Senate leadership released the text of a bipartisan compromise on the border Sunday evening, the product of four months of painstaking negotiations.
Elements of the deal, brokered by a bipartisan working group, had been teased in the days leading up to its release; however, the granular details offered by the text itself will determine how much support the bill receives in the Senate. The package, part of a larger national security supplemental, will be considered as soon as Wednesday.
The negotiations have been a lightning rod for controversy ever since they began in earnest, with apparent leaks threatening to derail the legislation before it ever came to light.
It’s been called everything from an amnesty to the toughest border security legislation in the last three decades. But what’s actually in the deal, which carries a whopping $20 billion price tag?
Title 42-like authority
The centerpiece of the legislation is a new expulsion authority for the president that allows him to turn away immigrants when border crossings surge.
That authority is granted at a weekly average of 4,000 encounters a day. But it becomes mandatory at a weekly threshold of 5,000 a day or when crossings reach 8,500 in a single day.
For context, crossings regularly broke 10,000 a day in the record-setting month of December.
The idea of the authority is to shut down the border when authorities become overwhelmed, but conservatives have framed the provision as codifying thousands of illegal crossings a day. House GOP leadership pointed to the threshold in declaring the legislation “dead on arrival” on Sunday night.
Senate negotiators have dismissed that characterization as “misinformation,” describing the authority, which expires after three years, as critical to gaining “operational control” of the border.
The authority, which would become available immediately after enactment, is similar to the Title 42 powers used during the COVID-19 pandemic to turn immigrants away but would also bar repeat border crossers from entering the country legally for a year.
There are exceptions to the shutdown power. A minimum of 1,400 immigrants a day would be processed at legal ports of entry, and agents could not turn away unaccompanied children or those facing an imminent threat to their lives.
The 1,400-plus immigrants would be under government supervision and removed if they failed to prove their claim to asylum.
Finally, crossings would have to drop below 75% of the trigger number for a week before the border could be reopened.
Asylum
The other major change touted by negotiators is the deal’s asylum provisions.
The legislation would create a stricter standard for initial asylum screenings, meaning more immigrants would be quickly deported. Those screenings would take place in detention and within 90 days.
For these reasons, the negotiators hail the package as an end to “catch and release.”
Additional resources would be allocated for detention beds, asylum officers, border agents, and more. The current capacity of 34,000 beds would be increased to 50,000, for example, while funding would be provided for up to 77 repatriation flights a day.
Those who cannot be detained, such as family units, would be released but monitored, either with a bracelet, cellphone, or comparable technology.
Immigrants who pass the initial screening would receive a work permit, and if their final screening is successful, they would be eligible for a path to citizenship under the law.
The entire process must be resolved within 180 days, or six months. The time frame, which negotiators compare to the decadelong backlog in the court system, is meant to allay concerns that immigrants will disappear into the interior of the country.
The bar for asylum is not raised for the second and final screening. But three factors considered at the end of the process would instead be considered at the beginning: Does the immigrant have a criminal history? Was the immigrant living in a safe third country? And could that person have relocated safely within their own country?
Presently, four out of five individuals pass through the initial screening despite fewer than 15% ultimately qualifying for asylum, according to Sen. Kyrsten Sinema (I-AZ), one of the lead negotiators.
Importantly, the cases would be handled by U.S. Citizenship and Immigration Services rather than the courts, so the Department of Homeland Security would be given 90 days to hire and train the asylum officers needed for the new system before it takes effect.
Parole
The most controversial element of the proposal, particularly for negotiators, was President Joe Biden’s use of parole, an authority the president has used to admit more than a million immigrants into the country. Curbing that power, used sparingly in past administrations, remained a sticking point into the final days of negotiations.
The legislation does narrow the president’s authority at land ports of entry. Around 1,500 immigrants are paroled into the country each day, according to Sen. James Lankford (R-OK), using a Customs and Border Protection phone app that allows immigrants to schedule an appointment at land ports. The legislation would end that practice after 90 days.
It also restricts the use of parole for illegal border crossers between ports of entry.
Democrats celebrated the preservation of class-based parole, however. The bill keeps intact programs that the administration has used to admit hundreds of thousands of immigrants from Cuba, Haiti, Nicaragua, and Venezuela on humanitarian grounds.
Other provisions
The president used his parole authority to admit thousands of Afghans after the 2021 withdrawal. That authority allows for temporary resettlement, including work authorization, but does not grant legal status. Accordingly, the bill includes the Afghan Adjustment Act, which would provide a process for permanent residence for those Afghans.
Also included is the FEND Off Fentanyl Act, which empowers the administration to target entities that produce or smuggle fentanyl.
There are several changes to the visa system. An additional 250,000 visas would be authorized over five years. In addition, so-called “Documented Dreamers,” those who came to the United States as children of high-skill workers but lost legal status at age 21, would be protected from deportation due to the green card backlog.
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The legislation would include $650 million in border wall funding but also Democratic deal-sweeteners, including guaranteed legal counsel for unaccompanied minors and those deemed mentally incompetent.
There are no amnesty provisions for the current undocumented population.
