With Republicans favored to clinch retention of the Senate Majority by winning two of three remaining Senate races in Georgia and Alaska, a comprehensive immigration reform bill probably will not gain significant traction in the Senate in the next two years, even if the Democratic-controlled House decides to move such a bill. In the event that control of the Senate flips to the Democrats following two Georgia January runoffs, a comprehensive immigration package would stand a much better chance of success, and in any event, one could be expected to come before the full Senate for consideration.

Recent history from Comprehensive Immigration Legislation: In June 2013, the prospects for a big immigration bill reached their high-water mark but that mark was not high enough. The Senate compromised on a bipartisan immigration package, negotiated initially by a gang of Eight bipartisan senators and then amended by the full Senate and passed 68-32 with the support of then-President Obama, 14 Senate Republicans, and all 54 Senate Democrats. Of the 14 Republicans who supported the measure, only five (Rubio, Hoeven, Collins, Graham, and Murkowski) still serve in the Senate. The Republican-controlled House at that time did not take up the 2013 measure and it died. There has been no significant effort at such a bill since.

Post-2013 Immigration Actions: President Obama’s Deferred Action for Children Arrivals (DACA) Development, Relief and Education for Alien Minors (DREAM) Act program and President Trump’s pursuit of a southern border wall headline the Executive Branch efforts to set immigration priorities. In the absence of progress on a comprehensive package, frustrated lawmakers have tried to move these and other single issue immigration priorities a la carte, such as tech/H-1B visa reform, agricultural sector worker reform, and country-caps reform. One bill, S.386, that would phase out the country-caps for green cards, has gotten particularly close to passage. It passed the House handily but has since been amended numerous times and held at one time or another by various individual senators. The lead Senate Democrat on the bill, Senator Harris (D-CA), appears headed to the White House and that could energize efforts to pass the bill, which is a priority in states with heavy tech sector presences, and to the Indian American community since it would relax the severely stressed cap on Indian U.S. naturalization.

Prospects for a Comprehensive Immigration bill in the next Congress: Assuming a divided Congress, a prospective President Biden and Senate Judiciary Committee Chairman Graham (R-SC) might provide the best combination for a big immigration bill in the next Congress. Yet Graham appears unlikely to retain the Judiciary gavel, giving way to Senator Grassley (R-IA) to take over the Judiciary Committee. That Committee has jurisdiction over immigration legislation. Unlike Graham, Grassley voted against the 2013 bill and also speaks forcefully about his general opposition to taking up a big immigration package. Forging a Biden-Grassley compromise that has the support of many House Democrats would not be easy, but it is not impossible. Should the Senate flip to the Democrats, control of the Senate Judiciary Committee gavel would fall to one of three Democratic senators, all of whom have a history of support for a comprehensive immigration solution.

Lame Duck 2020: President Trump’s apparent outgoing Administration appears likely to continue to aggressively push restrictionist immigration Executive actions as his term comes to an end. He already has taken efforts by presidential proclamation and interim final regulation in the second half of this year to restrict immigrant worker visas. He views immigration crackdown as a legacy item for his presidency. We expect him to stay aggressive during a lame duck session of Congress.

Senate Floor action: One parting thought on Senate Floor prospects for a significant immigration package is that often, such an effort isn’t undone as much by the failure to compromise as it is the Senate’s unlimited right to amend bills that reach the Senate Floor. Members of both parties, pent up by the frustration of not being able to move to substantial immigration issues year after year, will try to amend any immigration package that comes to the Floor, upsetting efforts at delicate compromise. Even the most popular portions of immigration reform legislation are often ultimately blocked by senators and opposed by key Executive Branch officials who are disappointed that their own more controversial priorities were not considered or otherwise did not make it into such a bill. These difficulties in limiting the scope of efforts to reform our broken immigration system have stymied attempts to pass less controversial and more popular pieces of such a bill on their own.