Regulation of Immigration

Immigration regulation shapes the lives of Hispanics in the U.S and those contemplating emigration to this country. It is also a matter of substantial importance to U.S. citizens whose disparate interests have been the basis for political discord at all levels of American government. Despite the many years that Congress has devoted to regulating the admission of foreigners to America, and despite the historical fact that immigration has been of significant social, economic, and cultural benefit to this country, elected representatives of both political parties recognize that the current U.S. immigration system does not function properly. Competing economic, security, and humanitarian concerns make it difficult to legislate a comprehensive plan that is satisfactory to the many different segments of American society with longstanding interests in immigration. Consequently, Congress has failed to manage the immigration process in a way that is considered fair by the vast number of people who support immigration and is also perceived as effective in protecting the well-being of American citizens.

Disagreement about a variety of issues act as the rocks upon which proposed legislation to overhaul the nation’s immigration system is shipwrecked: the implementation of security measures at the border; the treatment of migrants seeking asylum as refugees from their home country; the effect on the labor market of large numbers of new individuals seeking employment; and, the advisability of the “catch and release” practice of freeing migrants arrested at the border into the community while they await hearings. A particularly controversial problem involves agreeing on the legal status of the millions of unauthorized immigrants who live and work in the U.S. and, in many cases, have raised families here. A related issue is the fate of immigrants who entered the U.S. illegally as children while accompanying their parents.

A significant number of Americans object to immigration per se. Ostensibly claiming to represent the interests of American workers, organizations such as the Immigration Reform Law Institute and the Federation for American Immigration Reform, argue that unauthorized immigrants, who they often refer to as “illegal aliens,” should be denied citizenship because they crossed America’s borders in violation of U.S. immigration law. Indeed, rather than granting citizenship to them (so-called ‘amnesty’ in the view of their opponents), these immigrants should be deported and compelled to apply for citizenship legally. By contrast, a variety of public and private organizations representing a wide spectrum of partisan thought, have promoted immigration reform. These include the Cato Institute, a libertarian public policy research organization, and the George W. Bush Institute, a nonpartisan public policy organization. Both institutions have published research that counters the primary arguments of organizations opposed to immigration.

Misinformation about immigration is partly responsible for the difficulties encountered by those trying to fashion an acceptable comprehensive law. For example, while opponents of immigration complain that undocumented migrants living in the U.S. usually arrive here by illegally entering the country, actually half or more of unauthorized immigrants are “overstayers.”  

The government agency responsible for the management of immigration is the United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security.  Its varied duties include handling and processing all immigration and naturalization forms (e.g., immigrant visa petitions, naturalization petitions, and asylum and refugee applications).  Further, USCIS administers immigration services and benefits, adjudicates asylum claims, issues Employment Authorization Documents, and grants both lawful permanent resident status as well as U.S. citizenship.  Unlike most other federal agencies, USCIS is primarily a fee-based agency.  Fees paid by applicants for immigration forms and services fund more than 90 percent of USCIS operating costs.  For example, the application fee for DACA status (see below), including employment authorization and biometric services, is $495.  Applicants can determine precise fees for processing each official form from a printed fee schedule or a fee calculator.

The Department of Homeland Security has two other component agencies concerned with immigration. The U.S. Customs and Border Protection (CBP), the largest federal law enforcement agency of the Department, was established to secure the nation’s borders.  While facilitating lawful international travel and trade, CBP is responsible for keeping terrorists and their weapons out of the U.S.  The U.S. Immigration and Customs Enforcement (ICE) was created to promote homeland security and public safety by means of immigration enforcement and combating transnational crime.  ICE enforces and investigates all U.S. federal criminal and civil laws concerning cross-border crime and illegal immigration.

Immigration Legislation

Immigration has been a subject of intense political debate for many years in the U.S.  Beginning in 1790, Congress passed a series of laws defining the years of residence required to become a naturalized citizen of the U.S.  However, historians generally agree that the first federal comprehensive immigration law passed by the Congress was the Immigration Act of 1882.  The law imposed a $.50 tax on new arrivals and banned “convicts (except those convicted of political offenses), lunatics, idiots and persons likely to become public charges” from entering this country.

The current immigration framework in the U.S. was created primarily in the 1950s and 1960s. It was in 1996 that Congress was last able to pass meaningful immigration legislative reforms.  “Since then, immigration has become a partisan wedge issue within Congress and the country, with fights chiefly concentrated on the fate of the estimated 11 million unauthorized immigrants in the United States, one of the largest such populations in the world, and enforcement measures at the U.S.-Mexico border.”  U.S. immigration policy has alternated between support for more permissive and for more restrictive systems.  These changes have resulted in both “great waves” of immigrants and “great lulls” with comparatively less immigration. 

Mexican Farm Labor Agreement

Due to periodic economic concerns about labor shortages in the U.S., narrowly focused directives or laws have been adopted to regulate the flow of Mexicans seeking employment. For example, on August 4, 1942, the Mexican Farm Labor Agreement created the Bracero program, the largest guest-worker program in U.S. history.  Created as a wartime emergency measure to avoid the interruption of agricultural production and to minimize food price inflation, the program lasted until 1964.  Unfortunately, working conditions were generally substandard.  Living arrangements provided for the workers, including food and housing, were often inadequate.  Wages were poor and often not paid in a timely fashion.  For example, many braceros fought for years after the program ended to recover money deducted from their salaries and supposedly deposited into savings accounts in their names.  Labor unrest, including strikes by farm workers, were common due to these conditions.

Immigration Act of 1990

Congress created the Temporary Protected Status (TPS) program in the Immigration Act of 1990.  This program provides a conditional work permit and stay of deportation to immigrants from around the world.  TPS recipients declare that they cannot return to their country of origin due to ongoing armed conflict, natural disaster, or other extraordinary reasons.  Collectively, nearly 537,000 individuals, from 16 designated countries, had TPS as of November 2022. Even those who have lived and worked legally in the U.S. for many years as a TPS recipient have no certain route to permanent residence (i.e., a green card).  In 2023, the Biden administration extended the TPS of approximately 330,000 immigrants from El Salvador, Honduras, Nicaragua and Nepal, thereby renewing their work permits for 18 months and granting them permission to live and work in the U.S. into 2025.  This action reversed a Trump-era directive that sought to revoke the humanitarian protections. Greater detail about TPS is available from the U.S. Citizenship and Immigration Services.  The American Immigration Council maintains a website that presents a summary of the provisions contained in TPS. 

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)

The IIRIRA signed by President Bill Clinton strengthened immigration laws by subjecting undocumented immigrants to criminal penalties, including deportation, if they commit a misdemeanor or a felony while in the U.S.  The Act also toughened border control by imposing criminal penalties for racketeering, alien smuggling, and the use or creation of fraudulent immigration-related documents.  Agencies responsible for monitoring visa applications and visa abusers were strengthened in order to improve interior enforcement of immigration law.  Lastly, the IIRIRA complicated the method of processing asylum seekers and has proven to be detrimental to the U.S. asylum system.

Development, Relief, and Education for Alien Minors (DREAM Act)

An immigration issue of special concern is the treatment of those undocumented people brought unlawfully to the U.S. as children.  The DREAM Act was a federal bill introduced in Congress in 2001 that would have provided a path to permanent residency for qualified young immigrants.  The term “DREAMer” was derived from the name of the bill.  Dreamers, most of whom were born in Mexico, live and attend school in the U.S.  They contemplate a better future in America, largely as a result of their access to education.  The main provision of the Act allows undocumented students access to in-state tuition (based on state law) and some forms of federal financial assistance, such as student loans and work study.  In 2007, Congress finally began consideration of the Dream Act.  As of 2021, at least 11 versions of the original bill have been introduced in Congress, none of which has become law (see below). 

The Political Climate

Beginning in 2013, Congress repeatedly attempted to pass comprehensive immigration reform, all of which died on the vine.  These bills were as follows: Border Security, Economic Opportunity, and Immigration Modernization Act (2013); American Dream and Promise Act of 2021; and U.S. Citizenship Act of 2021.  Like Sisyphus, in each of these cases one or more sincere legislators prepared a bill that proposed solutions for the chaos at the border only to have their colleagues refuse formal consideration of their effort or vote the bill down.

Emergency National Security Supplemental Appropriations Act, 2024

The Emergency National Security Supplemental Appropriations Act, 2024, a bipartisan bill authored by Senators James Lankford (R, Oklahoma), Chris Murphy (D, Connecticut), and Krustin Sinema (Ind., Arizona), suffered the same fate as its predecessors. The $118 billion package contains a complex set of hardline border security and immigration overhaul proposals intended to reduce record numbers of crossings at the southern border and to strengthen an overburdened asylum system. The legislation obligates the Department of Homeland Security to close the border if crossings exceed 8,500 in a single day, and authorizes closure should its officers encounter an average of 4,000 or more migrants over seven days. Initial screening of claims of a “credible fear of persecution” in asylum adjudications was stiffened. Under the proposed legislation applicants would be required to demonstrate the higher “reasonable possibility” standard to win asylum as opposed to the existing standard of a “significant possibility” of prevailing. Funds are proposed to hire additional patrol agents to guard the border, staff to process the applications, and judges to adjudicate asylum cases. The issue of citizenship for Dreamers is not addressed.

The legislation also provides appropriations to the Department of Defense for overseas humanitarian, disaster, and civic aid, and includes critical funding for Ukraine, Israel, and Taiwan. Republican support in both the House and Senate was undermined by statements of former president Donald Trump demanding that they kill the bill.  As a result, all Republican senators with four exceptions voted against the legislation, and the House majority leader declared that the bill was “dead on arrival.”

Presidential Executive Action

Because both comprehensive and narrowly-focused immigration laws have failed to win Congressional approval, immigration has largely been regulated by means of presidential executive orders, the essence of which is greatly influenced by the political party of the commander in chief. The President of the U.S. manages the operations of the Executive branch of government through executive orders.  Executive orders have the force of law and permit the President to manage the country without having to secure the approval of Congress. For example, President Trump issued, and later rescinded, his “Zero Tolerance” policy that separated thousands of immigrant children from their parents at the Mexican border.  Presidential executive orders remain in force until they are found to be unlawful in a court, expire on their terms, or more generally revoked by a future President.

Deferred Enforced Departure (DED) 

Like TPS, DED is a temporary immigration benefit.  For immigrants facing termination of TPS from certain countries or regions, DED can provide an administrative delay of deportation for a specific time period and supply a work permit.  Rather than being based on a specific immigration law, DED derives from the President’s foreign policy authority and the office’s power to issue an executive order or Presidential memorandum.  DED decisions about a foreign country, or eligibility requirements for DED, are matters of judgment by the President in conjunction with relevant requirements established by the Department of Homeland Security.  Since DED status was first granted in 1990, individuals from  China, the Persian Gulf, El Salvador, Haiti, Liberia, and Venezuela have received administrative stay of removal, and Hong Kong in 2023.

Deferred Action for Childhood Arrivals (DACA)

When it became clear that Republicans would continue to block votes on legislation to revise immigration policy, the Obama administration decided that executive action wherever possible was necessary to bring about immigration reform. Consequently, on June 15, 2012, President Obama announced the establishment of the DACA program.  DACA recipients are protected from deportation proceedings for two years. DACA has given temporary administrative relief from deportation to more than 800,00 qualified young immigrants who arrived in the U.S. as minors. According to the White House in 2022, approximately 825,000 noncitizens had been granted DACA status since 2012, of whom approximately 76,000 became lawful permanent residents (green card holders) and approximately 4,000 became naturalized U.S. citizens. There were 579,000 active DACA recipients as of March of 2023, a number that is anticipated to decline given recent court orders keeping DACA closed to new entrants, More than nine-in-ten DACA recipients were born in Latin America, and roughly 81 percent were born in Mexico.  California is home to 28 percent of DACA recipients; Texas 16 percent; Illinois 5 percent; and, New York and Florida 4 percent apiece.  The Los Angeles-Long Beach-Anaheim metropolitan area has the largest number of active enrollees followed by New York-Newark-Jersey City.

The eligibility requirements to obtain DACA status include:

• came to the United States under the age of 16
• continuously resided in the United States from June 15, 2007, to the time of filing of the request
• been physically present in the United States on both June 15, 2012, and at the time of filing of the DACA request
• not been in a lawful immigration status on June 15, 2012, as well as at the time of request
• graduated or obtained a certificate of completion from high school, obtained a GED certificate, currently be enrolled in school, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States
• not been convicted of a felony, a misdemeanor described in the rule, or three or more other misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct, or otherwise pose a threat to national security or public safety
• been born on or after June 16, 1981, and be at least 15 years of age at the time of filing, unless the requestor is in removal proceedings, or has a final order of removal or a voluntary departure order.

Applicants must submit documentation that substantiates claims that they have met the requirements.  For example, to verify that the applicant was present in the U.S. on June 15, 2012, the following are acceptable evidence:

• Rent receipts or utility bills
• Employment records (pay stubs, W-2 Forms, etc.)
• School records (letters, report cards, etc.)
• Military records (Form DD-214 or NGB Form 22)
• Official records from a religious entity confirming participation in a religious ceremony

The educational requirements to qualify for DACA status are important in terms of helping recipients to qualify for employment and to deepen their social ties in the U.S..  Importantly, all undocumented children have the clear legal right (Plyler v. Doe) to attend a K-12 public school.  Further, no federal law requires proof of citizenship for admission to U.S. colleges. Recent estimates show there are more than 408, 000 undocumented students enrolled in postsecondary education, representing about 1.9 percent of all postsecondary students. Most, however, do not have DACA.  Paying for a college education is a likely problem for these students.  Because undocumented students are ineligible for federal financial aid, the availability of in-state tuition is a critical factor when it comes to affording education.  State regulations vary in the extent to which they support attendance by undocumented students. In-state tuition is available to undocumented students in 24 states and D.C.  Of those states, 18 and D.C. also offer opportunity to receive state financial aid.   Finally, finding work to help pay tuition may be another difficulty faced by DACA students.  

Typically, DACA recipients receive work authorization for two years. These permits must be renewed every two years to remain in the country without fearing deportation and to work legally.  According to the findings of a survey conducted by the Center for American Progress (CAP), more than 83 percent of DACA respondents were employed.  Significant numbers of DACA recipients are employed in professional occupations.  The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 prohibits certain immigrants from earning professional or occupational licenses unless their state passes specific legislation allowing access. For example, professional licenses may be obtained in some states such as Florida and Illinois that expressly allow DACA recipients to acquire law licenses.  CAP found that 13.7 percent of DACA respondents obtained professional licenses, a figure that increases to 15.9 percent among respondents 25 years and older.  Finally, employment of DACA recipients is facilitated by the fact that those who obtain an employment authorization document and a Social Security number may obtain a driver’s license in every state.

Challenges to DACA

Instability in the regulation of DACA eligibility and entitlement rights represents the greatest challenge. Since 2001, Congress has deliberated relief for Dreamers without ever accomplishing it. The road ahead for DACA is muddled by litigation in different courts, stopgap agency rulemaking, and persistent partisan bickering that prevents the passage of comprehensive legislation that satisfactorily resolves the nexus of currently intractable immigration issues. Governance of the lives of Dreamers, consequently, has been subject to changing policy predilections of sitting presidential administrations and varying judicial verdicts.

DACA – National Immigration Law Center (nilc.org)

As part of his 2016 election campaign, President Trump pledged to end DACA immediately and make deportation of the estimated 11 million undocumented persons in the U.S. a top priority. His administration consistently sought to deprive immigrant populations of legal status and to decrease legal immigration through a variety of administrative measures. During the first year of his presidency, Trump announced a “wind-down” of the program that involved ending DACA and refusal to extend TPS and DED status for certain countries. Because the DACA program was created by an Obama executive policy decision, President Trump had the power to simply reverse the policy.

On June 18, 2020, the Supreme Court issued a ruling in the Department of Homeland Security v. Regents of the University of California case that opposed President Trump’s attempt to end the DACA program. According to the Court, the decision to end the program was “arbitrary and capricious.” Nevertheless, the Trump administration responded to the ruling with statements that created uncertainty among DACA recipients about the status of the program. 

On January 20, 2021, President Biden issued an executive order reinstating DACA. The order requires the secretary of the Department of Homeland Security (DHS), in consultation with the attorney general, to take all appropriate steps to “preserve and fortify” DACA consistent with applicable law.  To this end, final rules issued by the DHS certified that DACA recipients are considered “lawfully present” for certain purposes.  However, implementation of DACA that was scheduled for October 31, 2022, currently is limited by challenges to its legality.  Beginning with a lawsuit decided on July 16, 2021 and partially affirmed on October 5, 2022 by the U.S. Court of Appeals for the 5^th Circuit, an injunction remains in effect that prohibits DHS from granting initial DACA requests and related employment authorization under the final rule. Hence, no new DACA applications will be approved.  However, because that injunction has been partially stayed, DHS presently may grant DACA renewal requests under the final rule.

On September 13, 2023, the U.S. District Court for the Southern District of Texas ruled that DACA was unlawful. This ruling resembles the decision of the Appeals Court for the Fifth Circuit. As litigation regarding DACA continues, individuals who have DACA (as of July 16, 2021), or whose DACA has lapsed for less than one year, can continue to work legally in the U.S., be protected from deportation, and renew their status, at least temporarily. However, first-time DACA applications continue to be blocked and cannot be processed.