Status of immigration bills as of December 8 2022

Now that we are closing in on Democratic control of the House, I want to review the pressing  legislative initiatives for immigration.  There is no assurance that any of these initiatives will meet the 60 vote threshold in the Senate.

The Eagle Act (HR 3648), originally introduced in 2021, will remove the country caps for H-1B visa. The main beneficiary of the act will be Indians. (Text here.)

Farm Labor, through the Farm Workforce Modernization Act of 2021 (HR 1603), passed by the House at that time. (Go here for the text). The farm industry has long tried to legalize its unauthorized workers. (Go here for my posting in May 2022). (Go here for the text,) Here is an argument for the act.

The Dream Act of 2021,( S. 264), which is the latest iteration of legislative efforts since Obama’s executive order of June 2012 which created legal protection for children brought illegally into the country but has antecedents going back to 2001. (Here is a recent argument for passage now.)

A Senators Tillis and Sinema bill, being rushed into introdution as of now, would lealize Dreamers, authorize Title 42, and add border security. The Wall Street Journal has endorsed it

The Eagle Act

The Eagle Act would do more: address a backlog in conversation of H1-B visas to Green cards, but will do that not by increasing the total number of Green Cards but claiming a share of them; and removing the aging out risk for children here due to dependency on parent visas, who reach 21 years of age. (Here and here.)

The text of the Eagle Act has as of today the original 2011 language unchanged: HR 3648, Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2022.

The White House endorsed the Eagle Act on December 6.

Criticisms

I cite two.  On is an opinion article on The Hill on November 11 chastises the Democrats for failing to fashion a bill which would be more palatable to Republicans. The author harks back to the most recent comprehensive reform bill, in 1986, which failed in stemming illegal migration, though the initiatives do not address general amnesty.

Second, the American Hospital Association criticizes the bill because it is almost exclusively focused on temporary tech workers and does nothing about the nursing shortage. The AHA writes: “Most foreign-trained nurses are not qualified to come into the U.S. on an H-1B visa. They instead must apply for legal permanent resident status, or a green card, to be granted employment-based immigration for themselves and their family members. We continue to support the green card process as the most effective way to offer permanent employment for nurses.”

Afghan admission to the US, as of late 2022

The immediatepost war admission to the U.S. of persons from one of our post WW 2 wars was about 100,000 (go here). We are close to that figure now…subsequent admissions will be in the 100s of 1000s.

From the New York Times: The [U.S] government has helped resettle more than 88,000 Afghans in the United States, according to the Homeland Security Department, many of them with temporary humanitarian parole status. And since the beginning of the Biden administration through Nov. 1, the government issued nearly 19,000 Special Immigrant Visas, which are reserved for Afghans who were employed by or on behalf of the U.S. government in Afghanistan.

But approximately 63,000 applications for such visas are still being processed, the State Department official said. And because each applicant has, on average, more than four eligible family members who would also receive the visa, according to the State Department, the fate of more than 315,000 Afghans hangs on the adjudication of those applications.

A key voluntary organization is Evacuate Our Allies.

The Afghan Adjustment Act would:

Provide a pathway to permanent legal status for Afghan parolees and Afghans who were lawfully present in the United States prior to the Taliban takeover of Afghanistan.  Establish an Interagency Task Force responsible for creating and implementing a strategy to continue the relocation and resettlement of eligible Afghan partners from Afghanistan over the next ten years, and providing much-needed intra-governmental coordination.  Require the U.S. Department of State to respond to congressional inquiries related to SIV applications or U.S. Refugee Admissions Program (USRAP) referrals. Expand SIV eligibility for Afghans who worked and served alongside U.S. forces, including members of the Afghan National Army Special Operations Command, the Afghan Air Force, the Female Tactical Teams of Afghanistan, and the Special Mission Wing of Afghanistan, as well as certain Afghan family members of U.S. service people and veterans.

SIV – Special Immigrant Visa – for Afghans and Iraqis is described here and here.

Asylum officers and the backlog: a time line

Pre-Biden: Immigration courts encounter immense backlogs, in part due to failure of Obama and Trump administrations to obtain from Congress funding for additional judges. Ge here.

August 2021: The Biden administration says it wants to assign to asylum officers authority to interview and decide on asylum cases, rather than depend entirely on immigration courts.  It aims to hire an additional 1,000 asylum officers and another 1,000 support staff, a senior DHS official told Reuters ahead of the announcement. The hiring spree would more than double the current crop of about 800 asylum officers and could be funded either by Congress or immigration application fee increases. (Reuters),

December 2021: Asylum court case backlog reaches 54 months

March 24, 2022DHS issues rule.

Per the NY Times, Under the new policy, which the administration released on Thursday as an interim final rule, some migrants seeking asylum will have their claims heard and evaluated by asylum officers instead of immigration judges. The goal, administration officials said, is for the entire process to take six months, compared with a current average of about five years. The plan is to release many asylum seekers through a parole status while they go through the process, which critics say will draw even more hopeful migrants to the border. (Go here.)

April 2022: Texas AG Paxton sues to prohibit the use of asylum officers for credible threat interviews.

June 2022: DHS begins to refer approximately a few hundred noncitizens each month to USCIS for an Asylum Merits Interview (AMI) following a positive credible fear determination. (Go here.)

Want to become an asylum officer? Go here.

 

Visa appointment wait times  

How long the wait to get an interview. As of June 2022

India: tourist 291 days, student 43 days

Kenya: tourist, 664 days, student 405 days

Indonesia: tourist 50 days, student 4 days

Saudi Arabia: tourist 133 days, student 43 days

South Africa: tourist 238, student 29

Thailand: tourist 180, student 21

Uruguay: tourist 604, student 165

Venezuela: office closed

From here.

Humanitarian parole for Ukraine refugees

Per the Niskanen Center, the Biden administration implemented today (4/21/22) United For Ukraine, an innovative approach to rapid refugee intake – authorizing households to directly accept Ukrainian refugees, bypassing the conventional channel of central intake and then assignment to one of the many resettlement organizations in the United States. In effect it is a private sponsor-based program, though it might not be formally stated as such.

This is a potentially explosive change in refugee acceptance. Enormous pressure will be put on Washington to expand a privatized refugee system to many comers. For instance, there are today in the United States about 5,000 Banyamulenges from the Democratic Republic of Congo. These people are under threat of genocide. We can expect that many of these people here will privately sponsor their relatives and others for refugee status.

This scenario can apply to any population experiencing refugee characteristics and linked to a population in the United States ready to sponsor. A refugee is one who has suffered “persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion.”

Go here for an overview of the sources of refugees.

Per the Center, Humanitarian parole is part of the U.S. policy toolkit long used to address emergency situations. Parole gives the administration the authority to admit any individual for a temporary period — up to 2 years — if their admission provides significant public benefit or satisfies an urgent humanitarian need. Beneficiaries of the Ukraine program will be welcomed by a supporter who will help facilitate their transition in the U.S. By tapping fiscal sponsorship as a formal pathway for displaced Ukrainians, the U.S. can welcome refugees into the U.S. in a quick and orderly manner while linking them with Americans who want to help them settle and support them financially.

Parole lasts for a maximum of two years. After it expires, individuals who want to remain in the U.S. must apply for asylum (which may be tricky in its own right), but the current asylum backlog stands at more than 1.6 million cases, meaning these Ukrainians could remain on temporary status for many years while they wait for a decision from the backlogged immigration courts. A more expeditious approach is for Congress to pass legislation that offers permanent status to Ukrainians — similar to the Afghan Adjustment Act now pending in Congress.

New fast track asylum system

Within 60 days the Administration will implement a new policy of having asylum cases handled by asylum officers instead of immigration judges. The policy was submitted for public review in mid 2021. It will take some time to hire up in order to have an impact, as there are 670,000 pending asylum cases. In FY 2021 perhaps 60,000 cases were resolved.

This new system is supposed to resolve an application within six months, as opposed to years. I have noted before that the backlog problem is similar to the border control problems on the Mexican border and the Special Immigrant Visas for Afghan translators: the growth of an elephantine mass of legal processes which top executives in the State Department and DHS don’t really care much about compared to other priorities. (here and here.)

The expected elimination of Title 42 removals from the border will further add to the asylum application backlog.


Arguing for more immigration court judges


The Bipartisan Policy Center testified on January 20 to the House Judiciary Committtee subcommittee on immigration and citizenship. The immigration court backlog was 1,596,000 in December 2021. While Trump was in office, the backlog soared from 542,000 to 1,290,000, then rose by about 300,000 in Biden’s first year. (backlog data from TRAC).

In 1998 there were about 200 judges. In 2016 there were about 400 judges. There are about 500 immigration court judges today. Between 2016 and the end of 2021, the case backlog rose by over 300% while the number of judges rose by 25%

Summary of the testimony: A pattern emerged in 2014 in which border crossers did not try to, but rather, sought out being arrested and seek asylum. This led to Homeland Security releasing many rather than hold them in detention awaiting their asylum court hearing. Making the judges work faster, which was the Trump approach, demanding faster court processing, is not the answer. The Center recommended in 2019 hiring 375 more judges, which would cost $400 million vs $25 billion for Trump’s border wall. Hiring 100 more judges would reduce detention costs by close to one billion dollars.

Biden State of the Union Address: open citizenship up to over 10 million persons

President Biden called for Congress to “Provide a pathway to citizenship for Dreamers, those on temporary status, farm workers, and essential workers.”

The proposal will effectively legalize 90% of unauthorized people in the U.S. Consistent with Democratic proposals, no mention was made of verification of employable status (e-Verify) without which immigration law enforcement will remain gutted.

In December 2021 I estimated that (1) about 2.3 million persons will be legalized through Dreamer legislation, (2) 5.5 essential workers and 1.7 of their spouses and children will be legalized through essential worker legislation and (3) about 300,000 farm workers (at a minimum) will be affected.

About 750,000 persons are now in the U.S. under the Temporary Protected Status category, including over 300,000 Venezuelans and a quarter million from El Salvador. Here and here are backgrounders on TPS.

Adding all up comes to about 9.8 million persons who arrived un authorized, and 750,000 persons here legally but on a temporary basis.

Here and here are backgrounders of Dreamer (DACA) legislation, including bills filed in calendar year 2021.




Republican Immigration proposal of February 2022

Some Republican House members, led by Freshman Maria Elvira Salazar, filed on February 8 a Dignity Act bill for immigration reform. The bill is summarized here and here. The bill highlight a labyrinthian process of normalization of unauthorized persons which includes levies on most, a kind of reparations, admitting to having committed a felony. Legalization can be held up if a political committee decides that more than 10% of persons crossing the Mexican border escape apprehension (apparently ignoring visa overstays).

Salazar was one of nine House Republicans who voted in March 2021 for the Democratic-created The American Dream and Promise Act. Democratic legislative proposals for immigration reform in 2021 included Biden’s Citizenship Act of 2021, the Farmworker Modernization Act, the Citizenship for Essential Workers Act, and the Dream Act of 2021 (go here for them all).

To add to the confusion, Salazar was a co-sponsor of a Republican reform bill in early 2021 which was also called the Dignity Act. 

The last congressional reform bill which had bipartisan co-sponsorship was likely one introduced in 2018 (go here).

And, the 2020 Republican Party platform ignored any serious effort to normalize legal status and focused on the border wall and draconian measures.


How Australia, Canada and US abandoned race based immigration

From the 1960s continuing through the 1970s Australia (1966), Canada (1962) and the United States (1965) abandoned race base immigration laws.  Within ten years, Australia and Canada developed an employment-oriented immigration system. This 2020 Bipartisan Action Committee  report by Cris Ramón and Angelina Downs explains how this happened there and not in the U.S. Key to an employment-based system, the report says, is centralized policy making in the executive branch and heavy involvement of economic elites.   This political culture allows for drastic changes on policy based on evolving facts, and with the acceptance of the public. This is not present in the U.S.

In the United States, the die was cast in the 1965 immigration reform act, which conservatives in Congress tilted towards family based immigration expecting that this would allow European-heavy immigration to persists. Also, there was no investment in the Executive Branch towards creating a power to devise and manage an employment-oriented points system – as was the case in the other two countries.

In the United Kingdom, the open-ended immigration policy for Commonwealth members was shut down by acts during 1962 – 1971.  The “hostile environment policy” of recent years sought to extirpate Caribbean immigrants from the years before 1971.