President Biden campaigned on a promise to legalize millions of long-term undocumented immigrants. For three years, he has managed to deflect criticism for failing to deliver by pointing to the divided Congress.
Now, activists are pressuring him to use his authority to protect this essential workforce. The question is whether he can do so without strengthening his MAGA opposition, which thrives on “open borders” hysteria. Should he even try, given the likelihood of litigation? The answer is yes. With creativity and moderation, he can outmaneuver the xenophobic wing of the Republican Party.
On Nov. 13 and 14 in Washington, D.C., a coalition of immigrant rights groups, business owners, Republican and Democratic officials and immigrants themselves plan to urge Biden to open the door to work permits for millions of people who’ve lived here for decades. They want him to grant them parole, as he did for hundreds of thousands of new arrivals from Venezuela, Cuba, Haiti and Nicaragua.
The “Here to Work” campaign is focused on the nation’s dire labor shortage, such as in manufacturing, retail and healthcare. Small businesses don’t have resources to sponsor workers from overseas; they want to be able to hire legally from among the 11 million immigrants who are already here. Many of those people don’t take some jobs because they require driving through immigration checkpoints. Others don’t apply for jobs because they require proof of work authorization.
Existing law, section 212(d)(5)(A) of the Immigration and Nationality Act, lets the federal government admit people temporarily into the country on a case-by-case basis if there’s “significant public benefit” or for “urgent humanitarian reasons.” The American Business Immigration Coalition (ABIC), which is leading the campaign, hopes Biden will use that parole authority to strengthen the workforce.
Some veterans of the battle for legalization believe the campaign is untimely, as GOP-led states have sued to stop Biden’s existing use of parole and Republican lawmakers are threatening a government shutdown unless Congress agrees to extreme anti-immigrant measures, including significantly reduced parole.
It’s hard to imagine a more hostile environment for Biden on immigration with Fox News beating the drum daily about border crossings, which are at historic highs. And some attorneys are skeptical of the plan’s ability to survive a lawsuit, pointing to the failure of President Obama’s Deferred Action for Parents of Americans (DAPA), which was blocked by a judge before anybody could apply. This “Here to Work” program would be much broader in scope than DAPA. The more narrow Deferred Action for Childhood Arrivals (DACA) for Dreamers survived for a while, but has since been blocked and is on its way to the Supreme Court.
Deferred action is not the same as parole, of course. A more similar program is existing parole for immigrants who are immediate relatives of military members and veterans. Vice President Kamala Harris proposed using parole to protect Dreamers while running for president in 2019. The following year, a prominent immigration restriction think tank warned that it would be “next to impossible” to beat her plan in court. But courts’ interpretations of parole’s “case-by-case” requirement suggests that the bigger the group of beneficiaries, the more of an uphill legal battle a program would face.
By asking Biden to wave his wand and grant work permits for all, advocates may be inadvertently repeating a decades-long pattern of asking for staggering changes at the expense of incremental progress. The all-or-nothing approach has never worked.
Seeking work permits instead of citizenship still means asking Biden to unilaterally shield 11 million people. Advocates might have a more viable case if they focus on protections for a subset of the population that has bipartisan support, such as Dreamers, farmworkers or the undocumented spouses of U.S. citizens.
The campaign is, in fact, giving special attention to mixed-status families, inspired by the bipartisan American Families United Act, introduced by Rep. Veronica Escobar (D-Texas). Escobar is gathering signatures on a letter urging Biden and Homeland Security Secretary Alejandro Mayorkas to parole spouses of U.S. citizens to keep families together. “This is a foundational aspect of our American values,” she told me.
The campaign’s broader demand of “work permits for all” is less strategic. It could provide unnecessary fodder for MAGA propagandists, while hurting Biden among progressives who will think he’s refusing to help. But these broad demands reflect understandable desperation within the long-neglected undocumented community.
One woman who is flying from California to Washington to participate in the campaign’s Nov. 14 rally is a 34-year-old licensed nurse who came here from Mexico with her parents when she was 16. She worked in a trauma center while training as a nurse at the height of the pandemic. But since getting her education, she’s been unable to work in a hospital because she doesn’t have papers. She lives with the anxiety of being forcibly separated from her three U.S.-born children. “The fear that you can get deported and lose your kids is always there,” she told me, breaking into tears.
One way Biden could move forward is to design a program that allows states to opt in or opt out of parole for undocumented residents in struggling sectors. This idea, which the campaign is floating, could deny legal standing to Republican-controlled states to challenge the plan and sue to get an injunction.
Last month, Gov. Gavin Newsom signed a bill that authorizes him to work with the federal government to protect farmworkers from deportation using parole based on “significant public benefit.” Other states with labor shortages should follow California’s lead. Even Republican Govs. Greg Cox of Utah and Eric Holcomb of Indiana have called for state-specific immigrant work permits. Biden could start with farmworkers in California and certain workers in other states, and then create a parole program for Dreamers and the undocumented relatives of U.S. citizens.
In the meantime, immigrant rights groups have time to refine their messaging. They can’t put everything on Biden. The coalition’s business members have clout in Congress. They should pressure Republican lawmakers to support stand-alone bipartisan bills for Dreamers, farmworkers and other popular groups.
The Senate’s Democratic leaders — including Majority Leader Charles E. Schumer of New York, Judiciary Committee chairman Richard J. Durbin of Illinois and Alex Padilla of California, who chairs the Judiciary subcommittee on immigration — should also be speaking for these groups in the upcoming negotiations over a government shutdown. Why not force the Senate to take votes on these limited immigration measures? It’s time for everybody to work together and stop punting responsibility.