On May 2, 2023, House Republicans introduced H.R.2 , The Secure the Border Act of 2023. Sponsored by Rep. Mario Díaz-Balart (R-Florida), the expansive proposal represents an enforcement-only approach to migration-related challenges at the United States-Mexico border and beyond. It is a combination of three bills from the 118th Congress: The Border Security and Enforcement Act of 2023, the Orderly Requirements Designed to Enforce and Regulate Latin American Migration (ORDER) Act, and the Border Reinforcement Act of 2023 .
In practice, the bill package would severely restrict the right to seek asylum in the U.S., curtail other existing lawful pathways, place unnecessary pressure on border communities, intensify labor shortages faced by small businesses and essential industries, establish new criminal penalties, and make other significant changes to U.S. immigration law.
This analysis details six major themes and concerns around H.R.2. While it is not intended to function as a comprehensive overview of the sweeping bill , it does underscore key takeaways.
1. The Secure the Border Act of 2023 would restart border wall construction and defund NGOs that provide services to migrants
The bill would increase funding for border barriers and enforcement personnel, while dismantling current practices that relieve pressure on U.S. border communities. In particular, it would:
While some elements of the proposed legislation might prove effective and helpful, like additional investments in personnel and technology at ports of entry, the bill’s enforcement-only focus and failure to address lawful pathways is deeply flawed. The bill’s overarching focus on physical barriers and deterrence measures — but not increased numbers of asylum officers or immigration judges — presents a vision of the U.S.’s southern border where people fleeing violence and persecution would be quickly removed, without meaningful access to protection. Further, by interpreting “operational control” through the circumscribed definition in the Secure Fence Act of 2006, the bill is predicated on an unrealistic standard that the U.S. must prevent all unauthorized crossings along a roughly 2,000-mile border.
Meanwhile, H.R.2’s emphasis on keeping noncitizens detained — and defunding more humane approaches to case management for migrants and their families — could cause undue harm and trauma. A strategic plan for the Border Patrol predicated on information from those who have been “negatively impacted by illegal immigration” may have the adverse effect of demonizing migrants and asylum seekers, instead of promoting policies that recognize their human dignity. Provisions that limit migrants’ and asylum seekers’ ability to fly to their final destinations while they await their adjudications would make it harder for them to reach their friends and families, while also placing unnecessary pressure on border communities as longer-term hosts. And policies that would take away much-needed funding from NGOs for providing direct services to the world’s most vulnerable could further impede the U.S.’s ability to respond to the challenges we face on the ground at the border.
2. The bill would significantly limit asylum in the U.S.
H.R.2 would restrict both access to and eligibility for asylum. In particular, the bill would:
These provisions would make it harder for individuals to request asylum, even in cases where they can demonstrate a well-founded fear of persecution, effectively disqualifying people who would be able to receive protection under the U.S.’s current laws. Taken together, the bill’s restrictions would severely limit asylum for most migrants who traveled through Latin America to reach the U.S.-Mexico border. The new fee requirements could box out asylum seekers without the ability to pay for refuge, while mandatory detention or long-term waits abroad could make it more difficult for migrants to access legal counsel and ultimately win their cases.
Programs such as MPP would also represent a significant safety concern; well over a thousand migrants became victims of rape, murder, torture, kidnapping, and other attacks after the U.S. returned them to Mexican border towns under MPP.
3. The bill would roll back safeguards for migrant children
The Flores Settlement Agreement is the current standard that governs the conditions under which children can legally be held in U.S. immigration detention. This bill would undermine some of the agreement’s most fundamental stipulations, including restrictions on how long kids can be detained, while also limiting access to an existing legal pathway for migrant children. In particular, the bill would:
In practice, these provisions would have significant consequences for children and families seeking safety in the U.S. Although requiring DHS to hold migrant kids and parents together would avoid Trump-era family separations like those resulting from the 2018 Zero Tolerance policy, practices promoting prolonged detention of children and families are likely to cause serious physical and mental health effects .
Expedited processes and timelines for vulnerable children to be screened and returned to their countries of origin would limit access to counsel and meaningful adjudications, potentially returning some minors to dangerous situations in their home countries. Additionally, the bill’s mandatory removal proceedings against undocumented sponsors of migrant kids are designed to deter family members in the U.S. from coming forward to take in unaccompanied children, increasing the number of migrant kids in government shelters or placed with less familiar sponsors. Finally, by restricting eligibility for SIJ, H.R.2 would curb a current legal humanitarian pathway to a green card for vulnerable migrant youth.
4. The bill would narrow the executive branch’s parole powers
Under current law, the DHS secretary has the discretion to grant parole to individuals on a case-by-case basis, because of urgent humanitarian reasons or significant public benefit. H.R.2 would limit that authority. In particular, the bill would:
If enacted, these provisions would constrain the executive branch’s ability to expeditiously respond to national security and humanitarian events. Recently, parole has been used to efficiently admit Afghans, Ukrainians, Venezuelans, and Cubans fleeing violence and instability. It has also provided a vehicle for certain nationalities to come to the U.S. legally, relieving pressure at the U.S.-Mexico border by allowing for a more orderly pathway.
5. The bill would criminalize overstaying a legal visa
H.R.2 would establish criminal penalties for individuals who overstay a visa in the U.S. for ten or more days. In particular, it would:
A sizable proportion of the U.S.’s undocumented community entered the country legally and overstayed a visa. Under current law, overstaying a visa is a civil violation, and those who do so are subject to potential immigration consequences, but not criminal penalties. H.R.2 would change that, by making people who overstay visas subject to criminal charges similar to the ones imposed on those who enter the U.S. without authorization. Such a policy would have far-reaching consequences for a broad swathe of people — a tourist who remained in the U.S. for an extra few weeks, a future spouse awaiting his visa — who have little to do with the situation at the border.
6. The bill would mandate employers to electronically verify the immigration status of their workers
H.R.2 would mandate that U.S. employers use an electronic employment verification system to verify the employment status of their workforce. Under the bill, employers would be required to collect and retain verification that they are not hiring undocumented workers. In particular, the bill would:
During an April 19 markup in the House Judiciary Committee of the Border Security and Enforcement Act of 2023 — one of the bills folded into this larger package — these provisions raised bipartisan red flags around privacy and potential technological errors that could keep even eligible people from working. Because these new verification requirements are not being coupled with legal workforce reforms that would ensure an adequately-sized pool of authorized workers, they threaten to spark alarm in critical sectors that are already facing labor shortages. For example, nearly half of U.S. agricultural workers are undocumented, and such stringent verification requirements could jeopardize Americans’ access to a reliable food supply .
The Secure the Border Act of 2023 would compromise the U.S.’s long-standing tradition of refuge, while restricting existing lawful pathways that bolster our nation’s humanitarian and national security priorities. It would not address what is driving the perception of disorder at the U.S.-Mexico border: our broken immigration system.
Amid a hemispheric displacement crisis that will continue to force migrants and asylum seekers from their homes, an enforcement-only approach like this one will not provide U.S. officials with the infrastructure and resources they need to adequately respond. Instead, Congress must work together on bipartisan reforms that pair smart border security with lawful and orderly pathways to the U.S., while also reinforcing our nation’s longstanding commitment as a safe haven for those fleeing persecution.
Author: Alexandra Villarreal