The first day of Congress in 2017, Rep. Jeff Denham of California’s 10th District, introduced his priority legislation in the ENLIST Act. This bill is fairly simple, immigrants not lawfully present in the US can enlist in the armed services and can earn lawful permanent residency for doing so. This is assuming that the person was younger than 15 when they entered the United States. It’s a decent bill that would provide a path to legal residency for many immigrants in the United States here illegally.

Somewhat surprisingly, Rep. Don Bacon supported the bill by being a co-sponsor of the bill. There are 203 cosponsors of the bill, currently. It has widespread bipartisan support It is unlikely that it will be put up for a vote, much like it has not in the past. Rep. Denham introduces the bill fairly consistently and has been fairly moderate on immigration issues.

Marine Corps Gen. Peter Pace testified before Congress “some eight, nine, or ten percent fewer immigrants wash out of our initial training programs than do those who are currently citizens.” In the ACLU’s report, “Discharged Then Discarded”, they note that this view is often repeated in other military reports. One report said “relative to citizen recruits, noncitizen recruits generally have a stronger attachment to serving the United States, which they now consider to be ‘their country’ and a better work ethic.” Noncitizen retention rates are higher than of U.S. citizens. According to the ACLU, the dropout rate for noncitizens are nearly half of that of U.S. citizens when service reaches four years.

The ACLU provides a brief history, in their report, about how noncitizens could serve in the military. In 2006, Congress limited eligibility to serve in the military to Lawful Permanent Residents. Prior to 2006, undocumented immigrants could enlist and be conscripted during wartime. Congress left a provision for the Secretary of Defense to determine if other noncitizens could serve, if it is vital to the national interest. The Department of Defense created the Military Accession Vital to the National Interest (MAVNI). This authorized a maximum of 1,500 of “legally present” noncitizens to join the military. In 2014, they expanded to included DACA individuals and came to the United States prior to the age of 16. By 2016, the cap increased from 1,500 to 5,000. Outside of MAVNI, Congress rejected efforts to expand the pool of eligible noncitizens. Despite that, other noncitizens have enlisted in the military outside of MAVNI by accident or due to “deceptive practices of military recruiters.”

Lawful permanent residents are eligible to naturalize after five years. The ACLU provides the relevant sections of the Immigration and Nationality Act. There are different requirements depending on if the noncitizen is serving during peacetime or wartime.

Peacetime naturalization

An LPR who serves in the military during peacetime can naturalize under Section 328 of the INA, if he or she served honorably in the armed forces for a period or periods aggregating one year. If separated from the service, the separation must be under honorable conditions. Both ‘Honorable’ and ‘General – Under Honorable Conditions’ discharges qualify; discharge types such as ‘Other than Honorable’ do not

US Customs and Immigration Services notes on their fact sheet about qualification for naturalization and citizenship. They write

The President signed an executive order on July 3, 2002, authorizing all noncitizens who have served honorably in the U.S. armed forces on or after Sept. 11 2001, to file for citizenship under section 329 of the INA. Section 329 also covers veterans of certain designated past wars and conflicts. The authorization related to the War on Terrorism will remain in effect until a date designated by a future presidential executive order.

USCIS has interpreted this statute to include a requirement of a separate and additional showing of “good moral character.” The ACLU and many reasonable people look at military service as its own showing of “good moral character.” The 9th Circuit, as the ACLU notes, agrees. There is not a mention of the good moral character in the statute. It would simply be easier legislatively to require that USCIS interprets the INA statute to equate military service with good moral character.

The ENLIST Act is a pretty good bill. I would like it to also codify the interpretation of the INA statute so that “good moral character” is not used to determine eligibility for either legal status or citizenship.

Bacon also co-sponsored legislation from Mike Coffman, the BRIDGE Act. The BRIDGE Act would make it possible for certain immigrants to receive “provisional protected presence” and work authorization. This protected presence and work authorization would only last, at most three years. There is not a path to citizenship for immigrants under the BRIDGE Act.  To qualify for the BRIDGE Act,it is essentially the same requirements for the Deferred Action for Childhood Arrivals (DACA). From October of 2012 to October 2016, nearly 750,000 unauthorized immigrants received DACA.

The requirements for the BRIDGE Act and DACA would be that the person would have to be at least 15 years old; born after June 15, 1981; came to the US before their 16th birthday; lived continuously since June 15, 2007; been physically present since June 15, 2012; at the time of filing an application need to be in school or in a program aimed at receiving a high school diploma or passing a GED exam; have graduated; have received the GED; or be an honorably discharged veteran of the Coast Guard or U.S. Armed Forces; and not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanor offenses.

This is not any type of comprehensive immigration plan nor does it provide for a path to citizenship. the bill would merely kick the can down the road for three years. Then perhaps hundreds of thousands of immigrants would feel their status in limbo under a new Presidential administration. Bacon opposes “amnesty” for those here illegally because he does not think it’s fair to those waiting to come here. His issue position from his campaign website said the following

“We need to have employer enforcement when it comes to hiring illegals. This is the root cause of our illegal immigration problem. We also need to secure our borders. It is a security disaster to have over 300,000 illegal immigrants crossing our border every year. Finally, we owe it to the 4.5 million people who are waiting to come to the United States legally to not give amnesty for citizenship to those who came here illegally.”

Rep. Bacon and others try to carve through a middle ground to give immigrants a legal status even if it is below citizenship status. I believe that in their mind, this moves undocumented immigrants out of the shadows. The problem is what happens after they are out of the shadows. In this bill, the answer is, well they’re out for three years. Without any details as to what happens after that. I’m not sure what the end goal of this type of legislation is. It’s a stopgap legislation leading to more comprehensive immigration reform.

After the Gang of Eight immigration did not advance any further in Congress due to inaction in the House of Representatives, Marco Rubio announced his newfound belief that we should address immigration in a piecemeal way. I disagree with the approach, as a matter of sound policy, but if it were to advance in such a way, the BRIDGE and ENLIST Act would provide paths forward to talk about how immigration should be fixed going forward.

At any rate, while Bacon likes to cite public support for some of his positions including some of his more prominent conservative positions, he is oddly silent about polling on a path to citizenship. About 50% of Republicans support a path to citizenship. In total about 65% of US adults support a path to citizenship for illegal immigrants. It seems odd to me that those who have either served in the military or are continuing with education would be excluded from a path to citizenship. It has become somewhat fashionable to make arguments in favor of naturalizing citizens is the argument based on merit. If someone is good enough, they should be able to get citizenship or at the very least legal status. I do not buy the argument on merit but I am making it to adopt the style that is being used, currently.