How immigration policy degenerated into unilateral action

For some ten years, immigration policy has lost any serious bi-partisan character and has become a weapon wielded by the parties. This happened as popular partisanship on immigration become much more severe.

Immigration legislative and executive branch actions have not been logically corelated to the facts, such as overall trends in unauthorized persons and enforcement. Total unauthorized population as declined since before the financial crisis. Illegal immigration: arrests rose under Obama (mainly by aggressive targeting persons with criminal records); declined under Trump. The immigration court backlog surged under Trump. No serious initiative was made to improve workforce enforcement through mandatory verification of legal status (e-Verify).

DACA was introduced in 2012 by Obama executive order. (see history since initial Executive Order of June 15, 2012).

A thousand descreet executive actions were taken by Trump to curtail immigration, from attempting to destroy the refugee resettlement infrastructure in the country to increasing fees for Green Card holder eligible for citizenship to naturalize. (Each action tracked and Biden reversals).

This year, various bills were submitted (go here) but there was no seirous attempt at bipartisan agrement (as has been tried in 2007, 2013, 2017 and most recently in 2018). Democrats instead have tried to legalize the majority of unauthorized persons through a simple majority reconciliation bill, without any Republican votes in the the House and Senate. This has involved exploiting old obscure provisions in immigration law.

The Senate parliamentarian opined in September about the initial effort. Dems then considered a “registry” strategy, and then attempted a parole provision. The Senate Parliamentarian’s opinion on December 16 nixed the parole approach. Excerpt from her opinion:

“The proposed parole policy is not much different and in its effect than the previous proposals we have considered. In order to effectuate the policy, the parole proposal changes the contours of the current parole in place program, making it a mandatory award status for qualifying applicants rather than the current discretionary use of the [Homeland Security] Secretary’s authority and assessment, which the USCIS website states that the Secretary grants ‘only sparingly.” The grant of parole will be accompanied by mandatory issuance of work authorization, travel documents, and a deeming of qualifications for real ID….”

How Immigration reform bills will affect immigrants

The Center for Migration Studies made estimates, based on over six independently reform initiatives proposed in 2021, of many persons currently in the United States would have their illegal or legally vulnerable status adjusted to permanent legal status. The CMS analysis does not address the proposed recapture of unused visas nor the “parole” provisions in the Build Back Better (reconciliation) bill. There is a lot of overlap among the initiatives.

It is not clear to me what would be the total maximum number of persons positively affected were all the provisions of all the initiatives done. The U.S. Citizenship Act, Biden’s bill of early 2021, which in effect is a kind of omnibus bill, would affect 10.3 persons. It would likely make unnecessary the parole provision in the reconciliation bill.

The Dream Act of 2021 would legalized 2.3 million persons (compared to about 900M persons under the administrative program initiated by Obama).

Citizenship for Essential Workers Act: 7.2 million (of which 5.5 million are workers, the others are spouses and children).

Farm Workforce Modernization Act: 300K.

Temporary Protected Status adjustments to permanent status: over 1.5 million persons from many countries at least 100,000 of whom from El Salvador, Haiti, Venezuela, and Honduras. Currently, TPS status persons are from 10 countries.

U.S. Citizenship Act: 10.3 million. (Go here and here.) 

Time line for Stay in Mexico Policy Jan 2019 – Dec 2021

January 2019 Trump Administration introduces the Migrant Protection Protocols (MPP). Usually referred to as the “Remain in Mexico” program. Under MPP, individuals who arrived at the southern border and asked for asylum (either at a port of entry or after crossing the border between ports of entry) were given notices to appear in immigration court and sent back to Mexico.

March 2020 The Supreme Court, reversing an appellate court order, allows the Trump administration to maintain the Remain in Mexico Program. The Justice Department told the court that without a stay from the Supreme Court the appeals court’s ruling was “virtually guaranteed to impose irreparable harm by prompting a rush on the border and potentially requiring the government to allow into the United States and detain thousands of aliens who lack any entitlement to enter this country, or else to release them into the interior where many will simply disappear.”

March 2020 Candidate Biden tweets “Donald Trump’s “Remain in Mexico” policy is dangerous, inhumane, and goes against everything we stand for as a nation of immigrants. My administration will end it.”

January 2021 Biden’s DHS on the first day of his administration suspends all new enrollments in MPP, ending people being sent back to Mexico. It undertakes to terminare the program.

August 2021 As part of a lawsuit brought by the states of Texas and Missouri, a federal judge orders the Biden administration to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the Administrative Procedure Act” and until such a time as the federal government has sufficient detention capacity to detain asylum seekers. The Supreme Court agrees with the ruling.

September 2021 the Biden administration discloses that it had begun internal deliberations about reinstating a “lite” version of MPP and was engaged in diplomatic negotiations with the government of Mexico, and that no person could be sent back to Mexico without that country’s cooperation. However, DHS Secretary Mayorkas writes in October that MPP should be terminated.

October 2021 DHA issues another termination of the program designed to overcome the objections to its initial termination (Texas law suit),

December 2021 The Biden Administration introduces a revised version of MPP. Per the administration, changes to the Trump program include better access to legal representation, resolution of applications within six months, safer shelters in Mexico, work permits in Mexico, and health care.

Go here, here, here, here here and here.

The immigrant sections in the November 19 reconciliation bill

Bloomberg reports:

Parole: the bill contains temporary work permit and deportation protection program, known as parole, that Democrats believe has stronger prospects in the Senate.

Around 6.5 million people who’ve been in the U.S. at least a decade would receive parole under the plan, according to a Congressional Budget Office estimate. That is 60% of unauthorized persons. Of those, 2 million immigrants who wouldn’t otherwise be eligible could eventually obtain permanent status as immediate relatives of U.S. citizens.

Parole would be available to eligible applicants who entered the U.S. with or without inspection by U.S. border officials before 2011, as well as for immigrants who already have separate humanitarian parole status. Work permits and deportation protections would last for five years and could be renewed until the program expires in 2031.

Visa recapture: The bill would recapture unused family and employment-based visas back to 1992, and allow some foreigners to fast-track applications to adjust to legal permanent resident status and sidestep some numerical limits on visas, including per-country caps that have left hundreds of thousands of Indians in limbo.

The bill would also allow diversity visa lottery winners who couldn’t finalize their status or enter the U.S. due to Covid-19 or Trump-era immigration restrictions to reapply. It would provide $2.8 billion to U.S. Citizenship and Immigration Services to process parole and green card applications.

Proposed new pathways for non-farm Latin American workers

Mexico, Central America and the U.S. share a transnational labor market for low-skilled workers, but there has never been a comprehensive U.S. policy about managing this labor market. One approach is to introduce large numbers of multi-year visas.

The Migration Policy Institute recommends a long- term solution for temporary non-farm low skilled immigrant workers in the U.S., by revising the H-2B visa program, which is for non-farm labor, and has a cap of only 66,000 visas. Farm labor is covered by H-2A. (Here and here are analyses of H-2B):

The United States and its regional partners have short, medium, and long-term opportunities to leverage the US employment-based immigration system to assist in managing migration from Central America.

Legislatures could create a 1 to 3 year year-round temporary visa for the central Americans to work in specific industries. Lawmakers can also create a broader 1 to 3 year temporary visa for agricultural and non-agricultural workers that could create additional openings for prospective migrants.

The US can create pathways for temporary workers to access permanent residency. Individuals with H1B high skilled temporary visas they have the opportunity to receive sponsorship for a green card but this option does not exist for individuals on H-2B visas. Creating a new temporary to permanent visa or a pathway to green card for individuals with H-2B visas would empower workers to access more jobs.

A third option would be for the US to amend immigration law to allow workers on temporary visas to switch employers after a specific period of time, allowing workers to leave problematic employment relationships without jeopardizing the legal state.

Here is an analysis of the farm worker provisions in proposed 2021 legislation, which has the backing of the farm industry,

New York Times calls for an end of using Title 42

The New York Times calls for the end of using Title 42 as a tool for immediately returning asylum seekers at the Mexican border, saying that its justification, COVID risk, is no longer valid. Several administration officials have quit with scathing criticism.

As I’ve mention before, a key failure in the management of the border is dysfunction in our legal system, which inspires hope that persons can enter the country. As early as April, 2021, the backlog of cases, which was about 540,000 at the start of the Trump Administration, had ballooned to 1.3 million. The system is so backlogged that legally admitted asylees wait for a year to get formal permission to work.

In addition, the multi-state refugee management system in the world is broken. This is the case with the U.S. and the EU. The system lacks an assured, stable means of international coordination among countries for the movement of refugees. Because of the vast differences in economic, social and political outcomes depending where the refugee ends up, coordination among countries is both essential and very difficult in terms of politics and ethics.

Most recently, Belarus is importing refugees to create a crisis at its borders with EU neighbors.

According to the U.N, there were 26 million refugees, half under the age of 18. “There are also millions of stateless people, who have been denied a nationality and access to basic rights such as education, healthcare, employment and freedom of movement.”


The United States, like European countries (which has incurred a huge wave of asylum seekers since 2015) and most other countries are signatories to the U.N. convention on refugees, signed in 1951. A refugee according to the U.N. has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion…” .

The definition of an asylum candidate in American law is a refugee who entered the U.S. American law uses a standard of “credible fear” to establish “well-founded fear.”


Why immigrant policy making is so hard to do

A reposting from 2016:

Four countries were expressly founded on the necessity of immigration – The United States, Canada, Australia and New Zealand. Immigration was essential to the cultures and economics of these countries from the start. Gary P. Freeman of the University of Texas wrote in 2010 that no single piece of postwar legislation, with the possible exception of the Medicare Act, has had a more profound effect on the United States than the 1965 immigration law.

In 1995, he explained why immigration policy in the U.S. is both elusive and expansionist. (“Modes of Immigration Polities in Liberal Democratic States”.) First, migration takes time to develop, starting small and isolated, and grows without the native born population grasping what is going on.

Then, the direct benefits of immigration go to few while the costs are diffused. In the 2010 article Freeman lists the primary beneficiaries: immigration lawyers, ethnic groups, high tech employers, universities, religious institutions, hospitals, nursing homes, the hospitality industry, construction, and labor intensive sectors like meat packing, chicken processing, textiles, agriculture, and low-skilled services such as housekeeping and landscaping. (“Can Comprehensive Immigration Reform Be Both Liberal and Democratic?”)

Immigration politics is heavily client-oriented, largely out of view and without extensive public debate. An example is Senator Jeff Sessions of Alabama, who per his website “committed to immigration reform that serves the national interest – not the special interests – and that curbs the unprecedented flow of immigration that is sapping the wages and job prospects of those living and working here today.” A subcommittee he shares has denied the Dept. of Labor power to better enforce prevailing wage standards for H-1B temporary worker applicants.

Further, In liberal democracies, nativist talk about immigrants is viewed as disreputable. Strong anti-immigration politicians are usually roundly criticized. Popular opinion is generally more restrictionist than organized political party positions. Per Freeman, the national political positions are ineffective and contradictory, seeking to accommodate as many as possible without forcing the issues. Thus, per Freeman, liberal democracies have an expansionist bias.

“Parole” to legalize immigrant status in budget reconciliation bill

This is a very brief summary of the parole provision in the reconciliation bill. Parole is a provision in immigrant laws to be used generally for designated populations to obtain legal status in the U.S. outside the main channels of immigration. Go here for my major source.

This is one-sided immigration reform: legalization of most unauthorized persons without imposing mandated e-verify. 

The parole protections in the bill would shield immigrants from deportation for five years and provide a five-year, renewable work authorization, available to anyone illegally in the country before January 1, 2011.

There are about 10 – 11 million unauthorized persons in the U.S. today. The tenure of unauthorized persons in the U.S. has lengthened considerably in the past 20 years, after the surge in late 1990s – early and mid 2000s. Thus this parole provision will have an tremendous impact. About seven million immigrants would be eligible for the work-authorization program, according to an estimate from the Migration Policy Institute.

The provision does not include access to green cards, although some ways will be available for some beneficiaries to obtain green cards.

Parole has been used the past in 1956, for refugees from the Hungarian Revolution, for Cuban refugees in 1960, for the Mariel boatlift in 1980s. There is no notable use of Parole for persons already in the U.S.

Also go here for a highly critical article by the Center for Immigration Studies.

The Congressional Research Service analyzed the Parole provision in depth in 2020.

Green card expansion in budget reconciliation bill

Here is a very brief summary of one of the immigration provisions in the Budget Reconciliation bill: the release (“recapture”) of at least 400,000 slots for green card issuance, numbers which were authorized in past years but unused.

Per the Wall Street Journal, In all, about four million people sponsored by a family member are in line for a green card. About 1.2 million more people who are sponsored by an employer—and typically already here on temporary visas—are also waiting for a green card.

The proposed measure would recover about 400,000 green cards, slightly over half for families and the rest for employers, according to a Congressional aide familiar with the estimate.

Additional measures would allow immigrants to jump ahead in line for an extra fee, either $2,500 or $5,000 depending on the category. These will be in addition to the recapture inventory of unused visas. (Go here.)

The Senate parliamentarian must approve the provision for acceptance by the Senate, as having a significant impact on the budget. The parliamentarian has implied it will be accepted. Such a provision was accepted in 2005.

The WSJ goes on to say that the coronavirus pandemic shut down immigration offices around the country and U.S. consulates around the world, halting visa and green-card processing, and leaving several hundreds of thousands of green cards unused. I posted on this a month ago, here.

The Center for Immigration Studies calls visa recapture a scam.

The asylum applicant backlog

As of April 2021, the number of pending asylum application reached a record high, nearly 400,000, representing a total of more than 600,000 asylum applicants who are awaiting a decision on their fate. 94% have not yet received an interview, while the remaining 6% have been interviewed but are waiting at a final decision.
This from a letter signed by Congressmen

In FY 2021 there may be 60,000 asylum awards. That means the backlog is equivalent to over six years.

The backlog surged upwards in the Obama administration. 20% of asylum officer positions are unfilled. Many asylum applicants have been waiting for five years. The Trump administration tried to make it more difficult for asylum seekers, for instance by barring them from working legally in the U.S, for one year (it was, and is now, six months). (Go here.)

Note: 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.