Hundreds of thousands of people come to the U.S. each year through many immigration programs to reunite with family, work, contribute to the economy, and seek humanitarian relief. Despite the foundational role of immigration in America’s formation and continued growth and success, Congress has failed for three decades to significantly update the immigration system, and even the most popular immigration policy proposals continue to falter year after year. As a result, the U.S. is falling far short of its commitment to be a place of refuge for those in need, American families are struggling to navigate complex systems to stay together, and our economic and global competitiveness is increasingly at risk. Immigration is a competitive advantage and a critical part of America’s future—our elected leaders must demonstrate leadership by working together to strengthen and protect it.

Here is how we got here.

2014-2020: Legislative stalemate and the rise of restrictionism

The House’s failure to vote on the 2013 comprehensive immigration reform bill signaled the end of comprehensive reform efforts in Congress.

Following the bill’s failure, President Barack Obama issued a slate of executive orders intended to provide temporary relief to certain undocumented immigrants and bolster the outdated employment-based immigration system. While immigration policy experts and immigrant communities applauded the new policies—many of which remain in place today—some leaders in Congress accused the President of overstepping his authority, and refused to participate in further bipartisan immigration discussions.

As a result, far fewer immigration proposals were put forward or advanced in this period. The DREAM Act (discussed below) did not receive another vote until Democrats took control of the House of Representatives in 2018, and various proposals to modernize employment-based immigration or provide for immigrants who were veterans were similarly stalled.

At the same time, immigration restrictionists became more active in Congress, bolstered in part by presidential campaigns that were stoking anti-immigrant sentiment and proposing aggressive restrictionist policies. Following President Trump’s election in 2016, his administration began working with restrictionist leaders in Congress to introduce legislation like the RAISE Act, which would have cut legal immigration levels by 50%.

2012 to 2016

While Congress delayed in passing an immigration reform bill, President Obama took executive actions, targeted at protecting the ability for immigrants in the United States to remain in the country and work, through the creation of the Deferred Action for Childhood Arrivals (DACA) policy.

In 2014, after the failure of the Gang of Eight’s bill to pass Congress, President Obama took further administrative executive action to expand DACA and establish Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a program providing deportation protection and work authorization to parents of U.S. citizens and green card holder7 (the Supreme Court ultimately prevented implementation of these policies before they could go into effect, and the Trump Administration subsequently rescinded them).

President Obama also made improvements to the employment-based immigration system, including establishing a parole program for international entrepreneurs, improving access to work authorization for spouses of H-1B visa holders, and expanding the Optional Practical Training program for international graduates. President Obama also put in place enforcement priorities that reduced the arrest and deportation of individuals without criminal convictions.

2016 to 2020

President Donald J. Trump dramatically further extended the scope of executive action, overseeing more than one thousand immigration policy changes. These executive actions, agency directives, and rules primarily were focused on restricting the number of people who could immigrate to the U.S., and making it more difficult for immigrants already in the country to stay. Some of the most impactful actions included:

• Attempting to end the DACA policy and Temporary Protected Status (TPS) programs
• Virtual shutdown of the asylum system, including the “zero tolerance” family separation policy, creation of “Remain in Mexico” Migrant Protection Protocols, and instating the Title 42 border policy
• Sweeping travel bans on many Muslim-majority and African countries
• New requirements and limitations for employers and workers in employment-based immigration programs
• Severely cutting the number of refugees annually allowed to resettle in the U.S.
• Limiting pathways to naturalization and lawful permanent residence, such as by changing the exams, broadening public charge factors, and drastically increasing fees

According to FWD.us, more than half (47%) of immigrants in the U.S. are naturalized citizens, more than a quarter (26%) are lawful permanent residents (LPR), 6% are on temporary visas, and 21% are undocumented. Immigrants live in every state in the nation, but more than half live in California, Texas, Florida, or New York. About 24% of immigrants are originally from Mexico, but the makeup of new immigrants is tilting more toward Asia.

ECONOMIC CONTRIBUTIONS OF IMMIGRANTS

Some 30 million immigrants were working in the U.S accounting for 17% of the civilian labor force.

ESSENTIAL WORKERS

Immigrants represent a substantial, and thus critical, part of America’s essential workforce responding to the COVID-19 pandemic. Nearly 23 million immigrants are essential workers, and two-thirds of them are serving on the frontlines. These medical, agricultural, food service, and other immigrant essential workers make up nearly 1 in 5 individuals in the total U.S. essential workforce.

Undocumented immigrants are one of the largest groups among the immigrant essential workforce, making up 5.2 million essential workers, of which nearly 1 million are Dreamers, immigrants who came to the U.S. at a young age. An additional half a million immigrants with temporary status work in essential industries, including 160,000 in essential telecommunications, information technology, and financial fields, 130,000 providing medical services, and 70,000 providing educational services.

UNDOCUMENTED IMMIGRANTS

As of 2021, some 10 million undocumented immigrants lived in the United States. According to FWD.us analysis, most undocumented immigrants are long-term U.S. residents; more than two-thirds have lived in the country for at least ten years.

Many undocumented immigrants came to the United States at a young age and have known no other country as home; others have worked in the U.S. for decades. More than a third are the parent or spouse of a U.S. citizen.

Undocumented immigrants have at times been provided some processes to adjust to a legal status, but current immigration law makes that nearly impossible—an undocumented immigrant who leaves the U.S. and attempts to re-enter legally would generally be barred from reentry for many years. This keeps millions of people stuck in limbo, living in constant risk of deportation and family separation.

Using our Population Estimator tool below, you can see how the undocumented population breaks down nationally and by state and Congressional district.

DREAMERS & DACA

About 3 million undocumented immigrants in the United States are “Dreamers” who arrived to the United States at a young age and have grown up here.

Roughly 600,000 Dreamers are currently protected by the DACA policy, which provides them with limited protection from deportation and authorization to work. DACA has been one of the most successful immigration policies in history. Among current DACA recipients, the average age is 28, and the average DACA recipient has lived in the U.S. for 22 years. Almost all DACA recipients have graduated high school, and nearly half (46%) have attained some college education. Most DACA recipients are working: more than 80% of DACA recipients participate in the labor force, and have contributed more than $100 billion to the U.S. economy since the policy was first implemented. Meanwhile, more than one-third of DACA recipients are married, and more than one-third have at least one child at home.

However, most Dreamers are not protected by DACA. Some Dreamers would be eligible for DACA, except a federal judge barred the government from processing initial applications; more than 90,000 applications for initial DACA are sitting at USCIS today.

Even more Dreamers arrived in the United States too recently, and cannot meet DACA’s arrival date requirements. This includes 600,000 students in K-12 classrooms across the U.S.. According to FWD.us estimates, about 100,000 undocumented students will graduate from high school each year for the next five years without being able to access DACA.

From FY 15 to FY 19 (the most recent pre-COVID-19 years), an average of 9,745,000 visas was issued annually for individuals to enter the United States. Most come on a temporary basis, using short-term “nonimmigrant” visas; others move to the U.S. permanently as lawful permanent residents, using long-term “immigrant” visas (or “green cards”). Many will eventually apply to naturalize as U.S. citizens. The immigration system is a complex road map made up of dozens of different programs and pathways.

PERMANENT IMMIGRATION (GREEN CARDS)

Family-based Immigration

Family-based immigration enables U.S. citizens or LPRs to sponsor certain family members for a green card.

The Immediate Relative (IR) categories have no numerical limits and are used for U. S. citizens sponsoring spouses, unmarried minor children, and parents, and have no numerical limits.

The Family Preference (F) categories are for U.S. citizens sponsoring unmarried adult children, married children, or siblings, as well as for lawful permanent residents sponsoring spouses and unmarried children. The total of all Family Preference categories is capped numerically at 480,000 (plus unused employment-based numbers from the previous year, minus the number of immediate relatives admitted the previous year, with a floor of 226,000).

U.S. citizens may also sponsor a fiancé/fiancée for a temporary “K” visa, which serves as the basis to become a green card holder upon marriage. Derivative beneficiaries (the children or spouses of those being sponsored for a green card) may also qualify for a green card in these categories.

In recent years, family-based immigration has accounted for two-thirds of all permanent immigration (see table below for numbers). FWD.us estimates that more than 4 million people are stuck in family-based immigration backlogs, waiting to reunite with their family in the U.S.

Employment-based Immigration

Employment-based (EB) green cards are generally issued based on a tiered preference system.

For green cards, there are five “preference” categories (numerically capped, see table below for details), prioritizing those with professional accomplishments and ability, followed by those considered to be “special immigrants,” and investors (see our table for a full breakdown).

The annual numerical limit on employment-based immigration is 140,000 plus any unused family-based numbers from the previous year.

The employment-based immigration system also faces a sizable backlog. FWD.us estimates that more than one million skilled workers and their immediate family members are stuck waiting in backlogs, with some individuals waiting decades from first filing to being eligible to adjust status.

Diversity Visa Lottery

If a country’s nationals were granted 50,000 or fewer green cards during the previous five years, they are eligible to apply for a diversity-based visa (which becomes a green card upon entrance to the U.S.). 50,000 visas are available in this category each year; in FY 2020, more than 14 million people submitted qualified applications in hopes of being selected in the lottery.

Minimum requirements include a high school education or two years of work experience within the previous five years, and successful passage of a medical exam and background check.

Green Card Annual Issuances (Pre-COVID-19)

From 2013 to 2016, the number of new LPRs annually was generally increasing, ranging from 991,000 in 2013 to nearly 1.2 million in 2016.

However, that upward trend has shifted in recent years. In 2019, 1,031,765 new LPRS were admitted, a decline of 151,740 from 2016. Following the onset of the COVID-19 pandemic, the numbers dropped even more precipitously; in FY 2021, the most recent year for which data are available, only 740,002 individuals were granted permanent resident status.

Permanent immigration (green card) categories

Below is a table describing the major permanent immigration green card categories (including annual numerical limits and the number of people granted green cards in each category for the most recently available fiscal year), followed by brief descriptions and additional information on the major categories.

a. Categories in which the number of LPR recipients exceeds the statutory annual numeric limit are largely due to timing differences between when LPR status is officially granted, and when immigrants actually arrive in the United States and are counted by DHS as green card recipients. These differences also result from the “roll-downs” of unused visa numbers from higher-priority categories. For more information, see Table 1 in CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview.
b. The Immigration and Nationality Act provides 40,040 EB-3 immigrant visas each year. However, beginning in FY 2002 that annual ceiling has been reduced by up to 5,000 each year to accommodate adjustments made under the Nicaraguan and Central American Relief Act (NACARA, Title II of P.L. 105-100). The 5,000 offset is temporary, but it is unclear for how many years it will remain in effect to handle these adjustments of status.
c. The Immigration and Nationality Act provides 55,000 diversity immigrant visas each year. However, beginning in FY1999 that annual ceiling has been reduced by up to 5,000 each year to accommodate adjustments made under the Nicaraguan and Central American Relief Act (NACARA, Title II of P.L. 105-100). The 5,000 offset is temporary, but it is unclear for how many years it will remain in effect to handle these adjustments of status.
d. For more information on these categories, see CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview.

In addition to employer- and family-sponsored immigration, the United States also provides temporary and permanent immigrant options, including refugee and asylum programs, for individuals fleeing violence, persecution, natural disasters, and other dangerous situations.

THE REFUGEE PROCESS

Immigration law defines a refugee as someone “who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” If an individual is granted refugee status, they can be resettled in the United States and access a number of resources and benefits, including being able to apply for a green card. The United States’ commitment to welcoming refugees is enshrined in the 1951 UN Refugee Convention.

The refugee process generally begins when an individual seeking relief registers with the UN Refugee Agency. After initial screenings, they are referred to receiving countries based on an assessment of their vulnerability and needs. Individuals referred to the United States then begin a rigorous screening process involving interviews, biometrics, background and security checks, and medical exams. If they are approved, they will have travel arranged to bring them to the U.S., where refugee resettlement agencies will find a place for them to live and help them access financial support, employment assistance, and other provided services.

The number of refugees who can be resettled each year is limited to a ceiling set annually by the President in consultation with Congress. The Biden Administration has announced a 125,000 ceiling for FY 2023.

In FY 21, refugees from five countries comprised three-quarters of all refugee arrivals: the Democratic Republic of Congo (43%), Syria (11%), Afghanistan (8%), Ukraine (7%), and Burma (7%). The top-sending countries in FY 20 were similar, but with different proportions: Democratic Republic of Congo (24%), Burma (18%), Ukraine (16%), Afghanistan (5%), and Syria (4%).

In recent years, the United States has also implemented its own targeted refugee efforts, like the Central American Minors (CAM) Program and building in-country processing centers, to allow individuals seeking relief in the United States to apply from abroad, before making the journey to the U.S. border.

THE ASYLUM PROCESS

As determined by both international agreements and U.S. law, an asylum seeker is either physically present in the U.S. or seeks refuge at a U.S. land border port of entry.

Individuals can request asylum affirmatively while lawfully present in the U.S., or defensively, “as a defense against removal from the U.S.” (i.e., in immigration court during removal proceedings, or upon entering the U.S. without documentation).

Migrant Protections Protocols (“Remain in Mexico”)

In January 2019, DHS implemented the Migrant Protections Protocols (MPP), also known as the “Remain in Mexico” policy, forcing certain individuals seeking asylum to wait for court dates in Mexico. An individual who presents themselves to CBP agents at a port of entry is given a date in U.S. immigration court, specifically MPP court, and turned over to Mexican authorities. The first hearing determines whether an individual or family expresses fear awaiting their asylum process in Mexico, otherwise known as a non-refoulement interview. This adds a layer of burden of proof for families and individuals before having the chance to conduct a credible fear interview in any affirmative asylum case.

This has left some 60,000 people waiting for initial hearings and determinations of their asylum cases. Additionally, many immigration courts remain partially closed by the COVID-19 pandemic, postponing thousands of cases into 2021. In February 2021, the Biden Administration announced that it would begin processing individuals in the MPP program for asylum.

OTHER CATEGORIES

Parole

DHS has discretionary authority to “parole” individuals into the U.S. for “urgent humanitarian purposes” (e.g., medical reasons) or “significant public benefit” (e.g., to testify in court). The “parole” is limited in duration, and can be broadly or narrowly granted case by case, depending on the administration and issuing director of the relevant agency. Parolees are eligible for work authorization.

Deferred Action

Solely as an administrative remedy, DHS can apply deferred action, exercising its discretion not to prosecute/deport individuals who are unlawfully in the U.S. The DACA policy is a type of deferred action. Factors used to grant deferred action include: likelihood for removal; sympathetic factors (such as age, hardship, time in the country, and family ties); adverse publicity for the agency if the person were to be removed because of those sympathetic factors; etc. While deferred action is limited in duration, recipients of deferred action can typically receive authorization to work in the U.S. and adjust to a lawful immigration status, providing there’s a lawful basis from which to adjust and the person was lawfully admitted.

DACA was administratively created in 2012 to provide temporary relief from removal and work authorization to eligible undocumented immigrants brought to the U.S. as children. About 800,000 people availed themselves of the policy prior to its rescission by President Trump.

Preventing unauthorized immigration into the U.S. has been a primary objective for many policy makers over the past four decades. To help achieve this goal, lawmakers have authorized and appropriated increases in security spending, resulting in U.S. borders that are more heavily staffed and supported by deployed infrastructure and technology than ever, and is one factor in the downward trend of undetected cross-border migration

FEDERAL ENFORCEMENT OF IMMIGRATION LAW

Immigration into the U.S. is managed at the border by two primary offices that make up U.S. Customs and Border Protection (CBP) within DHS: the Office of Border Patrol (BP) between the ports of entry and the Office of Field Operations (OFO) at the ports of entry. In total, CBP oversees the almost 6,000 miles of northern and southern land and water boundaries of the continental U.S., including 328 ports of entry.

Enforcement of the nation’s immigration, trade, and customs laws are carried out by U.S. Immigration and Customs Enforcement (ICE). Violations of immigration law can carry both civil and criminal penalties, and prevent the individual’s ability to immigrate to the U.S. in the future.

BORDER SECURITY

CBP screens and admits individuals into the United States, apprehends unauthorized entrants, and processes claims from individuals seeking asylum. Even if somebody is granted a visa from abroad, CBP serves as the gatekeeper to the U.S. CBP oversees the Border Patrol, which monitors the northern and southern borders for unauthorized entry and illegal activity, facilitates the lawful movement of people and goods, and provides humanitarian support for people in need.

A visa provides permission to travel to the U.S.; CBP verifies that the visa holder is eligible to enter the U.S., conducts another set of background checks, and scrutinizes any possible inadmissibilities.

In FY 2020, CBP reported 400,651 “encounters” along the southwest border, including 203,608 apprehensions of unauthorized entrants but not including “inadmissibles” (individuals who present at a port of entry but are determined to be ineligible to enter the U.S.).

The combination of technology, existing infrastructure, natural barriers, and the more than 16,500 Border Patrol Agents at the southwest border means that it is extremely difficult to enter the country undetected; according to DHS, the estimated number of undetected unlawful entries fell 95% from FY 2006 to FY 2018, and estimates the probability of detection to be greater than 90%.

INTERIOR ENFORCEMENT

Arrests and Prosecution in the Interior of the U.S.

ICE arrests and detains unauthorized immigrants present in the U.S. ICE also works with USCIS and DOL to investigate immigration fraud and ensure that employers are complying with applicable laws. Outside of immigration enforcement, ICE investigates threats to national and public safety like drug trafficking, child exploitation, and cyberattacks through the Homeland Security Investigations unit.

The President has the authority to set enforcement priorities. In the second term of the Obama Administration, enforcement resources were prioritized on serious threats to national and public security, substantially reducing deportations, while the Trump Administration eliminated enforcement prioritization and focused on arresting and removing as many undocumented individuals as possible. On taking office, President Joe Biden announced that enforcement would again be prioritized on national security, border security, and public safety threats.

Ramp-up in Detention

The Trump Administration prioritized increases to interior enforcement and detention with three executive orders in January 2017. One order (13767) directed DHS to “allocate all legally available resources to immediately construct, operate, control, or establish contracts to construct, operate, or control facilities to detain aliens at or near the land border with Mexico,” to use detention wherever legal permissible, and to eliminate use of alternatives to detention. On taking office, President Biden rescinded those orders.

Policy makers have the opportunity to take a commonsense approach to immigration that keeps families safe and together, grows our economy, supports our recovery, and contributes to a robust workforce.

Broad legislative reform to establish a humane and orderly immigration system that benefits all Americans is critical and urgent. This will require compromise and collaboration from all sides. This may take the form of a single bill, or a series of complementary bills; regardless of the legislative vehicle, the reform effort must be broad and deep, touching multiple aspects of the immigration system. Below, we identify three key areas of reform, based on the pillars of previous legislative proposals, that immigration reform efforts should prioritize.

POLICY PRIORITIES FOR IMMIGRATION REFORM

An Immigration System to Meet Our Needs

Improving immigration avenues and increasing immigration is essential to meet the United States’ economic and demographic needs. As our population ages, immigration is critical to increase the U.S. working age population. The size, age, and skills mix of our population—all of which are greatly impacted by immigration—will help determine the U.S.’ ability to grow an economy that creates jobs and stays competitive. Congress must prioritize legislation that improves and expands immigration avenues.

The U.S. will need to welcome the best and brightest from around the world to strengthen our global competitiveness while continuing to encourage family reunification; that means creating green card pathways for international graduates educated in the U.S. and skilled STEM professionals from around the globe. Future reforms must also address longstanding structural issues, like green card backlogs and country-specific caps, that keep immigrants waiting decades for the certainty of a green card and put their families at risk of separation in the meantime. And employment-based immigration programs, including nonimmigrant visa programs like H-1B, H-2A, and H-2B, must be expanded and modernized to respond to economic need.

Reform must also ensure that immigrants are able to continue contributing to businesses in essential industries, which have long relied on the contributions of immigrants, are able to thrive, and prepare to meet challenges like those we have faced through the COVID-19 pandemic. This should include an essential worker visa that rewards their service with expedited immigration options.