controlled House. Despite the American public’s strong support for immigration reform, congressional leaders on both sides are unlikely to see eye to eye on federal immigration policy.
The divide between both parties on the issue is wide, with the conservative Republicans focused on enforcement, particularly on the border, and the Democrats looking to provide legal protection for particular immigrant groups, such as undocumented youth and agricultural and other essential workers.
Despite this gap, it is worth examining if there is room for compromise, or common ground, on the issue, at least substantively if not politically. At the end of the day, the chance that a compromise bill would be considered on the floor of the House or Senate is not high, as the filibuster rule could prevent an up or down vote in the Senate and conservative Republicans would block any votes in the House.
However, policy proposals that stalled in the last Congress could provide a basis for negotiation in the new one.
Distinct immigration agendas
Republicans in the House would likely pass enforcement-only legislation, including such items as increased border funding (including the construction of a border wall) and the expansion of border enforcement mechanisms, such as Title 42, expedited removal, the Remain in Mexico policy, and even arbitrary closures of the border.
They also would look to eviscerate asylum rights by streamlining the process and raising the threshold for meeting a credible fear test, among other proposals. And, of course, they will use hearings to attack the Biden administration on its border policies.
Some Republicans in the House have also signaled that they plan to target non-profit groups, including faith-based groups that meet the basic needs of immigrants. This is not a new idea. In 2005, the House passed enforcement-only legislation to criminalize the provision of basic needs assistance to undocumented persons, even though there was and remains no requirement for charities to check a person’s immigration status.
The proposal would have placed priests and women religious, as well as faith-based service providers, in legal jeopardy simply for following the tenets of their faith. Does the House Republican leadership really want to be seen as bullying nuns who are practicing their faith?
For their part, Democrats would likely accept an increase in border funding, but hopefully reject any codification of Title 42 or other restrictive policies. They also should play offense by re-introducing proposals from the 117th Congress that drew bipartisan support. If a compromise can be cobbled together, it would likely start in the Senate.
Undocumented youth. Perhaps the most vulnerable groups of immigrants in need of protection are undocumented youth, particularly those who have received Deferred Action for Childhood Arrivals (DACA) and the wider population eligible for the DREAM Act of 2021. The DACA program is being attacked in the courts. If found unconstitutional, DACA recipients would be vulnerable to deportation.
The DREAM Act of 2021, introduced by Senators Richard Durbin (D-IL) and Lindsey Graham (R-SC), would help prevent this drastic scenario by placing as many as 2.2 million young persons on a path to citizenship.
According to CMS, the beneficiaries of the legislation are already highly integrated, with 95 percent with at least a high school education, 86 percent speaking English very well or fluently, and 80 percent with an annual income above the poverty line. CMS also estimates that 45 percent have lived in the United States fifteen years or longer. 
Farm workers. Another bill to protect a vulnerable group is the Farm Workforce Modernization Act, introduced in the House of Representatives on a bipartisan basis, with 13 Republicans cosponsoring the legislation and 30 voting for it on the House floor. The bill would streamline the H-2A agricultural worker recruitment process and provide a path to citizenship for certain agricultural workers.
Proponents of the legislation include immigration and farm worker rights groups, as well as agricultural business groups, which depend on immigrants to harvest and process food. CMS has estimated that as many as 343,400  agricultural workers could earn permanent residence under the bill. CMS also found that over half of the undocumented agricultural workers who would attain legal status under the legislation have lived in the United States fifteen years or more. 
Other bills introduced by Democrats in the last Congress include the Jumpstart the Legal Immigration System Act, which would recapture unused green cards and allow US residents to access them, thus reducing visa waiting times. Another provision would update the “registry deadline” on a rolling basis, allowing 8.5 million persons to adjust to permanent resident status. Since these are not bipartisan bills, it may be difficult to include them in a compromise package.
Senate Framework. At the end of the 117th Congress, Senators Kyrsten Sinema (I-AZ) and Thom Tillis (R-NC) attempted to fashion a framework for an immigration compromise, but it failed for lack of time and support. The framework included a path to citizenship for undocumented youth and $25 billion in border security funding, along with a year-long extension of Title 42 and an expedited asylum process. Despite its failure, it may represent the basis for compromise legislation in the new Congress.
Both the DREAM Act of 2021 and the Farm Work Force Modernization Act would be candidates for inclusion in the framework, but it also could include changes to the US asylum system, which are opposed by many immigration advocates, and border enforcement enhancements.
The question, of course, is what those changes might be and whether they can garner 60 votes, including at least nine Republicans, to support any compromise. And, of course, would House Republican leadership act on any compromise originating in the Senate? This would require the House leadership to override the strong objections of conservative Republicans and use Democratic votes to pass the legislation, which is not likely.
Nevertheless, it would be important for the Senate to show leadership and pass a compromise bill, if only to demonstrate to the American public that it can be done and to shine a light on the elected officials who are blocking progress on immigration reform.
Biden administration enforcement actions. Another factor that could influence Congress is how the Biden administration handles border enforcement, as the US-Mexico border will remain a focal point of the national debate.
As we saw in the Obama administration, record deportations did not satiate some Republicans, but encouraged them to continue calling for more enforcement. In fact, CMS has found that mass deportations hurt mixed-status families and can cause undocumented immigrants to stay in the United States longer. 
Should Biden continue to use Title 42, for example, it would only weaken his base without necessarily increasing his leverage with Republicans in Congress. Instead, a more orderly process for handling asylum claims should be devised and implemented, including the hiring of more immigration judges and the availability of legal representation for immigrants, to help the system operate more efficiently.
With a divided Congress, the chances for passage of a multi-faceted immigration bill are slim. Republicans in the House are expected to continue to use immigration as a wedge issue and run on it in the 2024 elections.
In the Senate, however, there are elements of a compromise bill that could garner substantial support, which would at least put pressure on the House leadership and moderate Republicans to consider and engage the issue in a positive way.
 Donald Kerwin, Jose Pacas, and Robert Warren. 2021… “Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Populations Eligible for Special Legal Status Program and Legalization under Pending Bills,” Journal on Migration and Human Security 10 (1): 37-76.
 Id, p. 47.
 Raquel Rosenbloom. “A Profile of Undocumented Agricultural Workers in the United States.” Center for Migration Studies of New York, August 30, 2020. https://cmsny.org/agricultural-workers-rosenbloom-083022/
 Donald Kerwin, Daniela Alulema, and Mike Nicholson. 2018. “Communities in Crisis: Interior Removals and their Human Consequences,” Journal on Migration and Human Security, 6 (4).
February 3, 2023