Beatriz knows that the piece of paper she was given by her employer, certifying her as a critical worker, is not what makes her essential. “I know they say now we’re essential, but we always have been, because we’ve always brought the food to people’s tables. If it wasn’t for us, right now there would be no food,” she said.
Like hundreds of thousands of others around the country, Beatriz is risking her own safety to perform vital work during the Covid-19 pandemic, all without legal immigration status. She came to be in such a situation by an odd twist of fate: While she was in the United States on a tourist visa in 2008, she said, she got a call that her sister in Mexico urgently needed heart surgery and had no money to pay for it. Faced with a choice between returning and making $7 a day or remaining and earning more than that in an hour, she chose to overstay her visa and work in New York State’s sprawling agriculture industry.
In addition to her work cultivating apples, she volunteers taking food and personal protective equipment to community members who need it, increasing her risk of exposure. Yet as things stand now, and even with her officially recognized position as an essential worker, she has no path to any kind of legal status. This is not a new problem, but stories like hers have prompted a push for a mass regularization program—an opportunity to legalize their status—for undocumented essential workers.
But what would this actually look like? Immigration policy is nothing if not complex—just ask any immigration lawyer to explain any seemingly simple legal concept. Small differences in eligibility criteria or evidentiary requirements could yield vastly different outcomes. In other words, the moral case for such a program is straightforward. The path there is snaking, multipronged with competing visions, and dotted with pitfalls.
Whenever it is we emerge from our current interlocking catastrophes, a real conversation around a program of widespread regularization would have to grapple with concepts in tension. The issues at hand are material but also existential. What exactly constitutes an essential worker? Is it only those whose jobs have been formally recognized by the Department of Homeland Security as critical, as is the case for Beatriz? Or would someone like Emilio, a hotel maintenance worker who moonlights as an Instacart delivery worker and disaster relief volunteer, qualify?
Emilio is a one-man experiment in the limits of the essential worker classification. His primary job involves painting rooms and moving furniture at a large hotel in Panama City Beach, Florida, a tourist destination that recently reopened and immediately received a torrent of visitors. His side gig, Instacart, involves delivering groceries—often, he says, for people who may not otherwise be safe shopping, such as the elderly and immunocompromised. In his spare time, he volunteers with Resilience Force, a nonprofit that works to organize disaster response and rebuilding, and which counts immigrants as a large part of its volunteer base.
A decent argument could be made about the cruciality of each of these tasks individually. Without the hotel work, the businesses that keep the local economy afloat couldn’t function; the grocery delivery work gets necessities to vulnerable people; and the nonprofit work involves distribution of food and PPE as well as a continuing effort to help the city rebuild after the devastating effects of 2018’s Hurricane Michael. These are layered and urgent responsibilities, yet none of them fall under the current DHS designations.
Conversations about a path to status can get bogged down in esoteric discussions about citizenship and belonging, but fundamentally the things that Beatriz and Emilio want are pretty simple. “It’s the most basic stuff, to be able to contribute, not live in the shadows, not fear driving a car or not having the right license, fear going to the supermarket [because] you don’t know if they’ll get you there,” said Emilio.
For Beatriz’s part, her main desire is just to visit the family she left behind 12 years ago. Among the mundane rights that can easily be taken for granted in the U.S. is the mere freedom to leave and return. “I would stay in the same job, because I like what I do, I like working in the fields, in agriculture.… To have that opportunity to go visit my family and come back to work, and make money to keep helping my family, that would be a huge change,” she said.
Yet getting the idea from concept to reality will be a formidable lift. Could we see a wholesale regularization program that will be broadly accessible to all undocumented workers who played a part in both safeguarding the nation’s health and keeping its economy from burning up completely? Or could we see a more piecemeal approach, one perhaps easier to pass in parts but that risks leaving behind many of those the nation relied on when catastrophe struck?
One likely obstacle will be a reticence by otherwise sympathetic legislators to undertake any program that would grant work authorization to thousands of immigrant workers just as millions of people are attempting to reenter the labor force post-pandemic.
When xenophobic entreaties against immigration have failed, the labor argument has proven effective before. The American Federation of Labor and other large labor unions themselves spent the twentieth century largely opposed to protections for migrant workers before reversing many of these positions in the last 20 years. The Democrats writ large have shifted positions dramatically in just a few decades, with President Bill Clinton’s signature on the 1996 Illegal Immigration Reform and Immigrant Responsibility Act having created much of the modern draconian enforcement state upon which Trump has gleefully built.
Still, we’re in the early days of a recession, and there will be no immediate bounce back from industry collapse and mass unemployment; even as restrictions may be lifted and people are allowed to return to work, optimistic prognostication ignores that many people won’t have jobs to go back to. It’s possible to imagine Democrats, already timid on immigration, deprioritizing regularization in the face of coordinated bad-faith pressure campaigns connecting work authorization to citizen unemployment.
On the right, the Trump administration has used the dual specters of the coronavirus and the economic havoc that follows it as reasons to indefinitely shut down the prospect of asylum at the southern border and stop the issuance of new immigrant visas, a policy that it’s considering expanding to include several types of work visas and programs allowing international students to work in the country.
But this is a paper-thin premise to curb immigration—a long-standing Trump agenda item and only the latest appearance of the false notion of a limited job pool that immigrants drain, as opposed to expand. The workforce to be regularized isn’t a new one, and in fact it’s already an essential part of both the American economy in general and the pandemic response in particular. Saket Soni, the director of the Resilience Force and a longtime immigrant worker advocate, pointed to meatpackers, whom the president forced to keep working via the Defense Production Act, as an example.
“In South Dakota, where the Smithfield plant is, or the Tyson plant, a vast proportion of these workers are immigrants. Among them there are refugees, asylum-seekers, [Temporary Protected Status] holders, and undocumented immigrants,” he said. “Whether they have a temporary and tenuous legal status or no legal status at all, we’re arguing that anything less than a full legalization of the workers would be actually at cross purposes with pandemic recovery.”
Having essential workers laboring without legal status is akin to having them work without PPE, Soni said. “Not doing it would be a public nuisance, an obstacle to public health, and ultimately would slow down and complicate the American recovery process.” He pointed to his organization’s work in hurricane relief as evidence that fundamentally, the majority of people would prioritize an efficient recovery as opposed to abstract concerns over immigration. “While the faraway national immigration debate is acrimonious, cities that have lost 70 to 80 percent of their housing stock after a hurricane aren’t largely concerned with the immigration status of their rebuilders.”
In a sense, this is a microcosm of the essential contradiction at the heart of the contemporary immigration reform dialogue: Ultimately, very few policymakers don’t want immigrant workers at all. Instead, what most supposed hawks really want is a sort of standing workforce of disenfranchised and disposable people, who can well enough pick berries or carve up pigs but not get too uppity about having a civic voice, or even workplace organization and protections. This is a business imperative above all, and as such it’s been upheld by Democrats and Republicans alike.
Some lawmakers have already taken a meager stab at immigration benefits for essential personnel. The Heroes Act, passed by the House as the next big pandemic response measure after the signing of the Cares Act, includes a streamlined path to residency for medical workers, an easing of restrictions on medical workers’ use of work visas, and deferred immigration enforcement for all other critical workers, though without any path to legal status after the pandemic. As paltry as it is, the bill has been called “dead on arrival” by Republican senators, in part due to measures they perceive as unrelated to the economic recovery.
The bill’s fate and the clear anti-immigrant objectives of the current administration can give the concept of a mass nationwide pathway to citizenship for the undocumented the veneer of a pipe dream, but it’s not unprecedented. In fact, such an enterprise was undertaken less than 35 years ago in the form of the Immigration Reform and Control Act, signed by none other than President Ronald Reagan.
IRCA was initially introduced in the Senate by Wyoming Republican Al Simpson, who had been a member of a bipartisan commission that spent around two years studying immigration reform before issuing a series of recommendations in March 1981. The bill died twice before Simpson and other lawmakers landed on a version that worked for everyone, which passed the Senate in 1985, passed the House in 1986, and was signed that same year.
Among other things, the law created two mass legalization programs: one for any undocumented immigrant who had been present in the U.S. since at least the beginning of 1982 and met other conditions, like not having a criminal record; and another specifically for workers who had performed agricultural work in the year preceding May 1986. Together, the initiatives provided a path to eventual citizenship for an estimated 1.6 and 1.1 million people, respectively. In exchange, criminal sanctions were established for employers who knowingly hired immigrants without work authorization, and border security was increased.
The circumstances were different then, but Simpson, now retired, believes that if anything, our current crisis can cut through some of the noise and accelerate the process. “It’s going to get rid of certain stupid regulations that weren’t there before but, over the years, have encrusted themselves onto various policies,” he said, pointing to Department of Labor rules requiring advertising jobs to Americans before hiring work visa holders as an example. Simpson is no immigration dove but sees the moral and practical argument for regularization. Otherwise, workers “will simply be exploited, and they’re expendable.”
A big part of the push toward a full residency and a path to citizenship as opposed to some sort of extendable nonresident legal status is that a temporary farmworker program already exists, and it is rife with abuse. While the H-2A visa is designed for people to leave and reenter the U.S. seasonally, as opposed to a program that would presumably allow people to work in the country indefinitely, the main pitfall could be the same: being tied to an employer, who can dictate terms and exploit captive workers.
Emilio, who suffered wage theft at a previous job, said a legalization program had to offer “the possibility of not being stuck to one place where you’re working, because you can’t go to a better place to use your skills since you don’t have papers, you don’t have opportunities. It limits you to staying with what you’ve got.”
In more recent times, it’s been the agriculture industry in particular that’s moved the needle on the prospect of widespread worker regularization. Late last year, before the pandemic, the House passed the Farm Workforce Modernization Act, which, somewhat similarly to IRCA, created a new temporary visa type leading into permanent residency and eventual citizenship for most undocumented agricultural workers. It also included an expansion of guest worker programs and employment verification tools for employers.
For farmworker groups, the prospect of having an entirely new legalization scheme tied to the pandemic can seem superfluous when so much effort was already put into the FWMA. “We spent eight months working with agricultural leaders, with members of both parties, and it’s something they both like,” said Leydy Rangel of the United Farm Workers Foundation. “What we have with the [FWMA] is something we see as definitely reachable, it’s something that we can accomplish.” That doesn’t mean they don’t want to add to it with pandemic-specific measures—Rangel mentioned the prospect of paid sick leave and guaranteed PPE as items they were pushing for now—but the FWMA remains the base.
This raises the prospect that different types of essential workers could have different avenues for regularization and expedited residency, in a piecemeal structure. For his part, Soni of the Resilience Force is proposing a specific “resilience worker status” visa that would encompass various different types of critical worker and would continue drawing on an immigrant workforce as long as it takes for the impact of the coronavirus to be fully dealt with, which could take years.
One could imagine such programs existing separately for, say, agricultural workers, medical workers, contact tracers, delivery workers, and so on and so forth. This method would have the advantage of letting each group tailor the approach that would make most sense for them, and, if need be, tweak it until it’s palatable for the Republican senators who would have to sign off. The danger, of course, is it’ll collapse under its own weight.
There are alternate visions, including one where a path to citizenship is disentangled completely from work. Last year, the House also passed a bill establishing a path to citizenship for people who were brought to the country without documentation as children, as well as Temporary Protected Status holders. In Washington, you no longer hear much about a comprehensive program that would offer this path to all 11 million undocumented immigrants in the country, but some groups are still pushing that solution, which would sidestep most of the messiness with cutoff dates and eligibility criteria, but, like most progressive horizons, feels a far way off from where we are now.
Beatriz is less concerned about the details of how to get there than she is about wanting a certain sense of tranquility and belonging. “People leave their youth here. Many came when they were 20, or 24, and then what you end up doing is you leave when you’re old, or you’re sick, or you leave in a pine box,” she said. “It’s a gilded cage. We can work, we can make a living, but spend our time locked inside. Why? Because of fear.”