Introduction

Case Study: Immigration and the Statue of Liberty

The people of France gave “The Statue of Liberty Enlightening the World” to the United States as a gift of friendship on October 28, 1886.  It was given as a universal symbol of freedom and democracy. The robed female figure representing the Roman goddess Libertas bears a torch and a tabula ansata (a tablet evoking the law) upon which is inscribed the date of the American Declaration of Independence: July 4, 1776. A broken chain lies at her feet.

Emma Lazarus’s poem, “The New Colossus,” was engraved on a bronze plaque and affixed to the base of the Statue:

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

As an icon of freedom and of the United States, the statue was a welcoming sight to immigrants arriving from abroad. Between 1886 and 1924, almost 14 million immigrants entered the United States through New York. Those opposed to large numbers of immigrants also turned to the Statue of Liberty as a symbolic figure. In 1890, in response to a proposal for a new immigration processing station, the Statue of Liberty was utilized on magazine covers to depict fears about immigrants’ threat to the liberty it represented (National Park Service)

 Immigration policy in the United States has been complicated, and viewed from many angles.  In this brief, we will look at a brief history of Immigration Policy, understand the numbers over the years, and explore areas of future reform in the current immigration debate.

 

Why It Matters

Economics

Immigrants play an important role in today’s economy, and are projected to account for a substantial proportion of the U.S.’s labor force growth through 2030 (Urban Institute). This is particularly the case in entrepreneurship: the percentage of immigrant entrepreneurs has been steadily growing since 2000, from 11.7 percent of entrepreneurs to 20 percent in 2018, while native-born entrepreneurs have decreased over these years. Ensuring skilled immigrants have the ability to pursue their ventures in the U.S. Just as important is ensuring immigrants have access to the education and training needed to advance their careers and build the skills necessary for them to meet the needs of the U.S. labor force (Urban Institute).

Society

Foreign-born residents present social and political challenges and opportunities for local governments. Particularly in urban areas where there are large populations of immigrants, policymakers and citizens play a role in community planning and ensuring “cities can become both more inclusive and more just for all, not more unequal and divided” due to demographic changes (MIT).

Additionally, immigration is important to the census because it drives population projections that help report the impact of immigration on the future size and age composition of the U.S. population. The Center for Immigration Studies takes an in depth look at projecting how immigration can impact the U.S. population.

Immigration in Numbers

The United States welcomes more immigrants in total numbers (as opposed to a percentage of population) than any other country.  Annually, the U.S issues over 1 million green cards – half go to new arrivals, and half are renewals for expired green cards. On average only 13-16% skills-based; the majority are based on familial connections (Migration Policy).

In addition to green cards, in 2018 the U.S. issued over 533,000 family and skill-based temporary immigration visas, which granted these visa-holders temporary privileges  to live and/or work in the United States. Some are on a path to a more permanent status while others are simply working to fill seasonal needs and after the season are expected to return to their home countries.

The U.S. also serves as the top refugee resettlement country according to the United Nations Refugee Agency programme (UNHCR). The Obama administration increased the allotment cap of 70,000 refugees per year to 85,000 in 2016 and 110,000 by 2017. The Trump administration reduced  that number to 45,000 for 2018 and 30,000 for 2019. (US News slideshow, CIS).

 

 

In 2017 CIS reported that 44.5 million immigrants (lawful and illegal) lived in the United States, amounting to 13.7% of U.S. population. Including immigrants’ U.S.-born children brings that number to 84.3 million people, or 27 percent of the overall U.S. population (Migration Policy). In other words – as outlined by the National Academies of Sciences, Engineering, and Medicine report – more than 40 million people living in the United States were born in other countries, and almost an equal number have at least one foreign-born parent. 

In 2016, 1.49 million foreign-born individuals moved to the United States, a 7% increase from the 1.38 million that came in 2015. India was the leading country of origin in 2016, with 175,100 arriving in 2016, followed by 160,200 from China/Hong Kong, 150,400 from Mexico, 54,700 from Cuba, and 46,600 from the Philippines (Migration Policy).

 

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Putting it in Context

History

Immigration to the U.S. was low during the first half of the 19th century but slowly increased during the mid- and late-19th century, primarily due to famines in Europe and the U.S. victory in the Mexican-American War. The influx of migrants saw a rise in anti-immigrant sentiment, first with the Know Nothing Party in the mid-1850s. Tensions surrounding immigration were prevalent especially in California, where American workers openly attacked Chinese immigrants with racist remarks and where legislators passed the Anti-Coolie Act in 1962 to protect white laborers against the low wages for which Chinese laborers were willing to work.

To manage increasing numbers of immigrants,  the Immigration Act of 1882 levied a tax of 50 cents on all immigrants landing at U.S. ports and restricted who was allowed to enter the U.S. In order to enter, the federal government needed to determine whether or not the immigrant was capable of supporting her/himself and would not become a burden on society.

Immigration legislation during the 1920s was also restrictive. The Emergency Quota Act of 1921 and the National Origins Act of 1924 placed caps on national immigration that favored Western Europeans and barred Asian immigrants altogether. Additionally, the Great Depression in the 1930s and the succession of two World Wars contributed to a sharp drop in new arrivals: most countries “were unwilling to increase their immigrant quotas to admit very large groups of refugees, especially the impoverished and the dispossessed” due to a mistrust of foreigners during this time (United States Holocaust Memorial Museum).

Today, U.S. immigration policies are rooted in the Immigration and Nationality Act of 1965, supported by Senator Ted Kennedy. This act established a system based on reuniting immigrant families and attracting skilled labor to the United States. Additionally, President Reagan signed the  Immigration Reform and Control Act (IRCA) in 1986. The IRCA called for tougher border enforcement, penalized employers who hired unauthorized immigrants, and provided a path to citizenship for unauthorized immigrants. This legislation, however, did little to stem the tide of illegal immigration “because the strict sanctions on employers were stripped out of the bill for passage” (NPR). 

See this timeline of the History of Immigration in the U.S.

The current administration is working with Congress on an immigration policy shift focused more on skills-based immigration. Additionally, much of the attention regarding immigration revolves around the southern border. In the last year, the number of migrants coming to the United States’ southern border has soared, and migrants are beginning to overwhelm U.S. authorities. In May of 2019, 132,000 immigrants were caught entering the country illegally; 84,000 were traveling as part of family units (NBC). In recent decades, the majority of people crossing the border have been young men looking for work. Since the beginning of 2019, however, migrants have been entire families seeking asylum, claiming they have a “credible fear” of persecution if they return to their home country. Whether or not they have a legitimate claim must be decided by asylum officers from U.S. Citizenship and Immigration Services, which creates another waitlist, further contributes to backlog, making it more difficult to process eligible claims and allowing those who do not have valid claims to remain in the system longer. Justice Department data reveal over 100,000 asylum cases were filed between October 2018 and March 2019, and there is a backlog of over 900,000 pending cases in immigration courts (WSJ).

This BBC video takes a closer look at the numbers of the dilemma

 

Role of Government

Article I, Section 8, clause 4 of the Constitution entrusts the federal legislative branch with the power to “establish a uniform Rule of Naturalization.”

Specifically, Congress is responsible for crafting the laws that determine how and when noncitizens can become naturalized citizens of the United States. But control over naturalization does not necessarily require full control over immigration. For the first century after the nation’s birth, many states enacted laws regulating and controlling immigration across their own borders. It was not until the late 19th century that Congress began to actively regulate immigration on a national level, with measures designed to restrict Chinese immigration (American Bar).

Today, U.S. immigration policy, set by Congress, is executed through a component of the U.S. Department of Homeland Security (DHS) called U.S. Citizenship and Immigration Services (USCIS). The agency seeks to “secure America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.”

Yet, states still exert influence over immigration policy through their power to issue or withhold state issued identification (driver’s licenses), state-level benefits and state-level cooperation (or lack thereof) with federal officials.

One of the more unique approaches in the current immigration reform debate is the proposal for pilot programs to allow states to experiment with individual immigration policies that respond to their state needs.

 

State and Local Level

The federal government is primarily responsible for enforcing immigration laws, but it may delegate some duties to local and state law enforcement. Not all states treat illegal immigrants the same: Undocumented immigrants are allowed to apply for driver’s’ licenses in California but not in Pennsylvania; Arizona permits police to question people about their immigration status, but Montana does not. Several states and municipalities that limit their cooperation with federal immigration policy have been labelled “sanctuary cities .” Lack of coherence across state and even county lines is a topic of contentious debate (CFR).

Many states have enacted laws designed to help integrate immigrants into society. Efforts include legislation to support civic education classes to help immigrants pass the naturalization test, to fund immigrant integration programs that teach English, and to reduce licensing barriers that would permit educated immigrants to practice their professional skills (NCSL). For example Iowa’s 2017 Education Funding and Operations law includes programs to provide English language and integration assistance to immigrants and refugees.

 

Current Challenges and Areas of Reform

Various Viewpoints

Opinions on immigration policy vary widely and do not split evenly down the aisle.

Open Door/Open Borders Policy

This point of view favors allowing free movement across borders, similar to how European Union citizens can travel between E.U. countries. Some support this approach for benevolent reasons based in the belief that America is a land of opportunity that should be open to all, while others support such a policy for economic reasons based on the belief that the U.S. economy faces a population problem. An economist reasoned in this Time article that, “without new people entering the workforce and new inventions coming onto the market, there would be less investment in new goods, employees and services. Without investment, fewer businesses would open or expand, growth would slow, and more workers would be unable to find jobs.”

Increased Restrictions on Immigration

Others believe that our immigration policies should be more restrictive because levels of immigration have ballooned over the years and because of the belief that immigrants do not assimilate into an American lifestyle and therefore detract from American culture. One of the most prevalent concerns here, especially when the economy is not doing well, is that immigrants steal jobs from American born workers. We have seen, in our currently slow economic recovery, that many of the new jobs are in the part-time service sector, which is often where lower skilled immigrants find employment. Also, part of the economic argument is that many immigrants are supporting family members back home, so much of their profits are invested outside of this country.

Benefits or Deportation for Illegal Immigrants

Some argue that we do not do enough for individuals trying to make it in America and that we should provide Medicaid, food stamps and welfare programs to illegal immigrants. Others say that these individuals who immigrated illegally should be deported because they broke the law. Some argue that children of illegal immigrants should be awarded a legal status because the illegal action taken by their parents was out of their control. Others argue that such an exception rewards and continues the cycle of illegal immigration.

Policies In-between

Many Americans support policies in-between the ones outlined above, favoring generous but still restricted levels of immigration. For example, some support increasing the level of high-skilled immigrants but imposing tighter restrictions on low-skilled immigrants. A popular reform on both sides of the aisle is the mandatory nation-wide implementation of E-Verify – a system that allows businesses to verify a potential employee’s immigration status before hiring the individual. However, some in the business community and the agriculture community, in particular, say worker visa reforms must come ahead of an E-Verify requirement. The agriculture community faces hardship due to the slow visa processing times – often times immigrant agricultural workers do not receive their authorization until after the growing season has passed.

These various viewpoints inform current opinions and challenges in the immigration debate. A large part of President Trump’s 2016 campaign platform focused on immigration and overhauling the nation’s legal immigration system. In May, 2019, the Trump administration outlined a new immigration plan that focused on border security and prioritizing skills- and merit-based migration over family-reunification or humanitarian migration. 

Of the few comprehensive reforms that have been introduced in recent years, Congress has failed to reach consensus or compromise and pass immigration legislation.

Efforts have mainly focused on:

  • Securing borders (particularly the southern border with Mexico), 
  • Curbing and reforming illegal immigration, and 
  • Creating a merit-based immigration system. 

 

Securing the Border

Operational Control 

Creating operational control of the U.S. land border with Mexico consists of deployed agents, fences, and technology such as sensors, cameras and unmanned devices in areas where humans cannot provide timely coverage. The strategy for achieving operational control consists of a combination of enforcement tactics depending on the terrain.

  • Remote: In the middle of the desert, sensors can be attached to unmanned aerial vehicles (UAVs), satellites, or on SUVs carrying border patrol agents.
  • Urban: In a city environment, double-layered fence, security cameras, and a dense deployment of agents is essential to create operational control of the border.
  • Rural: In some places fences with sensors make sense. Helicopters and UAVs provide information to agents that can drive out to conduct the interdiction.

One of President Trump’s campaign promises was to “build a wall” at the country’s southern border to curb illegal immigration. Congressional funding became a point of contention and prompted a 35-day partial government shutdown in January of 2019. President Trump declared a national emergency in February to supply his border wall with funding, and vetoed the Congressional resolution to overturn the measure. Congress failed to override the veto (NPR).

President Trump has enacted policies to deter migrants from coming across the border. On April 6, 2018, then-Attorney General Jeff Sessions announced the Trump administration’s Zero-Tolerance Policy that would call for “the prosecution of all individuals who illegally enter the United States.” Reports of migrants being detained and separated from their children sparked public outrage. Before the Trump administration, families “were detained together, sent back immediately or paroled into the country,” while under the new policy, parents were arrested and their children were placed with sponsors by the Department of Health and Human Services. The backlash prompted President Trump to sign an executive order on June 20, 2018 that put an end to the family separation (Politifact).

In May of 2018, Customs and Border Protection began coordinating with Mexican officials to alert them when ports of entry reach processing capacity, leaving thousands on waitlists in Mexican border cities. Many have crossed without authorization because of the long delays, and officials say the strain on staffing and resources is unprecedented. For a visual representation, see this Wall Street Journal graphic. In July 2019, the Trump administration announced a new asylum policy that would require migrants who pass through another country before they reach the U.S. to seek asylum in that country in order to be eligible for U.S. asylum. Kevin McAleenan, acting Homeland Security Secretary, says “the new rule is intended to ease the strain on the U.S. asylum system,” and thus far civil-rights and immigration groups have filed lawsuits, saying the policy undermines the entire asylum system. 

The current administration program in place is the Migrant Protection Protocols program, also referred to as “Remain in Mexico.” It is a joint effort with Mexico, and is “one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis.” Under the policy, families could live and work in Mexico while their asylum cases are adjudicated in the U.S. (WSJ). NPR and this NY Times podcast offer closer looks at Mexico’s enforcement and the Migrant Protection Protocol. 

 

The Customs and Border Protection is experiencing a “system-wide emergency” in its processing and holding facilities, and immigration courts have record-breaking backlogs in cases. Currently, immigration judges do not have summary judgment authority that allows them “to refuse to schedule cases that lack legal merit,” meaning “meritless cases clog the dockets.” Streamlined procedures that allow asylum officers to decide cases or give judges summary judgment authority would save resources and time: “Cases that are granted would reduce the numbers being added to court caseloads and those eligible for protection would get it in a timely manner, while those who are ineligible would be returned to their home country” (Migration Policy). This, as well as legislation to make legal immigration faster and easier for those seeking opportunity and a better life, would also close loopholes that encourage “the use of asylum claims as the preferred method to enter the U.S.” (Heritage).

The Entry-Exit System

An entry-exit system is our nation’s way of monitoring who is coming into and leaving the country. The 9/11 Commission recommended a biometric entry/exit system. Such a system has been approved and funded by Congress on at least six other occasions, but has yet to be implemented nationwide. Currently the U.S. utilizes a biometric system to track who is entering the country at all points of entry, but exit capability is not deployed at the land border with Mexico. This is a large gap, since about 45 percent of all entry inspections—land, air, or sea—occur at the southwest land border.

Why has the implementation been delayed? The proposed immigration entry-exit system would be based on digitized physical markers, like fingerprint images, photographs, or iris scans and is estimated to be a $7 billion dollar investment. Additionally, implementation is hindered at the southwest land border due to space limitations as well as the potential for unintended economic impacts on the U.S. trade relations with Mexico (Bipartisan Policy Center).

The argument for installing a biometric exit system is that visa-overstays account for a large percentage (possibly 40%) of illegal immigrants in our nation today. Biometric entry-exit systems can provide precise statistics and a better tracking system for people who have overstayed their visas.

 

Curbing and Reforming Illegal Immigration

Visa Overstay Penalties

Recent U.S. presidents have not enforced the laws associated with visa overstay penalties. There are three penalty levels for overstaying a U.S. visa. Accruing unlawful presence can end with being banned from the U.S. for a period of time 3 years, 10 years, or permanently. Offenders could file special permission to re-enter/maintain residency in the U.S. President Trump has recently expanded policies that will do more to enforce penalties for overstaying a visa (USCIS). According to 2018 data, foreigners from Canada and Mexico have the largest overstay rates. See more from the Department of Homeland Security’s Entry and Exit Overstay Report.

DACA/DAPA Dreamers

The USCIS.gov provides this overview of DACA:

In June, 2012, the Secretary of Homeland Security announced that individuals who came to the United States as children and also meet a series of qualification prerequisites may request “consideration of deferred action for a period of two years, subject to renewal.” Deferred action does not provide lawful status, but “is a use of prosecutorial discretion to defer removal action against an individual for a certain period of time.”

In November of 2014, President Obama took executive action to also shelter from deportation the parents of DACA eligible children – Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) – and expanded the eligibility requirements for DACA. DAPA has received scrutiny for its constitutionality and experienced  several setbacks in court review. As a result, the policy that has not been implemented. These policy measures outlined in DAPA were rescinded by the current administration in September, 2017, but the action was blocked by three district court judges and the 9th Circuit Court of Appeals.

In March, 2019, House Democrats announced the Dream and Promise Act that would put Dreamers and immigrants “who have been protected due to war or natural disaster in their home countries” on the path to citizenship.

See age, date and education requirements in the following video on DACA.

 

Read more about DACA, DAPA and the court battle here.

Sanctuary Cities

In 2012, there were a few dozen sanctuary communities; today there are approximately 550 (The New Yorker).

Police departments have said they fear that a policy of arresting people due to their immigration status would discourage victims or witnesses of crimes from cooperating with investigations. Similarly, some cities say they worry that it would lead to racial profiling. Some academics say the most basic argument against the federal government’s ability to force states to comply with federal immigration laws is nested in the Tenth Amendment, which reads: “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

However, as President Obama wrote in a statement in response to Arizona’s attempt to make stricter illegal immigration enforcement law, “a patchwork of state laws is not a solution to our broken immigration system — it’s part of the problem.” In a 2018 statement to the U.S. House Judiciary Committee Subcommittee on Immigration and Border Security, Jessica M. Vaughan of the Center for Immigration Studies noted that sanctuary policies that prevent local law enforcement agencies from working with federal immigration agencies can “lead to the release of criminal aliens back to the streets.” This makes it harder to fight crime, especially in terms of the opioid epidemic by “enabling some of the criminals who are distributing the opioids to remain in the communities, where, like American citizen criminals, they often re-offend.”

Crime

One point in the debate on Sanctuary Cities, and immigration in general, is whether or not increased illegal immigration correlates to increased crime. A 2018 meta-analysis (a study of studies) investigating the immigration-crime relationship found that “overall, the immigration-crime association is negative – but very weak,” and that individual study design characteristics often affected findings.

 

Reprioritizing Legal Immigration Goals

Merit-based vs. Family/”Chain” Migration

A common suggestion is to adjust our current system to allow more immigrants using “merit” criteria while limiting family to spouses and minor children, which would end the continuous stream of siblings, parents and adult children from immigrating based on familial relations.

Wage Impact 

In terms of economics for merit-based immigration, many have called on Congress to update wage protections to ensure that U.S. workers compete on a level playing field. In 2013, when negotiating the Gang of Eight bill, the U.S. Chamber and the Department of Labor expressed disagreements over wages for new workers and which industries would be included. The focus was heavily on temporary worker programs – low-skilled workers who would be brought in to fill jobs in construction, hotels, resorts, nursing homes and restaurants and other industries.

However, not every situation can be accounted for through regulation. During the latest economic recovery, the vast majority of the jobs created were part-time jobs and some analysis has shown that foreign born workers were taking these jobs at a higher rate than native-born workers. The Bureau of Labor Statistics reported that in 2018, “foreign-born workers were more likely than native-born workers to be employed in service occupations” such as construction, maintenance, production, and transportation-related occupations, and “less likely to be employed in management, professional, and related occupations.” The difference in occupations often affects differences in wages.

According to the National Academies of Sciences, Engineering, and Medicine report, “over a dozen studies indicat(e) that immigration does reduce wages primarily for the least-educated and poorest Americans. It must be pointed out, however, that there remains some debate among economists about immigration’s wage impact.”

Read here about shortfalls in these requirements.

 

Ways to Get Involved/What Can You Do

As immigration debates heat up, especially as a key point for the 2020 presidential race, it will be important for both public and private stakeholders to better understand current immigration laws, express their opinions, and discuss options for the future.

Congressional Committees and Federal Agencies

Questions to ask your local, state, national representatives:

  • What is your perspective on immigration in [our town/state]?
  • What laws/initiatives are currently in place?

Thought Leaders and Resources 

 

Key Terms

Migrate: To move to a new place

Emigrate: To leave one’s country to live in another

Immigrate: To come into another country to live

ICE: Immigration and Customs Enforcement, the agency that is known for detaining and deporting undocumented immigrants. In the past year, a call to “abolish ICE” has gained traction due to immigration policies such as the one that led to family separations.

Asylum: Protection given to noncitizens

Asylum seeker: An individual seeking international protection, whose claim has not yet been finally decided on by the country in which he or she submitted it (Amnesty International). Asylum seekers apply at a port of entry when they seek admission or within one year of arriving in the U.S. (affirmative asylum) or if they are caught in the US illegally (defensive asylum) (The Skimm).

Refugee: When an asylum seeker’s application for asylum is approved, he or she becomes a refugee (The Skimm). This means they have officially been deemed someone who has fled their country of origin and is unable or unwilling to return because of a well-founded fear of  being persecuted (Amnesty International). Refugees apply for admission generally from a “transition country” that is outside their home country. They are eligible to become lawful permanent residents one year after admission to the U.S. as a refugee (AIC).

Green card: Also known as a Permanent Resident Card, green cards allow people to live and work permanently in the US. Green card holders are referred to as “lawful permanent residents” (LPR). A Green card holder can apply for U.S. citizenship after living in the U.S. for five years (DHS).

Visa: A travel document placed in a passport that allows a traveler to travel to a port of entry (such as an airport or land border crossing) and request permission to enter the country. A visa does not guarantee entry, but indicates that an embassy or consulate has determined the traveler is eligible to seek entry. You can learn more about the different types of US visas here.

Wage Requirements: These are put in place to make sure employers do not take advantage of immigrants. For example, visa programs (like the H1-B or H2-B employment visas) require employers to prove they are not paying a foreign worker less than an American worker (Department of Labor).

Birthright Citizenship/“Anchor babies”: The 14th Amendment grants citizenship to “all persons born or naturalized in the United States,” although there is debate as to whether this applies to any individual born on U.S. soil. Some lawmakers have pursued legislative efforts to define the 14th Amendment as applying only to babies born to a parent in the military, a lawful permanent resident, or a U.S. citizen.

Sanctuary Cities: There is no specific legal definition for what constitutes a sanctuary jurisdiction;  however, such cities often do not allow municipal funds or resources to be used to enforce federal immigration laws, usually by not allowing police or municipal employees to inquire about an individual’s immigration status. Local law enforcement officials are not required to alert U.S. authorities about the immigration status of individuals with whom they come in contact.  

E-Verify: An Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). It provides a link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. Some states have passed legislation making its use mandatory for certain businesses. E-Verify is currently free to employers and available in all 50 states.

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