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Introduction

In recognition of the vital role of undocumented workers during the COVID-19 pandemic, policymakers and immigrant advocates have renewed calls to give legal status to certain unauthorized immigrants in the United States. Most of the proposals would create a pathway to U.S. citizenship for the estimated 5.5 million unauthorized immigrants who are considered “essential workers.” Such proposals represent a stark change from the more punitive stance toward unauthorized immigrants taken by the federal government and many states since 9/11.

That said, such proposals raise the question of whether a partial legalization scheme makes economic sense. As this paper explains, on balance, it does not. A limited legalization program would confer legal status on an arbitrarily defined subgroup of immigrants in certain occupations at a point in time while leaving out others. It would create deep inequities among immigrants and stand in the way of resolving, once and for all, the problem of illegal immigration. Millions of undocumented workers would continue in their jobs, making it near impossible to hold them or their employers accountable. It would preserve the jobs magnet for future unauthorized immigration, keeping pressure on the border and setting the stage for the need for future legalization schemes. And it would further marginalize those undocumented immigrants who work in so-called nonessential jobs, amplifying their vulnerability.

To realize the full benefits of comprehensive immigration reform and deter future unauthorized immigration, a broad and inclusive legalization program is needed—not one limited to essential workers or other “deserving” immigrants—and it needs to be coupled with stricter worksite enforcement and expanded legal pathways for future workers. Otherwise, the United States will continue to grapple with a sizable marginalized workforce for the foreseeable future.

An estimated 10.5 million migrants living in the United States—about one-quarter of the foreign-born population—lack legal status. The substantial size of the undocumented population is due to better economic opportunities for immigrants and their children here than in their origin countries. But it also reflects the long length of time since the country has had a large-scale legalization program, plus complex immigration policies that make it difficult for many immigrants to receive permanent resident status if they crossed the border illegally. The first and last mass U.S. legalization program was in 1986. Since then, most immigrants who have received permanent resident visas (“green cards”) have done so as a result of family ties. However, there are long backlogs for most family-sponsored green-card categories. And, of course, some unauthorized immigrants do not have a family member who can sponsor them for a green card. A further complication is that changes to U.S. immigration policy in 1996 require unauthorized immigrants who crossed the border illegally (rather than overstayed a visa) to return home and wait in their home country for several years before they can receive a permanent resident visa and reenter the United States. This has resulted in many of them choosing to stay in place and living in mixed- status families, where some members of the family may be citizens, others permanent residents, and some unauthorized immigrants. Clearly, those members of the family with legal status who would have been able to petition for those without it can no longer do so.

Most unauthorized immigrants work, often in low-paying jobs that could not be done remotely during the pandemic, and have been living in the country for over a decade. Many have put down deep roots in the United States, including having U.S.-born children. For some who arrived in the country as children, the United States is the only home they know. A few have even served in the military. It therefore may be tempting to view some groups of unauthorized immigrants as having earned legal status, perhaps because they are “essential” workers, childhood arrivals, or veterans. This policy paper argues that the benefits of a broad-based legalization program outweigh the costs and justify creating a program that is open to almost all unauthorized immigrants, not just a subset of them who are perceived to have earned it.

The next section provides an overview of the unauthorized immigrant population and its trends over the last three decades. The paper then explores the benefits and costs of a legalization program. The benefits are large enough that legalization should be comprehensive, not piecemeal. And finally, several additional changes should be put in place to avoid a return to mass illegal immigration in the future, including universal worksite enforcement and broader guest worker programs.