The long-awaited bipartisan Senate border policy and national security deal was finally unveiled Sunday, but the bill’s text did little to move the political needle in its favor.
The legislation’s contents did provide some surprises, however, after four months of speculation during closed-door negotiations.
Here are five things to know about the proposal:
It doesn’t really ‘shut down’ the border
If there’s one thing this bill will be remembered for, it’s that it made President Biden change his tune on immigration.
Biden pledged to “shut down” the border if given the authority to do so late last month, as talks were drawing to a close and pressure was growing on negotiators to release a working product.
While the phrase means different things to different people, it was clear from the context of his remarks that Biden meant it as the authority to stop processing asylum applications.
The Senate proposal would give him just that: It would create a border emergency authority that allows the secretary of Homeland Security “to summarily remove from and prohibit, in whole or in part, entry into the United States” foreign nationals who enter between ports of entry.
That authority would be optional if the cumulative seven-day average of Border Patrol encounters is between 4,000 and 5,000 a day and mandatory if the average exceeds 5,000. The mandatory authority would also kick in after any single day with more than 8,500 encounters.
During that time, U.S. border officials would summarily expel most migrants encountered between ports of entry, with exceptions for minors and U.S. obligations under the Convention Against Torture.
Border officials would also be obligated to process at least 1,400 asylum requests at ports of entry during an emergency.
But the exceptions and processing requirements were not enough to bring Biden’s left flank into the fold; advocates say the entire concept of substituting asylum for quick expulsions — even in a pinch — is pure Trumpism.
Leah Greenberg, co-founder and co-executive director of Indivisible, said the group “opposes bringing back failed Trump-era immigration policies, and we oppose handing a future Republican president new powers to inflict their cruel agenda on migrants and asylum seekers.
“These policies will not address the humanitarian concerns and challenges at the border, but instead will double down on an ineffective and dangerous enforcement-only approach,” Greenberg said.
It could make a huge difference for some immigrants
One of the measure’s big surprises is that it addresses a number of glaring holes in immigration law.
At the top of the list are “documented Dreamers,” people who have grown up in the United States, brought legally by parents on work visas.
Under current law, documented Dreamers age out of their parents’ visa umbrella when they turn 21 and often become deportable even if they have applied for permanent residence because of processing backlogs.
The bipartisan bill would extend the parents’ visa deportation protections for documented Dreamers who have been dependents of a visa holder for at least eight years.
It also expands work permits for spouses and children of work visa holders and a number of permanent residency applicants who are immediate relatives of a U.S. citizen.
Those measures could be life-changing for the affected immigrants, many of whom are Indian nationals stuck in a loop where their work visa protections expire, but no permanent residency slots are available.
The bill also speeds up naturalization for foreign nationals who have been honorably discharged from the U.S. military.
But it would change very little for others
If Indian nationals are the immigrant group most benefited by the bill, Mexicans get the short end of the stick.
About half of the 10 million undocumented immigrants in the United States are Mexican, and about 62 percent have lived in the United States for more than a decade, according to the Migration Policy Institute.
That population has been at the center of the immigration reform conversation for decades. The last true comprehensive immigration reform bill in 1986 is best known for its amnesty provisions that prompted about 3,000,000 people to apply for permanent residency.
But the Senate deal was never meant to be comprehensive immigration reform — the biggest gripe from the left was fear that it would harden immigration enforcement without providing any relief.
“I’m not going to claim that this bill is comprehensive immigration reform. This bill is a compromise. It does not include things that Democrats still believe are moral imperatives, like providing a pathway to citizenship for undocumented Americans,” Sen. Chris Murphy (Conn.), the head Democratic negotiator, told reporters Sunday.
“But it also does not include many Republican priorities. There is no expansion of expedited removal in this bill. There is no increased detention authority. There’s no transit ban, there’s no return of Title 42,” added Murphy.
The proposal also avoided provisions regarding Dreamers — undocumented immigrants brought to the country as minors — and farmworkers, two groups that comprehensive immigration reform advocates have highlighted as deserving of a path to citizenship.
It would make asylum tougher but faster
Aside from the emergency shutdown powers, the negotiations zeroed in on how migrants use asylum claims to remain in the United States.
“It raises the screening standard for asylum claims to make sure that people who apply for asylum are the ones that are likely to get it. It gives near-immediate work permits to asylum-seekers so that we won’t have migrants who can’t work, sleeping on the streets or crowding homeless shelters,” said Murphy.
The screening standard would change from initiating asylum applications for people with a significant possibility of persecution to an asylum officers’ determination that each prospective asylee has a reasonable possibility of attaining asylum status.
The reasonable possibility standard would make it more difficult for many, if not most, migrants to make an asylum case.
But the bill would also increase funding for United States Citizenship and Immigration Services (USCIS), which processes asylum claims, work permits, immigrant status and naturalizations, and would make it that agency’s exclusive purview to conduct initial screenings, freeing the Border Patrol for other duties.
The bill would give $6.7 billion to Customs and Border Protection, the Border Patrol’s parent agency, $7.6 billion to Immigration and Customs Enforcement and $3.99 billion to USCIS.
The latter is significant because USCIS is mostly fee-funded, a framework that’s fueled the backlogs that have the immigration system in shambles.
In all, the bill’s proposals would make for fewer asylum applicants receiving faster adjudication with better access to counsel, if they work as advertised.
And the bill includes other pathways for some migrants to apply to enter the United States — including provisions from the Afghan Adjustment Act and 250,000 new visa slots — though it does not overhaul the entire immigration system.
“You cannot fix the issue at the border without creating more legal pathways for people to come to the United States,” Murphy said.
It’s probably doomed
The bill was already used for political target practice when its contents were secret, and now detractors are pulling it apart bit by bit.
Sens. Bob Menendez (D-N.J.) and Alex Padilla (D-Calif.) called out the end product as a reflection of the closed-doors process that excluded the Congressional Hispanic Caucus (CHC).
“After months of a negotiating process that lacked transparency or the involvement of a single border-state Democrat or member of the Congressional Hispanic Caucus, it is no surprise that this border deal misses the mark,” Padilla said in a statement.
On the right, the blowback was immediate and directed at Senate Minority Leader Mitch McConnell (R-Ky.), who could be risking his position with the deal.
Sen. Mike Lee (R-Utah) flat-out called for new Republican leadership in the Senate.
“I cannot understand how any Republican would think this was a good idea — or anything other than an unmitigated disaster. WE NEED NEW LEADERSHIP — NOW,” Lee wrote on X, the platform formerly known as Twitter.
GOP Senate opposition intensified in large part because the bill was nowhere near as harsh as expected, raising the hurdles in that chamber.
In the House, Speaker Mike Johnson (R-La.) reiterated his opposition to the legislation, almost certainly dooming the effort, which seems to be falling short both on the Republican and Democratic sides of the aisle.
But one progressive CHC member, in the throes of a Senate race that could determine the next majority, came out in favor of the measure.
Rep. Ruben Gallego (D-Ariz.) touted the bill, which includes provisions he proposed as standalone bills dealing with laundering of fentanyl profits and funding emergency services at the border.
“I firmly believe this compromise supports Arizonans and protects both our national security interests and those of our Israeli allies and Taiwanese and Ukrainian partners,” said Gallego, who is running to replace Sen. Kyrsten Sinema (I-Ariz.), a lead negotiator on the deal who has not yet said if she is running for reelection.