Immigration Policy 101


INTRODUCTION

Immigration has always been a powerful political topic, increasingly so in recent years. Despite its salience as an issue, decades have passed since Congress last passed significant immigration reforms. The majority of Americans agree that immigration and immigrants are good for America, but that the complex and outdated system needs to be reformed.

This presentation aims to provide policymakers and their teams a brief, high-level overview of the U.S. immigration system for the purpose of crafting immigration reform legislation. “Immigration Policy 101” includes legislative and administrative history, a look at the components of the current system, metrics to portray the impacts of the current system, and opportunities for reform.

The presentation is in six sections: You can use the navigation bar at the top of the page to jump to a specific section.

Today, 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 find humanitarian relief. Yet over the past few years, many mechanisms of the immigration process have been severely limited through administrative action, leading to significant drops in annual immigration levels and drastic changes in enforcement. And for the past three decades, Congressional deadlock has consistently prevented passage of any significant legislation to fix obvious problems.

Here is how we got here.

A BRIEF HISTORY OF IMMIGRATION LEGISLATION

Since the founding of the United States, the promise of immigration and naturalization have been fundamental. Over centuries, America’s immigration system has been built through a complicated weaving of congressional, executive, and judicial actions. At times, immigration laws and policies have been restrictive and discriminatory, and at other times they have been more inclusive and welcoming.

In 1952, Congress overrode a Presidential veto to pass the Immigration and Nationality Act (INA), an immigration bill that, along with substantial amendments passed in 1965, established the framework for the immigration system we have today.

In the decades that followed, Congress amended this framework and targeted specific programs and issues through legislation like the Immigration Reform and Control Act of 1986, which allowed undocumented immigrants to legalize their status; the Immigration Act of 1990, which established the modern employment-based immigration system; and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which imposed new restrictions and penalties for violations of immigration laws, targeted primarily at undocumented immigrants and employers who hire them.

BRIEF HISTORY OF AMERICAN IMMIGRATION POLICY
BRIEF HISTORY OF AMERICAN IMMIGRATION POLICY
  1. The Immigration and Nationality Act of 1965

    The Immigration and Nationality Act of 1965 repealed the racial quota laws and created the modern legal immigration system.

  2. Immigration Reform and Control Act of 1986

    Immigration Reform and Control Act paired a pathway to citizenship for millions with employer sanctions for hiring unauthorized workers

  3. Immigration Act of 1990

    The Immigration Act of 1990 established employment-based immigration, the Diversity Visa, and Temporary Protected Status (TPS).

  4. Illegal Immigration Reform and Immigrant Responsibility Act of 1996

    Illegal Immigration Reform and Immigrant Responsibility Act substantially expanded deportable offensess and established 3-and 10-year bars that prevent millions from adjusting status.

  5. Post-9/11 Legislation

    Post-9/11 legislation (e.g. the Homeland Security Act of 2002) brought immigration benefits and enforcement under control of newly created DHS and dramatically expanded border security and interior enforcement.

Recent Legislative Efforts for Comprehensive Immigration Reform

At the turn of the 21st century, leaders in Congress began to pursue broad, comprehensive immigration reform legislation.

In 2005, Senators Ted Kennedy (D-MA) and John McCain (R-AZ) introduced the Secure America and Orderly Immigration Act, which created the framework for future comprehensive immigration reform legislation, including the Comprehensive Immigration Reform Act of 2006, a comprehensive bill that dealt with border security, legal immigration programs, and legalization for undocumented immigrants. President George W. Bush expressed his support for the effort, which passed the Senate 62-36. The bill was not taken up in the House. A similar effort failed in 2007.

Congress failed to take up the issue again for many years. President Barack Obama, President Bush’s successor, waited until his second term to engage Congress on comprehensive immigration reform legislation.

In 2013, a bipartisan group of Senators known as the “Gang of Eight” and led by Senators McCain and Dick Durbin (D-IL), introduced the Border Security, Economic Opportunity, and Immigration Modernization Act, an expansive bill to overhaul the legal immigration system, invest heavily in border security, and allow undocumented immigrants to legalize their status. The bill passed the Senate in 2013 on a 68-32 vote, but the House of Representatives refused to vote on the bill, and it too died at the end of the Congress.

In 2021, Senator Bob Menendenz (D-NJ) and Representative Linda Sanchez (D-CA) introduced the U.S. Citizenship Act (S. 348, H.R. 1177), broad immigration reform legislation that includes components of earlier CIR proposals (including legalization for undocumented immigrants, increasing investment and infrastructure in Central America, and addressing employment verification). President Biden has endorsed this legislation.

Components of CIR

Previous legislative efforts to broadly reform the immigration systems sought to address concerns that generally fall within three categories:

  • Provide legalization for the undocumented population living in the country
  • Expand and modernize immigration avenues and certain guest worker programs so people can immigrate more easily in the future
  • Minimize future unauthorized immigration through investments in border security and revisions to immigration enforcement

The DREAM Act

In 2001, Senators Durbin and Orrin G. Hatch (R-UT) introduced the Development, Relief, and Education for Alien Minors (DREAM) Act, a bill that would establish a pathway to citizenship for undocumented immigrants (Dreamers) who came to the United States at a young age and had grown up, gone to school, and were hoping to work and/or serve in the military in the U.S. That bill did not receive a vote until 2010; an updated version of the bill passed the House, but narrowly failed in the Senate. In addition, the Dream Act was included in the aforementioned 2013 CIR legislation that was approved in the Senate. In the years that followed, many more pieces of legislation for Dreamers were introduced, but none were voted on until 2018, when three reform proposals to address Dreamers failed to obtain the necessary votes in the Senate. In 2019, the House again passed legislation for Dreamers but the Senate did not act. In 2021, the House passed the bill again. Twenty years after the DREAM Act’s initial introduction, a majority of Americans support citizenship for Dreamers.

EXECUTIVE ACTION IN THE ABSENCE OF CONGRESSIONAL ACTION

After Congress failed to take up and pass meaningful immigration reform over the last few decades, Presidents have increasingly used executive action to change the immigration system.

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 that would have provided deportation protection and work authorization to parents of U.S. citizens and green card holders (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 1,000 immigration policy changes. These executive actions, agency directives, and rules were primarily 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:

2021 - Present

President Biden also exercised executive action on immigration issues, beginning on his first day in office. The Center for Migration Studies has a complete list. Many of his executive orders were direct responses to the Trump Administration’s policies, rolling back or halting changes implemented or proposed under the previous administration (including proposed changes to public charge policy, naturalization tests, and increased fees).

Some of President Biden’s executive orders on immigration so far include:

Despite the early use of Executive Action to rollback administrative changes from the Trump Administration, President Biden has also emphasized the importance of legislation and Congressional leadership in reforming the immigration system, and has endorsed legislation for a broad immigration reform effort.

From its founding, the United States has been shaped and enriched by immigration, welcoming individuals with diverse backgrounds, experiences, skills, and hopes to participate in and contribute to our nation. Here we look briefly at the immigrants who are living in America today and how they have changed over the past decade.

More than 45 million immigrants
live in the U.S., making up nearly14% of the total U.S. population.

There are 28.4 million immigrants employed in the U.S., about 17% of the total labor force.

18 million U.S. citizen children live with at least one immigrant parent.

Two-thirds of the immigrant population in the U.S. is eligible to naturalize.

DEMOGRAPHICS

Some 45 million immigrants live in the U.S., making up nearly 14% of the U.S. population. This share is consistent with the immigrant share through most of the 19th century, until racial quotas in the early 1900s
led to a drastic drop in the immigrant population. Since the 1960s, the immigrant population has been growing; in fact, immigrants and their children are responsible for more than half of U.S. population growth between 1965 and 2015.

According to FWD.us, nearly half (45%) of immigrants in the U.S. are naturalized citizens, more than a quarter (29%)% are lawful permanent residents (LPR), 5% 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 25% of immigrants are originally from Mexico, but the makeup of new immigrants is tilting more toward Asia.

Demographic Fast Facts

  • 45M immigrants in the U.S., making up nearly 14% of the total population
  • 23% are undocumented; 27% are lawful permanent residents, 5% are on temporary visas, and 45% are naturalized citizens
  • 67% of the immigrant population is eligible to naturalize

ECONOMIC CONTRIBUTIONS OF IMMIGRANTS

FWD.us estimates that some 30 million immigrants were working in the U.S accounting for 18% of the civilian labor force.

In 2018, immigrants
contributed
$458.7 billion
to state, local, and federal
taxes.

In 2019, after paying more than $400 billion in federal, state, and local taxes, immigrants were left with more than $1.2 trillion in spending power, stimulating local business activity by purchasing goods and services, according to FWD.us estimates.

Undocumented immigrants, more specifically, contribute up to $31 billion in federal and payroll taxes and up to $18 billion a year in state and local taxes, according to FWD.us estimates. These billions of tax dollars fund our schools, hospitals, emergency response services, highways, and other essential services.

Immigrants make up roughly one-fifth of the essential workforce supporting Americans and responding to challenges like the COVID-19 crisis, including farmworkers, physicians, and domestic workers. Immigrants are also a critical part of the highly skilled workforce, where their work in Science, Technology, Engineering, and Math (STEM) fields drives innovation and strengthens our global competitiveness.

Immigrants are also highly entrepreneurial, launching new companies at twice the rate of native-born Americans and creating large numbers of jobs.

Some 30 million immigrants are in the U.S. labor force, which accounts for 18% 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 temporary visa holders work in essential industries.

UNDOCUMENTED IMMIGRANTS

As of 2017, an estimated 10.6 million undocumented immigrants lived in the United States.

Earlier this year, FWD.us published Pathways to Citizenship for Undocumented Immigrants, a research report that includes estimates of the undocumented population by category and estimates on the economic and workforce impacts of creating a pathway to citizenship.

According to our analysis, most undocumented immigrants are long-term U.S. residents; more than two-thirds have lived in the country for at least a decade. Many 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. This keeps millions of people stuck in limbo, living in constant risk of deportation and family separation.

The American people agree that undocumented immigrants play a critical role in our communities and our economy; as noted in the report, the majority of Americans support establishing a process for undocumented immigrants to stay in the U.S. with their families and become citizens.

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

Note: Estimates are for the total undocumented immigrant population who belong to selected groups. Undocumented individuals can belong to multiple groups; consequently, overlapping group statuses were taken into account to avoid double-counting. Estimates are rounded to 10,000. See Methodology for more information on how estimates were calculated and qualification characteristics for each undocumented immigrant group.

Source: FWD.us analysis of 2019 American Community Survey augmented data

MIXED-STATUS FAMILIES

Many immigrant families include individuals in different status, such as undocumented, documented, and citizens. It is particularly common for parents of U.S. citizen children to lack documentation—in fact, more than 4.1 million U.S.-born children younger than 18 are living with at least one undocumented parent. The U.S. citizens’ well-being and futures are inextricably connected to their parents’ immigration status.

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.

FEDERAL AGENCIES ADMINISTERING THE IMMIGRATION SYSTEM

The Departments of Homeland Security (DHS), State (DOS), and Justice (DOJ) manage most of the U.S. immigration system. The Bureau of Consular Affairs under DOS issues visas for individuals abroad seeking to come to the United States. DHS, and its subcomponents U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP), adjudicates requests for immigration benefits like work authorization and adjustments of status (e.g., from a temporary program to lawful permanent resident status), as well as naturalization, and enforces immigration laws. DOJ, through the Executive Office for Immigration Review (EOIR), manages the immigration court system and conducts removal proceedings.

Key Legal Authorities

U.S. Citizenship and Immigration Services (USCIS)
U.S. Customs and Border Protection (CBP)
U.S. Immigration and Customs Enforcement (ICE)
Bureau of Consular Affairs
Executive Office of Immigration Review (EOIR)

Additionally, other federal agencies provide support and additional input, such as the Federal Bureau of Investigation, which conducts background checks; the Department of Labor, which certifies employers to hire foreign workers and provides for worker protections; and the Department of Health and Human Services, which manages the Office of Refugee Resettlement and oversees housing of unaccompanied children apprehended at the border.

The ‘immigration road map’ is overwhelmingly complex,
with more than one hundred different visas and programs
for coming to the U.S. on a temporary (nonimmigrant)
and permanent (immigrant) basis.

TEMPORARY IMMIGRATION

Individuals seeking to come temporarily to the United States—for travel, business, to work, to study, or for other reasons—must be admitted on a nonimmigrant visa, meaning they do not intend to immigrate permanently. Some nonimmigrant visas, like the H-1B visa, are considered “dual intent,” meaning an individual can use them even if they intend to apply for an immigrant visa in the future.

There are 87 types of nonimmigrant visas within 24 categories. The names of visas are based on the letter and number of the subsection in the INA authorizing them. These are the most commonly used employment-based temporary visas:

Visa NameDescriptionFY 2019 Approvals / Issuances*
B-1 / B-2Visitors for business (B-1) or pleasure (B-2). Not authorized to be paid by U.S. employer6.4 million issued
E-1Treaty traders and investors, and Australian specialty occupation workers, per a treaty of commerce and navigation with the national’s country of origin.6,668 visas issued
H-1BWorkers in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.



Professional specialty workers (387,000 approved petitions in FY19, about 34% of which were initial filings and about 66% were for continued employment,, up from 179,049 in FY17). Spouses and dependents can be issued H-4 visas.
387,000 approved petitions in FY 19 (about 34% of which were initial filings and about 66% were for continued employment)

188,123 visas issued
H-2AAgricultural guest workers204,801 visas issued
16,996 petitions approved
H-2BNonagricultural guest worker (e.g. construction, seafood, hospitality industries)97,623 visas issued

8,566 petitions approved
L-1Intracompany transferees employed by companies abroad.76,988 visas issued

30,431 petitions approved
O-1Extraordinary workers, such as internationally renowned artists, authors, producers, advertisers, musicians, etc.)17,751 visas issued

27,526 petitions approved

PERMANENT IMMIGRATION (GREEN CARDS)

The Green Card Process

Individuals seeking to immigrate permanently to the United States must be issued an immigrant visa. Once an individual has an immigrant visa, they can also apply to become a lawful permanent resident and receive a green card. Oftentimes, the visa and green card application are done simultaneously. In some circumstances, individuals in nonimmigrant status can apply to adjust to a permanent status from within the U.S.

There are 132 types of immigrant visas (including derivative visas) within 14 categories. To become a lawful permanent resident, an individual must generally be sponsored and approved for a green card (typically sponsors are a family member or employer, though in some cases individuals can self-sponsor, including refugees and asylees). Below is a brief description of the process.

Transitioning from Temporary Visa to Green Card

  1. Some individuals living in the U.S. on nonimmigrant visas wish to become lawful permanent residents and receive a green card. The pathway from a temporary visa to a green card is restrictive, time-consuming and expensive.

  2. Federal law generally prohibits individuals from receiving nonimmigrant visas if they have “immigrant intent,” meaning their ultimate goal is to move to the U.S. permanently, though there are some exceptions. This can create significant barriers for certain classes of individuals that the U.S. should be interested in retaining, like international graduates of U.S. colleges and universities.

  3. Even if they qualify for a green card, excessive backlogs can keep applicants waiting for decades until they are allowed to adjust status to become green card holders. This leaves people stuck on visas, like H-1Bs, while they wait. This lack of a clear pathway to permanent residency has been driving Federal law highly skilled workers, as well as prospective students, to abandon the U.S. for countries like Canada with more streamlined immigration programs.

Green Card Statutory Limits

The number of employment-based, family-based, and diversity green cards available to prospective immigrants is limited to 675,000 a year, a cap set by the Immigration and Nationality Act, although some individuals and visa categories (such as refugees) are exempt from these limits.

The 675,000 available green cards are divided among the three main visa categories, as described in the sections and table below).

Green card issuances are further affected by specific per-country caps on the number of visas that can go to individuals from one country each year, numbers rolling over to different categories, and specific pieces of legislation.

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 above for numbers).

Employment-based Immigration

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

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 table above for full breakdown).

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

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 ranged from 991,000 (2013) to nearly 1.2 million (2016). The increasingly upward trend has wavered in recent years; in 2019, 1,031,765 new LPRS were admitted, a decline of 151,740 from 2016.

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.

LPR CategoryDescriptionAnnual Numeric LimitFY2019 LPR Recipientsa
Employment-Based Immigrants
EB-1Prirority Workers40,04039,471
EB-2Professionals with advanced degrees or aliens of exceptional ability40,04039,506
EB-3Skilled workers, professionals, and needed unskilled workers40,040b
(including up to 10,000 for unskilled "other" workers)
4,1787
EB-4Special immigrants (including religious workers, employees of U.S. government abroad, and juvenile court dependents)9,940 (including up to 5,000 religious workers)9,609
EB-5Investors/employment creation9,9409,085
Family-Based Immigrants
IR-1Spouses of U.S. citizensNo annual limit304,334
IR-2Children of U.S. citizens (includes orphans and adoptees)No annual limit61,303
IR-3Parents of U.S. citizensNo annual limit140,128
F-1Unmarried sons/daughters of U.S. citizens and their children23,40024,497
F-2Spouses, children, and unmarried son/daughters of LPRs114,20093,398
F-3Married sons/daughters of U.S. citizens and their spouses and children23,40025,213
F-4Brothers/sisters of U.S. citizens (age 21 or older) and their spouses and children65,00061,031
DiversityIndividuals from countries that send relatively few immigrants to the United States55,000c43,463
RefugeesAliens admitted to the United States as refugees based on persecution claims who have been phsyically present in the United States for at least one yearNo annual limit80,908
AsyleesAliens granted asylum based on persecution claims who have been physically present in the United States for at least one yearNo annual limit26,003
OtherIncludes parolees, children born abroad to alien residents, certain Iraqis and Afghans employed by the U.S. government, cancellation of removal, victims of human trafficking, and victims of crimeVarious limitsd32,029
Total1,031,765
Source: Congressional Research Service, "Nonimmigrant and Immigrant Visa Categories: Data Brief"

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.

NATURALIZATION AND CITIZENSHIP

Green card holders can generally become U.S. citizens after living in the U.S. if they:

  • Reside in the U.S. continuously for 3+ years if a marriage-based green card holder or 5+ years for other categories
  • Have “good moral character” and are at least 18 years old
  • Speak basic English and know U.S. history and civics
  • Take an oath of allegiance to the U.S.

As of 2019, about 9.1 million of the 13.6 million green card holders in the U.S. were eligible to naturalize.

Immigrants who serve in the military typically qualify for a direct, expedited path to citizenship as do the widowed spouses of U.S. citizen military veterans.

Under the 14th Amendment to the Constitution, children born in the United States are automatically U.S. citizens.

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.

For fiscal years 2018 to 2021, the Trump Administration wielded its executive authority to significantly restrict the size and scope of these programs. Refugee levels and placements are at historic lows, and the asylum system has been all but dismantled, replaced with the zero-tolerance “Family Separation” and “Remain in Mexico” policies, and further limited by travel bans issued since the beginning of the COVID-19 pandemic. Below we look at these processes and how they have evolved in recent years.

THE REFUGEE PROCESS

The number of refugees is limited to a ceiling set annually by the President in consultation with Congress. For the past few decades, it has averaged 63,355 annual admissions. President Obama set it at its high, 110,000 in 2016, and President Trump set it at its low, 15,000, for FY 2021 (it was 18,000 for FY 2020, 30,000 for FY 2019 and 45,000 for FY 2018).

As a candidate, President Biden pledged to raise the FY 2021 target to 125,000. On taking office, his Administration then announced a revised target of 62,500, and requested funding from Congress to resettle up to 125,000 refugees in FY 2022.

Actual refugee admissions have fallen over the last five years, as well. At the end of 2020, refugee admissions were also at historic lows, driven down even further because of the global pandemic. President Biden has expressed skepticism about reaching the revised target of 62,500 admissions, and with good reason—with only two and a half months left in the fiscal year, the U.S. has admitted only 4,780 refugees, 7.65% of its goal. Admissions have trended upwards in recent months, with 1,530 refugees were admitted in June 2021, a 67% increase over the previous month and the highest number for the fiscal year.

In FY 21, refugees from five countries have comprised three-quarters of all refugee arrivals: the Democratic Republic of Congo (39%), Ukraine (14%), Afghanistan (9%), Syria (7%), and Burma (6%). The top-sending countries in FY 20 were the same, but with different proportions: Democratic Republic of Congo (24%), Burma (18%), Ukraine (16%), Afghanistan (5%), and Syria (4%).

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).

75,252 defensive asylum claims with valid credible fear in FY19

Defensive asylum seekers without documentation apprehended at or within 100 miles of the border must express a fear of return to their home country; only if they can establish a “credible fear” can they appear before an immigration judge; otherwise, they are placed in expedited removal and may not appear before an immigration judge. If credible fear is established, an asylum officer refers the case to an immigration judge and the applicant may be paroled into the U.S. or detained, at ICE’s discretion.

An applicant who cannot establish a credible fear can request that the credible fear finding be reviewed by an immigration judge. If successful, the applicant can have the full asylum claim heard by a judge. If not, the applicant will be removed from the country. USCIS can rehear a claim if presented with new, compelling information.

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.

52% of FY16-18 asylees are from China, Venezuela, and the Northern Triangle

New Trends in Asylum Claims

The majority of individuals granted asylum over the past decade (FY 2007 to 2016) have included individuals from China and Egypt, followed by Guatemala, Haiti, Venezuela, Iraq, Ethiopia, Iran, Colombia, and Russia.

However, the countries from which asylum seekers are fleeing have changed, with the majority of defensive applications filed in the past few years coming from asylum seekers from the Northern Triangle countries of Guatemela, Honduras, and El Salvador, where applications have significantly increased and accounted for 61% of defensive applications in FY 2016, followed by Mexico and China.

In FY 2018, China, Venezuela, El Salvador, Guatemala, and Honduras were the top countries of nationality for those receiving asylum, accounting for approximately 53% of asylum grants.

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.

Temporary Protected Status (TPS)

DHS in consultation with DOS can grant individuals in the U.S. from countries undergoing extraordinary conditions (natural disasters, civil unrest, extraordinary circumstances, etc.) TPS, or Temporary Protected Status. Congress may also provide TPS, as it has done in the past. TPS protections are valid for up to 18 months and can be renewed and extended. TPS recipients are eligible for work authorization, but not for a special green card pathway outside of other legal paths.

Source: Congressional Research Service, "Temporary Protected Status and Deferred Enforced Departure"
a. The arrival date represents the date from which individuals are required to have continuously resided in the United States in order to qualify for TPS. Unless a country is re-designated for TPS, the required arrival date does not change.
b. The expiration date represents the end of the most recent designation period and is subject to change based on future decisions of the Secretary of DHS. Expiration dates for recent designations may not yet be announced.
c. Counts of individuals with TPS are the most recent estimates provided by USCIS or DHS. Most counts were provided to the Congressional Research Service. Countries with a pending termination and a new designation may have individuals registered under both designations; the Total count does not count these individuals twice. Data for countries with relatively newer designations may not yet be available and are marked "N/A."
d. While these designations have been formally terminated, a court injunction has prevented terminations from taking effect, and DHS has extended the validity of all TPS-related documents for beneficiaries of TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through December 31, 2022.
e. The number of individuals who currently have TPS under the country's previous designation. Some individuals may also be registered under the new designation; the Total count includes the total number of individuals so row totals may not add up.

Country Most Recent Decision Required Arrival Datea Expiration Dateb Individuals with TPSc
Afghanistan New designation March 15, 2022 November 20, 2023 N/A
Burma New designation March 11, 2021 November 25, 2022 380
Cameroon New designation April 14, 2022 TBA N/A
El Salvador Termination (blocked by court injunction)d February 13, 2001 September 9, 2019 193,940
Haiti (2010) Termination (blocked by court injunction)d January 12, 2011 July 22, 2019 39,650e
Haiti (2021) New designation July 29, 2021 February 3, 2023 3,240
Honduras Termination (blocked by court injunction)d December 30, 1998 January 5, 2020 58,625
Nepal Termination (blocked by court injunction)d June 24, 2015 June 24, 2019 9,355
Nicaragaua Termination (blocked by court injunction)d December 30, 1998 January 5, 2019 3,130
Somalia Extension and redesignation July 19, 2021 March 17, 2023 370
South Sudan Extension and redesignation March 1, 2022 November 3, 2023 75
Sudan (1997) Termination (blocked by court injunction)d January 9, 2013 November 2, 2018 535
Sudan (2022) New designation March 1, 2022 October 19, 2023 N/A
Syria Extension and redesignation March 19, 2021 September 30, 2022 3,910
Ukraine New designation April 11, 2022 October 19, 2023 N/A
Venezuela New designation March 8, 2021 September 9, 2022 40,400
Yemen Extension and redesignation July 5, 2021 March 3, 2023 1,355
Total 354,625

Source: Congressional Research Service, “Temporary Protected Status and Deferred Enforced Departure”

a. The arrival date represents the date from which individuals are required to have continuously resided in the United States in order to qualify for TPS and is indicated in the most recent TPS designation for that country. Unless a country is re-designated for TPS, the required arrival date does not change. A foreign national is not considered to have failed this requirement for a “brief, casual, and innocent” absence. 8 U.S.C. §1254a(c) and 8 C.F.R. §244.1.
b. The expiration date represents the end of the most recent designation period and is subject to change based on future decisions of the Secretary of DHS.
c. These data reflect the number of individuals (rounded to the nearest five by USCIS) with an approved TPS application as of March 11, 2021, who had not obtained LPR status or U.S. citizenship. The data may include individuals who have left the country or died since their last TPS approval, and do not necessarily include all nationals from the specified countries who are in the United States and are eligible for the status.
d. Because the application period just began, data are not yet available. DHS estimates that 323,000 individuals are eligible for TPS for Venezuela, and 1,600 individuals are eligible for TPS for Burma.
e. Due to legal challenges, these termination have not yet taken effect. While the designations have been terminated, DHS has extended the validity of all TPS-related documents for beneficiaries of TPS for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through October 4, 2021.
f. On May 22, 2021 DHS Secretary Mayorkas announced an 18-month designation of TPS for Haiti. Individuals from Haiti who have continuously resided in the U.S. since May 21, 2021 will be eligible to apply. The expiration date will be 18 months following the publication of the announcement in the Federal Register. An estimated 40,000 individuals from Haiti are currently protected under TPS. These individuals will retain their protections through at least October 4, 2021, or longer if required to comply with court orders, though those individuals are also eligible to apply under the new designation as well.

Unaccompanied Alien Children (UAC)

UACs are undocumented children under 18 years old who are not accompanied by a parent—or do not have a parent in the U.S.— who can provide care and physical custody. UACs are provided with certain protections during apprehension, custody, removal proceedings, and possible return to their home countries. They may not be placed in expedited removal, but rather must be granted an opportunity to have full removal proceedings before an immigration judge. The majority of UACs come from Northern Triangle countries.

Victims of Crimes (U, T)

Some temporary protections and immigration benefits are available for immigrants who are victims of crimes.

U nonimmigrant visas are granted to certain victims of crimes who, in exchange for the visa, assist law enforcement to investigate/prosecute crimes. Grantees are often victims of sexual assault, domestic violence, or trafficking. U visa issuances are limited to 10,000 each year. U visa recipients can adjust to a green card, along with their immediate relatives.

T nonimmigrant visas are granted to victims of human trafficking for four years, limited to 5,000 each year. Grantees are eligible to adjust to green cards after three years, providing they meet certain other conditions.

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.

$3.1 billion for expanded detention capacity of 60,000 detention beds, 5,000 of which for family units; and $603.5 million for transportation and removal costs.

Deportation Process

Generally, after DHS charges an individual, they appear before an immigration court judge (a civil judicial proceeding, so no government lawyer is provided) for a determination over the individual’s removability. There are some forms of relief, such as asylum, cancellation of removal, and deferred action, and decisions can be appealed.

Those who entered unlawfully (including those who committed fraud/misrepresentation to enter the U.S.) may be subject to “expedited removal,” a fast-tracked removal process, unless they establish a “credible fear” of being returned to their home country. They generally cannot avail themselves of the right to appeal or other possible relief.

Those who are removed are generally barred from re-entering the U.S. for at least five years. Re-entering the U.S. after removal can result in a bar of 20 years and can be criminally penalized. Some choose “voluntary departure,” which would exempt them from certain penalties.

E-Verify

E-Verify is a web-based system managed by DHS’ USCIS for employers to determine if potential hires are legally authorized to work in the United States. E-Verify checks information provided by employees against records maintained by the Social Security Administration (SSA) and DHS.

The first iteration of E-Verify was created in 1996 as a pilot program under the Illegal Immigration Reform and Immigrant Responsibility Act; the program was then brought online and formalized in the late 2000s.

Participation in E-Verify is voluntary for most employers; however, some employers, including those fulfilling some federal contracts or those hiring students participating in STEM OPT, are required by law to use E-Verify. Additionally, 22 states have mandated E-Verify participation for some subset of employers, with nine requiring participation for all employers. More than 750,000 employers are currently enrolled in E-Verify.

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.

U.S. Future Immigration Highly Impacts U.S.' Future Global Economic Standing

Country GDP, by selected U.S. immigration scenario
U.S. VERY HIGH
CHINA
INDIA
2050 GDP
IN MER
U.S. VERY HIGH
CHINA

$50 TRILLION

INDIA

$28 TRILLION

  1. Very High Immigration
    (2.4 million immigrants annually)
  2. High Immigration
    (1.8 million immigrants annually)
  3. Recent Immigration
    (1.2 million immigrants annually)
  4. Low Immigration
    (0.6 million immigrants annually)
  5. Zero Immigration
    (no immigration)
  1. Very High
  2. High
  3. Recent
  4. Low
  5. Zero
Very High Immigration (2.4 million immigrants annually)
High Immigration (1.8 million immigrants annually)
Recent Immigration (1.2 million immigrants annually)
Low Immigration (0.6 million immigrants annually)
Zero Immigration (no immigration)
Sources: U.S.: George Mason University projections, based on ACS 2018 augmented data. India, China: PwC Global “The World in 2050” report, based on 2016 estimates.
Note: U.S. projections are constant 2018 dollars. India and China projections are based on constant 2016 dollars. GDP in MER is gross domestic product as value of goods and services at market exchange rates. GDP in PPP is gross domestic product at purchasing power parity adjusting for standards of living across countries.
Read the full report at fwd.us/futureimmigration

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.

An estimated 10.6 million undocumented immigrants are living and working in the U.S. today.

Establishing a Pathway to Citizenship for Undocumented Immigrants

An estimated 10.6 million undocumented immigrants are living and working in the U.S. Most have no legal option to adjust their status. Immigration reform must establish a pathway for these individuals to pursue citizenship.

This should include Dreamers, individuals protected by Temporary Protected Status, farmworkers, and the 5 million undocumented immigrants who are essential workers. Considering the number of Americans who live in mixed status families, legalization efforts should prioritize keeping families together.

Further reforms will be needed to revise excessively punitive policies, such as the three- and ten-year inadmissibility bars, which have contributed to the growth of the undocumented population by preventing people already in the U.S. from adjusting their status if they have remained in the U.S. without status for over six months.

Beyond Border Security

The combination of technology, existing infrastructure, natural barriers, and deployment of more than 16,000 Border Patrol agents have made the southern border more secure than ever before. DHS has 91% situational awareness across the border, and unauthorized entries are at historic lows. Since the creation of the Department of Homeland Security (DHS) in 2003, the federal government has spent an estimated $333 billion on the agencies that carry out immigration enforcement, including $26 billion in FY2021 budget for ICE and CBP alone.

Moving forward, Congress must look beyond traditional “border security” to address factors that drive people to seek entry at the border in the first place. Expanding legal immigration avenues will provide reliable options for those seeking to come to the U.S., in turn removing incentives for unlawful entry and reducing the number of people seeking entry at the southern border. This includes addressing the root causes of migration by providing much-needed international aid (monetary and otherwise) to improve economic and security conditions in Central America, and re-establishing robust refugee and asylum programs that can help people before they arrive at a U.S. port of entry. Within the U.S., DHS should maintain enforcement priorities so that limited law enforcement resources are targeted on serious national security threats.