As Congress wrestles with another government funding deadline of February 8, 2018, Senators John McCain (R-AZ) and Christopher Coons (D-DE) have announced their intent to introduce a bill to provide permanent relief for undocumented immigrants brought to the United States as children. The bill, which is expected to mirror a measure introduced last month in the House by Congressmen Will Hurd (R-TX) and Pete Aguilar (D-CA), would provide permanent residence and a path to ultimate citizenship for beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program terminated last September by President Trump.  DACA is scheduled to end on March 5, 2018.

The House bill, Uniting and Securing America Act (USA Act), has 54 co-sponsors evenly split between party lines. The bipartisan bill would create a renewable eight-year conditional permanent resident status that would allow DACA recipients (a/k/a DREAMers) to be protected from deportation; work legally in the United States; travel outside the country; and apply to be lawful permanent residents (green card holders) if they meet certain requirements.  In view of the expected parity with the House bill, the summary below is based on the USA Act’s provisions.

Conditional Permanent Residence Under USA Act

To qualify for conditional permanent resident status, DACA recipients would need to meet the following conditions:

  • Establish that they came to the United States before the age of 18 and have continuously lived here since December 31, 2013;
  • Pass government background checks, demonstrate “good moral character” with no felony or multiple misdemeanor convictions and register for the Selective Service (if applicable);
  • Meet one of the following requirements:
    • Have been admitted to an institution of higher education;
    • Have earned a high school diploma or equivalent; or
    • Be enrolled in secondary education (high school) or an equivalent; and
    • Pay an application fee.

Permanent Residence Under USA Act

Conditional permanent residents could apply to have the conditional basis of their status removed if they meet the following conditions:

  • Maintain continuous residence in the United States and pass government background checks;
  • Complete one of the following three avenues to permanent status:
    • Have graduated from an institution of higher education or completed at least two years in such an institution;
    • Have served honorably in the military for at least the period of time the individual was obligated to serve; or
    • Have been employed for periods totaling at least 3 years and at least 80 percent of the time that the individual has had valid employment authorization, except periods during which the individual was enrolled in school;
  • Demonstrate an ability to read, write and speak English and an understanding of the fundamentals of the history and of the principles and form of government of the United States; and
  • Pay an application fee.

The Department of Homeland Security (DHS) would provide permanent resident status without conditions to any individual who has already fulfilled these requirements at the time he or she applies for residence under the USA Act. Individuals granted permanent residence, conditional or otherwise, under the new law would be exempt from the annual numerical limitations on visa numbers.  Time spent as a conditional permanent resident would count toward the residence requirement for naturalization, except that one may not apply for naturalization until the conditional basis has been lifted.

Border Security Under USA Act

The bill would direct DHS to develop a strategy for situational awareness and operational control of the border by 2020. The bill would provide a $110 million annual grant for five years to improve coordination between border-patrol agents and state and local law-enforcement officials.   As introduced the bill provides no funding for a border wall.

Immigration Court Backlog Under USA Act

The bill would increase the number of immigration judges by 55 each year from fiscal years 2018 through 2020, along with necessary support staff, to reduce the immigration court backlogs, which currently stands at about 660,000 cases. The bill would also increase the number of Board of Immigration Appeals staff attorneys by 23 each year from fiscal years 2018 through 2020, along with necessary support staff.

Reality Check

Despite the significant bipartisan support for the USA Act in the House, it is unlikely to gain traction in either the House or the Senate without addressing the demands included in the Framework for Immigration Reform and Border Security issued by the White House on January 25, 2018. To garner White House support any immigration measure must include, in addition to a DACA fix, substantial funding for the border wall, termination of the diversity lottery program and elimination of what the White House characterizes as “chain migration.”

In a Monday morning tweet apparently directed at the McCain-Coons announcement, the President wrote, “Any deal on DACA that does not include STRONG border security and the desperately needed WALL is a total waste of time.” The President continued, “March 5th is rapidly approaching and the Dems seem not to care about DACA. Make a deal!”

What Does This Mean for Employers?

It seems more and more likely that DACA relief will be decoupled from the efforts to keep the government open until March. Senate Majority Leader, Mitch McConnell (R-KY) promised to allow debate on DACA legislation in order to end the three-day government shutdown last month. With that promise in hand, Democrats are not likely to vote to shut the government down again. That said, the March 5th DACA deadline, when DACA recipients will start to lose their employment authorization and their jobs, is looming large. Employers of DACA recipients should keep a close eye on developments and keep their employee hotlines open.