08/15/2026
The following installment is undoubtedly the most controversial yet also the most crucial, addressing significant and meaningful reform.
Teaching moment: This is the sixth installment in a series of recommendations for bipartisan, comprehensive immigration reform following the Trump administration, focusing on creating a legal pathway for certain undocumented individuals to work in the United States and eventually achieve citizenship, without providing a blanket amnesty.
Note: I understand that some of these recommendations may be seen as controversial, but I believe they are essential for ensuring consistent enforcement of immigration laws in future administrations. My aim is to promote meaningful progress, and even partial implementation by Congress would mark a significant step toward actionable reform. I do not claim to have all the answers; rather, I am contributing to this important effort to the best of my ability. This coming weekend, I will share my recommendations regarding our current undocumented population.
Copying Claudia Fowler, Candace Wicks, Veronica Escobar, Bishop Mark Seitz, and Christina Lorey
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Topic:
Congress has struggled to address immigration reform for decades. As a result, between 15 and 20 million undocumented immigrants currently reside in the United States. Among them, approximately 700,000 are in limbo as applicants for Deferred Action for Childhood Arrivals (DACA). These individuals represent about 4.41 to 5.88 percent of the total U.S. population, while DACA recipients account for less than one percent. This number is too large for Immigration and Customs Enforcement (ICE) to deport, yet too small for them to be considered a serious threat to American job opportunities.
Congress has made several sincere attempts to resolve immigration issues over the years. For example, in 1955, during the reorganization of the former Immigration and Naturalization Service (INS), they established the Detention and Deportation Program (D&DP), now known as Enforcement and Removal Operations (ERO). The creation of the D&DP empowered the INS to carry out the mission initially outlined in the Alien and Sedition Acts of 1798, which included the earliest deportation legislation and granted the President the authority to order the removal of all aliens deemed dangerous. Since then, legislation has evolved to redefine the categories of aliens subject to removal from the United States.
The Immigration and Nationality Act (INA) of 1952 expanded the federal government's power to expel a wider variety of non-citizens. The INA defined 19 general categories of deportable aliens and set criteria for exclusion at the time of admission to the United States based on health, criminal, moral, economic, subversive, and other grounds. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 further expanded the list of crimes that could lead to removal. It also removed the discretion of the Immigration and Naturalization Service (INS) to release certain non-citizens by mandating that virtually any non-citizen subject to removal due to a criminal conviction, along with specific categories of non-criminal aliens, be detained without bond. As a result of these laws and others, the INS is now required to detain and remove a much larger and more diverse population. This population necessitates unique facilities, procedures, and management tailored to individuals based on their risk level, criminal history, nationality, health, and other special needs.
On March 1, 2003, in response to the 9/11 terrorist attacks, Congress established the Department of Homeland Security (DHS) to protect the United States from further terrorist threats through the strict enforcement of immigration laws. Enforcement and Removal Operations (ERO) is one of the agencies created as part of DHS. Its mission is essential to the immigration enforcement process because it not only provides interior enforcement but also supports border agencies.
Although all the previous legislation received significant national attention when introduced, none has drawn as much public interest—both positively and negatively—as President Reagan’s Immigration Reform and Control Act of 1986. He signed this landmark act on November 6, 1986, in an effort to humanely regain control of U.S. borders.
The Immigration Reform and Control Act of 1986 generated significant attention and controversy, largely because many Americans opposed granting amnesty to nearly 3 million undocumented immigrants who only needed to prove they had been in the United States before January 1, 1982.
Critics also pointed out several flaws in the legislation. For instance, the sanctions against employers hiring undocumented immigrants were not consistently enforced, and the Act did not include provisions for the legal entry of low-skilled workers to fill labor-intensive jobs in the United States. Consequently, because Congress failed to fulfill its commitment to implement effective border security measures, undocumented immigrants continued to enter the United States illegally in search of these low-income jobs.
President Reagan sincerely believed that this Act would help the United States address the immigration issue. He famously stated, "Future generations of Americans will be thankful for our efforts to humanely regain control of our borders and thereby preserve the value of one of the most sacred possessions of our people: American citizenship."
However, despite his assertion that the Act would "remove the incentive for illegal immigration by eliminating the job opportunities which draw illegal aliens here," he later realized that this goal would not be achieved. This sentiment was echoed by Republican U.S. Senator Kelli Ward, who, in an interview on Breitbart News’ satellite radio show, remarked, “In 1986, Ronald Reagan — great president, amazing conservative, lover of liberty and of America — granted amnesty; and Ed Rollins, who is helping me with my campaign, told me that President Reagan’s biggest regret as president was granting amnesty and then trusting Congress to deliver on border security. It did not happen then, and it’s not going to happen now if we do this in the wrong order.”
On the other hand, David Bier, an immigration policy analyst with the libertarian Cato Institute, offers a different interpretation of President Reagan's views on the Act's failure. Bier suggests that Reagan believed his reform failed not due to Congress's inaction on border security, but because the U.S. refused to allow more immigrants to enter. He noted that Reagan expressed this sentiment in his farewell address, remarking that he wanted “an America open to anyone with the will and heart to get here.”
To honor President Reagan's vision in the 1986 Immigration Reform and Control Act and to find common ground between Senator Ward and Mr. Bier regarding its shortcomings, it is crucial to prevent a repetition of the mass migration policies implemented during the Trump administration in 2025 and thus far in 2026. These policies have resulted in numerous violations of the Fourth Amendment (unlawful searches and seizures) and the Fifth Amendment (limitations on due process). Examples of these violations include preventing non-criminals with strong community ties from being able to post bond, disregarding judges' orders, entering homes without consent or a judicial warrant, and engaging in racial profiling to determine who to arrest. Additionally, there has been significant civil unrest during rallies and protests across the United States.
In light of these issues, I propose that Congress revisit the 1986 Act. They should consider revising its provisions or creating new legislation that embodies the same compassionate spirit that guided our American ancestors when they welcomed over 1 million immigrants into the United States during World War II. I recommend that the following suggestions be taken into account.
Pathway to citizenship without granting blanket amnesty:
I propose that Congress introduce a bipartisan bill that provides unlawfully present immigrants with a pathway to citizenship. However, unlike President Reagan’s Act, which granted blanket amnesty, I suggest that this bill require unlawfully present immigrants to "earn" their pathway to citizenship by demonstrating that they are law-abiding members of society who will not commit any further criminal offenses.
In addition, I believe the bill should create or modify temporary worker visa programs that allow unlawfully present immigrants to remain in the United States legally. Currently, temporary worker visas are designed for individuals who want to enter the U.S. for employment for a limited time and are not intended for permanent residency. Each of these visas requires the prospective employer to file a petition with U.S. Citizenship and Immigration Services (USCIS), and an approved petition is necessary to apply for a work visa.
Some categories of temporary worker visas are limited in the total number of petitions that can be approved each year. Before an applicant can apply for a temporary worker visa at a U.S. Embassy or Consulate, a Petition for a Nonimmigrant Worker (Form I-129) must be filed on their behalf by a prospective employer, and it must be approved by USCIS. Once the petition is approved, USCIS will issue a Notice of Action (Form I-797) to the prospective employer. After receiving this approval, the applicant may apply for their visa.
**H-2A (Temporary Agricultural Worker Visa)**
The H-2A program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary agricultural jobs. To do this, a U.S. employer, a U.S. agent as outlined in the regulations, or an association of U.S. agricultural producers acting as a joint employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the prospective worker.
To qualify for H-2A nonimmigrant classification, the petitioner must meet the following criteria:
1. Offer a job that is temporary or seasonal in nature.
2. Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to perform the temporary work.
3. Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
4. Generally, submit a valid temporary labor certification from the U.S. Department of Labor along with the H-2A petition. (Note: There is a limited exception to this requirement under certain "emergent circumstances." Please refer to 8 CFR 214.2(h)(5)(x) for specific details.)
H-2A and H-2B petitions may only be approved for nationals of countries designated by the Secretary of Homeland Security, with the concurrence of the Office of the Secretary of State, as eligible to participate in the H-2 program.
Typically, USCIS may grant H-2A classification for the duration authorized on the temporary labor certification. This classification may be extended for qualifying employment in increments of up to one year, provided that each extension request is accompanied by a new, valid temporary labor certification covering the requested period. The maximum duration of stay in H-2A classification is three years.
A person who has held H-2A nonimmigrant status for a total of three years must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission as an H-2A nonimmigrant. Additionally, any time spent in other H or L classifications will count toward the total H-2A time.
Exception: Certain periods spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the three-year limit.
An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. However, family members in H-4 status are not eligible for employment in the United States.
H-2B (Temporary Non-Agricultural Worker Visa):
The H-2B program permits U.S. employers or agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary non-agricultural jobs. A U.S. employer or agent, as defined by the regulations, must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the prospective worker.
There is a statutory numerical limit, or "cap," on the total number of individuals who can be issued an H-2B visa or granted H-2B status in a fiscal year. Currently, Congress has set the H-2B cap at 66,000 visas per fiscal year. This includes 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for those starting in the second half (April 1 - September 30). Any unused visa numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half. However, unused numbers from one fiscal year do not carry over into the next year. Once the H-2B cap is reached, USCIS can only accept petitions for H-2B workers who are exempt from the cap.
Similar to H-2A petitions, H-2B petitions can only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Office of the Secretary of State, as eligible for the H-2B program.
Generally, USCIS may grant H-2B classification for up to the period authorized on the temporary labor certification. This classification may be extended for qualifying employment in increments of up to one year each. Each extension request must be accompanied by a new, valid temporary labor certification covering the requested period. The maximum duration of stay in H-2B classification is three years.
A person who has held H-2B nonimmigrant status for a total of three years must depart the United States and remain outside the country for an uninterrupted period of three months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward the total H-2B time.
Exception: Certain periods spent outside the United States may "interrupt" an H-2B worker's authorized stay and will not count toward the three-year limit.
Spouses and unmarried children under 21 years of age of H-2B workers may seek admission in H-4 nonimmigrant classification. However, family members in H-4 status are not eligible for employment in the United States.
Create H-2A1 and H-2B1 Visas:
A recent study conducted by the Migration Policy Institute (MPI) revealed that 67 percent of the undocumented immigrant population in the United States comes from the Northern Triangle countries, which include Mexico and Central America. The study also found that 95 percent of these undocumented immigrants either had jobs (67 percent) or were not part of the labor force (28 percent). This means that only 5 percent were unemployed, reinforcing the idea that the primary motivation for most unlawfully present immigrants coming to the United States is to seek employment rather than commit crimes. Additionally, the MPI study indicated that these immigrants primarily pursue labor-intensive jobs in sectors such as food services, construction, manufacturing, and waste management, which are typically not sought after by the American workforce.
Source: Migration Policy Institute (MPI) analysis of U.S. Census Bureau data from the pooled 2012-16 American Community Survey (ACS) and the 2008 Survey of Income and Program Participation (SIPP), drawing on a methodology developed in consultation with James Bachmeier of Temple University and Jennifer Van Hook of The Pennsylvania State University, Population Research Institute.
With this in mind, it is time for Congress to agree to allow a significant portion of the unlawfully present population to remain in the United States. I propose that they permit individuals from the Northern Triangle countries—who comprise 67 percent of the unlawfully present population—to remain, as they primarily seek jobs that many Americans are not pursuing.
I believe Congress can achieve this by creating additional temporary worker visas to supplement the existing H-2A and H-2B categories. Specifically, I suggest establishing the H-2A1 and H-2B1 visa categories.
The H-2A1 visa category (Northern Triangle Temporary Agricultural Worker Visa) and the H-2B1 (Northern Triangle Temporary Non-Agricultural Worker Visa) would allow the undocumented population from the Northern Triangle to remain in the United States, provided they meet specific conditions and requirements. For example:
1. They have not committed or are not suspected of committing any crime that constitutes a Priority 1 violation (threats to national security, border security, and public safety) or a Priority 2 violation (misdemeanor offenses) under President Obama's Civil Immigration Enforcement Priorities.
2. They are citizens of Mexico, El Salvador, Guatemala, or Honduras.
3. They are currently unlawfully present in the United States.
4. They are currently employed in an occupation that qualifies under the H-2A or H-2B visa criteria, or are a family member who qualifies under the H-4 visa requirements.
5. They have an employer who will submit a petition on their behalf and meet the qualifications to file for H-2A or H-2B petitions.
Upon satisfying these conditions and requirements, qualifying applicants should be allowed to receive either the H-2A1 or H-2B1 visa. Unlike the current H-2A or H-2B process, applicants should not be required to leave the country to obtain the visa but should be allowed to apply for it through USCIS.
Additionally, to benefit taxpayers and voters in the United States, H-2A1 and H-2B1 applicants should be required to pay a $1,000 fine for residing unlawfully in the United States. Based on calculations from MPI’s analysis, this could generate nearly $13.4 billion for the U.S. government, which could be used to address the current deficit. Moreover, it is estimated that these workers could significantly boost U.S. GDP and generate an additional hundred billion dollars in state and federal tax revenue. Research indicates that undocumented immigrants in the U.S. are earning far less than their potential, paying fewer taxes, and contributing significantly less to the economy than they would if granted legal status.
Furthermore, the bipartisan legislation should provide a pathway to citizenship for those eligible. This could involve a process where H-2A1, H-2B1, and respective H-4 visa holders would renew their visas every three years (without leaving the country), and after 10 years, if they have not committed any Priority 1 or Priority 2 related crimes, they could apply for permanent residency.
In addition to generating more revenue for the U.S. economy and government, granting legal status and a potential pathway to citizenship for the unlawfully present population from the Northern Triangle can enhance national security and public safety. It will encourage millions of undocumented immigrants to step forward and come out of hiding, allowing the government to better account for who resides in the United States. This will enable law enforcement to focus on those committing crimes and threatening local communities. Moreover, it will help the immigrant community feel more comfortable reporting crimes, knowing they are no longer at risk of arrest due to their undocumented status. This approach also serves as an additional incentive for them not to engage in criminal activities.
Prioritize the targeting of criminal aliens by adhering to President Obama’s immigration enforcement guidelines:
Before the Trump administration took office, ICE did a commendable job of identifying, arresting, and removing criminal aliens. In FY 2018, for instance, 86% of those arrested had criminal convictions or pending charges. However, I believe ICE can significantly enhance its image by not only changing its name but also by focusing its resources on targeting criminal aliens. This approach would likely be better received by the public and aligns more closely with the Department's mission of ensuring public safety and national security, which is why ICE is part of the Department of Homeland Security.
To streamline enforcement activities, I propose that ICE focus solely on targeting aliens who fall under Priority 1 and 2 civil immigration enforcement priorities established by President Obama:
**Priority 1** (Aliens posing a danger to national security or public safety):
1. Aliens engaged in or suspected of terrorism or espionage, or those who otherwise pose a threat to national security.
2. Aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States (with a transfer of this priority to CBP).
3. Aliens convicted of an offense involving active participation in a criminal street gang, as defined in 18 U.S.C. 521(a), or those who are at least 16 years old and intentionally participated in an organized criminal gang to further illegal activities.
4. Aliens convicted of a felony in the convicting jurisdiction, excluding state or local offenses that primarily involve the alien’s immigration status.
5. Aliens convicted of an "aggravated felony," as defined in section 101(a)(43) of the Immigration and Nationality Act at the time of conviction.
**Priority 2** (Misdemeanants and new immigration violators):
Aliens in this category represent the second-highest priority for apprehension and removal. Resources should be dedicated to the removal of the following:
1. Aliens convicted of three or more misdemeanor offenses, excluding minor traffic offenses or state or local offenses primarily linked to the alien's immigration status, provided these offenses arise from three separate incidents.
2. Aliens convicted of a "significant misdemeanor," which includes offenses such as domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence. Additionally, this applies to any offense not listed above for which the individual was sentenced to 90 days or more in custody (excluding suspended sentences).
This focused approach would help ICE more effectively utilize its resources and better align with its mission.
Remove criminal aliens from the United States under Section 238(b) authority:
Section 238(b) of the Immigration and Nationality Act (INA) establishes an administrative removal procedure for non-lawful permanent resident aliens (LPRs) who are deportable due to a conviction for an aggravated felony. This removal procedure is a form of summary removal; therefore, unless the alien either contests the charges or proves their eligibility for withholding of removal, they will not be entitled to a hearing before a judge. To be subject to administrative removal under Section 238(b), an alien must:
1. Have been convicted of a crime that renders them deportable under Section 237(a)(2)(A)(iii) of the INA, which pertains to aggravated felonies in immigration law.
2. Not be admitted into the United States as an LPR at the time removal proceedings commence. However, aliens admitted only as conditional permanent residents are still subject to Section 238(b).
It is crucial to understand that the statute refers to "aggravated felonies" within the context of immigration law, not necessarily as defined by state law. Therefore, a conviction that does not qualify as an aggravated felony under state law may still be classified as such in the immigration context. A list of aggravated felonies recognized by immigration law can be found in Section 101(a)(43) of the INA.
Under Section 238(c) of the INA, a conviction for an aggravated felony creates a presumption of deportability. However, according to Section 238(b)(3), an alien issued a Form I-851 (Notice of Intent to Issue a Final Administrative Removal Order) may not be removed until 14 calendar days have passed from the issuance date. Section 238(b)(4) requires that the alien be given reasonable notice of the removal charges and an opportunity, at no expense to the government, to consult with legal counsel. Additionally, the alien must have a reasonable opportunity to inspect all evidence and try to rebut the charges. If the alien provides compelling evidence to rebut the charges, the officer handling the case may request more evidence, place the alien in standard removal proceedings, or dismiss the charges entirely [8 C.F.R. 238.1(d)(2)(ii)]. Therefore, due process is still upheld.
There are several grounds upon which administrative removal for an aggravated felony conviction can be challenged. If the alien requests to review the findings for a response, they will have 10 calendar days to respond if the I-851 is delivered in person, and 13 calendar days if it is delivered by mail. The alien may also request withholding of removal due to a fear of persecution or torture in their home country. If withholding of removal is requested, the alien will be granted an interview with an asylum officer for a reasonable fear determination upon issuance of a final order of removal [8 C.F.R. 238.1(f)(3)]. If a reasonable fear is established, withholding of removal may be granted. According to treaty obligations, the United States cannot return an alien to a country where there is a significant likelihood of torture by a government official. However, it is essential to note that a conviction for an aggravated felony may act as a mandatory barrier to asylum.
To expedite the removal process for non-LPR criminal aliens classified as Priority 1 and 2 (as noted above), I believe they all must be removable under Section 238(b). As mentioned earlier, they will still be entitled to due process. This change would speed up the removal process, ensuring that these individuals do not remain in the United States and pose a threat to public safety or national security. Additionally, it would save taxpayer dollars by reducing the duration that criminal aliens spend in custody.
Focus on identifying aliens who have pending criminal charges and ensure they are placed into immigration proceedings.
In line with the proposal to target only criminal aliens, it would be prudent for the new agency to also focus on non-LPR (Lawful Permanent Resident) aliens who have pending Priority 1 and 2 criminal charges. Unlike convicted criminals who can be removed under Section 238(b) authority, it is advisable to place aliens with pending charges into custody upon their arrest and initiate immigration proceedings against them. This approach is warranted unless they have a prior order of removal that the agency can reinstate, which applies to aliens who have illegally reentered the United States after being deported or removed. Without a conviction, a legal argument could be made that these individuals have not been afforded their due process rights.
Moreover, it would be wise for the Executive Office for Immigration Review (EOIR) to establish a specialized docket for cases involving pending charges, ensuring that these cases are heard promptly. The removal of these aliens should be prioritized unless they qualify for asylum or another form of relief under our laws, or unless, in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of Field Operations, there are compelling and exceptional factors indicating that the alien does not pose a threat to national security, border security, or public safety, and should not therefore be considered an enforcement priority.
Without these exceptions, it is essential to remove qualifying cases from the United States as soon as possible. Keeping them in custody for an extended period increases their chances of being released, which could potentially allow them to pose further harm to our communities.
Enroll collateral non-criminal arrests into the Alternative to Detention (ATD) program:
As part of expanding the use of the Alternatives to Detention (ATD) program, unlawfully present non-criminal immigrant aliens (those without any pending criminal charges) should be enrolled in the ATD program upon encounter. While this approach may generate controversy, the Agency should avoid targeting these individuals for arrests, except in cases where they have pending priority 1 or 2 criminal charges. Instead, unlawfully present non-criminal immigrant aliens should be treated as follows:
1. If they do not have a final order of removal from an Immigration Judge (IJ), they should receive a Notice to Appear (NTA) to present their case before an IJ and then be released from custody under the ATD program. They should remain in the ATD program until their immigration proceedings are complete unless there are compelling reasons that prevent the Agency from enrolling them in the program (e.g., if the alien is a minor). If the Agency cannot enroll an individual in the ATD program, it should revert to traditional non-detained reporting methods, which require the individual to report in person periodically. Additionally, the Agency should continue to exercise prosecutorial discretion on a case-by-case basis.
2. For those who have received a final order of removal from an IJ and have a pending appeal with the Board of Immigration Appeals or a U.S. District Court, they should also be enrolled in the ATD program as previously mentioned. However, they should be placed in a stricter version of the ATD program with stringent reporting requirements and unannounced visits by the ATD contractor to the enrollee's home. They should remain in the ATD program until the higher court renders a decision. While arrangements are made to return them to their home country (e.g., obtaining necessary travel documents and plane tickets) in the event the appeal is denied. On the day of the scheduled removal, they should report to the nearest Agency office, at which point they will be removed from the ATD program and taken to the airport to board their scheduled removal flight. As before, the Agency can choose to exercise prosecutorial discretion on a case-by-case basis or approve a deferred action or stay of removal request.
3. If those aliens with a final order of removal fail to report on the scheduled report date or removal flight date, the Agency should take them into custody the next time they are encountered, but only through a collateral arrest. This means the Agency should arrest them only when they are “incidentally” encountered while targeting a criminal alien or conducting a worksite enforcement operation.
As previously noted, I recognize that the proposal to not take unlawfully present non-criminal aliens into custody is highly controversial. However, this change is necessary and long overdue. In criminal law, police officers often choose not to arrest individuals for minor offenses (such as jaywalking or minor drug possession). Additionally, when enforcing the law for minor traffic offenses, police typically issue a warning or ticket instead of arresting unless the offense is severe or the individual has an outstanding warrant. I propose that the U.S. government adopt a similar approach to enforcing immigration law. While some may disagree with this change, it is feasible.
It is worth noting that other countries have made comparable adjustments to their immigration laws. For example, in July 2008, the Government of Australia announced the end of mandatory detention, except for asylum seekers deemed to pose a risk to the broader community, such as those with a history of breaching visa conditions or who present security or health risks. The United States should consider following this example. Such changes could result in significant cost savings (refer to the section on Cost Savings in Chapter 1) and greatly improve the Agency's public image. The general public, legislators, media, and non-governmental organizations would find it challenging to portray the Agency as terrorizing immigrant communities by targeting non-criminal aliens.
Furthermore, this change should enhance employee morale, as officers and staff will take greater pride in their work focusing on apprehending criminals rather than unlawfully present families (including children) and workers. The Agency would then be better positioned to allocate its resources effectively, targeting criminal aliens and making it clearer for stakeholders, including Congress, to understand and appreciate the Agency's mission.
Joe Sifuentez
Former (Retired) ICE Official
Lifelong Republican turned Moderate Democrat
Advocating for Good and Peaceful Governance
Protecting lives, not endangering them
