Guilty Until Proven essential: a Meritocratic Pathway to Citizenship For Undocumented Workers

GUILTY UNTIL PROVEN “ESSENTIAL”: A

MERITOCRATIC PATHWAY TO CITIZENSHIP

FOR UNDOCUMENTED WORKERS

AFTON IZU*

Less than a year and a half after the Trump administration promulgated

its “public charge” rule

1

and nine months after the former president issued a

proclamation freezing green card issuance,

2

a group of one hundred law-

makers beseeched House leadership to provide an expedited pathway to citi-

zenship for undocumented essential workers sustaining the economy amidst

the global COVID-19 crisis.

3

Many of these prospective recipients comprise

the very group the Trump administration sought to bar from legal permanent

resident status because of their income or education level.

4

Ironically, the

workers whom President Trump presented as threats to the American econ-

omy

5

have helped preserve it during the pandemic,

6

and the Biden

* Afton Izu, J.D. Candidate 2021 Georgetown University Law Center, B.A. Public Health, Brigham

Young University 2018. © 2021, Afton Izu.

1. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019) (codified at 8

C.F.R. pt. 103, 212, 213, 214, 245, 248) (held invalid by Cook County, Illinois v. Wolf, 417 F.Supp.3d

1008 (N.D. Ill. Oct. 14, 2019)).

2. Proclamation No. 10014, 85 Fed. Reg. 23,441 (April 22, 2020), https://www.federalregister.gov/

documents/2020/04/27/2020-09068/suspension-of-entry-of-immigrants-who-present-a-risk-to-the-united-

states-labor-market-during-the. This order was extended twice by Proclamation 10052, 85 Fed. Reg. 38,

263 (June 22, 2020) and Proclamation 10131, 86 Fed. Reg. 417 (Dec. 31, 2020), and finally revoked by

President Biden’s Proclamation of February 24, 2021, https://www.whitehouse.gov/briefing-room/

presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/.

3. Sabrina Rodriguez, Democrats press for path to citizenship in Covid relief, POLITICO (Jan. 30,

2021), https://www.politico.com/news/2021/01/30/immigration-citizenship-pathway-coronavirus-relief-

463994.

4. See 8 C.F.R. 212.22; Immigration & Nationality Act § 212(a)(4)(a).

5. See, e.g., Michael D. Shear, Miriam Jordan & Caitlin Dickerson, Trump’s Policy Could Alter the

Face of the American Immigrant, N.Y. TIMES (Aug. 14, 2019), https://www.nytimes.com/2019/08/14/us/

immigration-public-charge-welfare.html (“I am tired of seeing our taxpayer paying for people to come

into the country and immediately go onto welfare and various other things.”) (quoting President Trump);

Proclamation No. 10014, 85 Fed. Reg. 23,441 (April 22, 2020) (“[W]e must be mindful of the impact of

foreign workers on the United States labor market, particularly in an environment of high domestic

unemployment and depressed demand for labor.”); Ben Schreckinger, Donald Trump storms Phoenix,

POLITICO (July 11, 2015), https://www.politico.com/story/2015/07/donald-trump-storms-phoenix-119989

(“[The Mexican people are] taking our jobs. They’re taking our manufacturing jobs. They’re taking our

money. They’re killing us.”) (quoting Donald Trump).

6. See FWD.us, FWD.us Estimates Show Immigrant Essential Workers are Crucial to America’s

COVID-19 Recovery (Dec. 16, 2020), https://www.fwd.us/news/immigrant-essential-workers/; Testimony

of Tom Jawetz Before U.S. House Judiciary Subcommittee on Immigration and Citizenship, “Immigrants

as Essential Workers During COVID-19” (Sept. 28, 2020), https://www.americanprogress.org/issues/

immigration/reports/2020/09/28/490919/immigrants-essential-workers-covid-19/.

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