U.S. immigration policy has been a touchstone for political debate for decades, as policymakers weigh the need to maintain global competitiveness by attracting top foreign talent against the need to curb illegal immigration and secure U.S. borders. Most recently, the debate has focused on how to streamline a heavily bureaucratic visa application process and address the millions of undocumented immigrants already in the United States—particularly young people brought here by their parents—as well as implementing policy at the local level without jeopardizing public trust within immigrant communities.
Federal legislation on comprehensive reform has stalled in recent years, and President Barack Obama leaned toward enforcement-based policies for curbing illegal immigration during his first term. Meanwhile, restrictive state-level immigration laws—including Arizona's controversial SB 1070—have highlighted the blurry divide between state and federal authority over immigration policy. However, following Obama's reelection in 2012, his administration and Congressional lawmakers have signaled a new willingness to make a bipartisan effort to tackle comprehensive immigration reform.
Status of the Current Immigration Debate
Public discourse is divided over the issue of illegal immigration. Opponents argue that undocumented immigrants are an economic drain; others say they are an economic boon. Some contend that undocumented workers take jobs that would otherwise be held by American workers, while others argue they do work that Americans are unwilling to undertake. Meanwhile, many experts say that legal immigration must be made more efficient to deter illegal immigration and attract skilled foreign workers, and that the debate over illegal immigration enforcement has blocked progress on broader reform.
Migration flows between Mexico and the United States have been at net zero since 2007, primarily due to declining U.S. economic opportunity.
Many Americans think the U.S. immigration system is urgently in need of reform. A January 2013 Gallup poll found that only 36 percent of Americans are satisfied with the current level of immigration into the United States.
Debates center primarily on immigrants entering from Mexico, even though studies by the Pew Hispanic Center show that migration flows between Mexico and the United States have been at net zero since 2007, primarily due to declining U.S. economic opportunity. This new trend "does fundamentally change the nature of U.S.-bound immigration, likely permanently," writes CFR's Shannon O'Neil, noting that the shift "has yet to feed into U.S. political debates."
An Enforcement-Based Approach to Illegal Immigration
The federal government has employed an enforcement-heavy approach to immigration control under the Obama administration. More than twenty thousand U.S. Border Patrol agents operate along the borders—the highest number deployed in U.S. history and twice the level of a decade ago. The Obama administration has also conducted a series of nationwide immigration sweeps to arrest undocumented criminal offenders and increased audits of companies hiring unauthorized workers. Obama administration policies have also resulted in record-high deportation levels, with nearly four hundred thousand undocumented immigrants deported in 2011, compared to 281,000 deportations just five years prior.
The administration has also expanded the Secure Communities program, started in 2008, which allows local law enforcement to share fingerprints of arrestees with the federal Immigration and Customs Enforcement (ICE) agency to examine their status and criminal history for possible deportation. Secure Communities has provoked harsh criticism in some states, where critics say it has led to deportations for minor offenses rather than being applied only to "the most dangerous and violent offenders" [PDF] as intended, eroding trust between immigrant communities and law enforcement. This criticism, as well as a heavily backlogged immigration court system, has led ICE to refine its deportation priorities and procedures to target high-level offenders.
The federal government's policies are criticized by immigration advocates and hardliners alike. Many conservatives argue that the administration is not doing enough to curb illegal immigration, and that allowing thousands of lower-level offenders to remain in the country amounts to "backdoor amnesty." To further deter illegal immigration, some politicians have supported the idea of an expanded fence along the U.S.-Mexico border.
In contrast, immigrant rights advocates argue that an enforcement-heavy approach instills a culture of fear in immigrant communities, and that such policies are out of touch with the reality of migration trends. Many analysts support comprehensive immigration reform that emphasizes streamlining legal pathways to citizenship in addition to enforcement policies.
CFR's Edward Alden says the White House's enforcement-based approach to illegal immigration represents a "catch-22 situation." Overall deportation numbers will eventually drop as a result of expelling those who fall under high-priority categories, he says. Thus, the administration will become vulnerable to accusations of being "soft on enforcement."
Reforming Legal Immigration
Reforming the cumbersome visa and citizenship process for immigrants—particularly skilled foreign workers in high-demand STEM (science, technology, engineering, and math) fields—is a priority to ensure that the country retains its competitiveness in the global economy, say some experts and politicians, who are concerned about the prospect of a "reverse brain drain."
The U.S. visa system has long been hobbled by prolonged waiting periods, at times lasting years, resulting in part from rigid quotas. Currently, the United States issues 140,000 green cards a year for employment-based immigrants, of which no more than 7 percent can go to applicants from any one country. Applicants from India and China tend to greatly outnumber those from other countries, and therefore face lengthy waits. "These workers can't start companies, justify buying houses, or grow deep roots in their communities" during these waiting periods, writes Vivek Wadhwa, vice president of academics and innovation at Singularity University. "They could be required to leave the United States immediately—without notice—if their employer lays them off. Rather than live in constant fear and stagnate in their careers, many are returning home."
Within Congress, several proposals have been made to improve this process, including the bipartisan Startup Act 2.0, which would introduce a "startup visa" for foreign entrepreneurs who demonstrate intent to create businesses and jobs in the United States, as well as eliminate individual country visa quotas and offer a new type of visa to foreign students graduating from U.S. universities in STEM fields.
Guest worker programs for unskilled workers—particularly in the agricultural sector—have also been the subject of heated debate. Critics of the existing H-2A program, which grants temporary visas for seasonal agricultural work, say it is too costly and inflexible for farmers and has not sufficiently curbed illegal immigration. The Agricultural Job Opportunities, Benefits, and Security (AgJOBS) Act, a bill that would modify the H-2A program and allow undocumented agricultural workers to apply for green cards under certain conditions, was introduced in 2003 but has floundered in Congress.
Over the past decade, the Development, Relief, and Education for Alien Minors Act—known as the DREAM Act—has also become a significant part of the national immigration debate. The DREAM Act would provide a pathway to citizenship for undocumented youth who immigrated as children with their families to the United States. First introduced in 2001, the bill has repeatedly stalled in Congress; in late 2010, it passed the House, but failed to garner enough votes to overcome a Senate filibuster. Proponents say the act is a crucial measure for protecting undocumented youth, who did not choose to immigrate to the United States, while critics contend that it would encourage others to immigrate illegally with hopes of eventually obtaining permanent residence for their children.
In June 2012, President Obama announced that the federal government would no longer deport undocumented youths who immigrated to the United States before the age of sixteen and are younger than thirty, have been in the country for five continuous years, and have no criminal history. Under the policy, these immigrants would be eligible for two-year work permits that have no limits on how many times they can be renewed.
In 2013, a bipartisan group of senators released a comprehensive immigration reform plan that would allow those who immigrated illegally as children to apply for permanent residence in five years, regardless of their current age.
Several measures have been passed to handle many immigration matters at the state level, creating an uneven patchwork of standards across the country. The use of E-Verify, an electronic system used by businesses to verify employees' immigration status, varies widely across the country, as the federal government has not passed a mandate for all states to participate. More than a dozen states have mandated its use by state agencies and employers, while California has prohibited local municipalities from enforcing its use. In other states, use of E-Verify remains optional. State laws have also been passed to ease conditions for undocumented youth through granting access to in-state college tuition as well as public and private sources of financial aid.
Some states have attempted to pass restrictive laws aimed at curbing illegal immigration. In April 2010, Arizona passed SB 1070 [PDF], a controversial law that imposes criminal punishments on undocumented immigrants and those who harbor, employ, or transport them. One provision of SB 1070 authorizes local law enforcement to stop and ask for proof of citizenship if there is "reasonable suspicion" that someone may be undocumented, an aspect of the law that pro-immigration and civil rights advocates argue has led to racial profiling. Despite harsh criticism over Arizona's law, however, several other states—including Alabama, Georgia, South Carolina, Tennessee, and Florida—have approved or considered similar legislation.
In July 2010, the federal government challenged the constitutionality of SB 1070 and the case was brought before the U.S. Supreme Court. In June 2012, the court struck down three of the four major parts of the law, including provisions that made it a state crime for undocumented immigrants to seek or perform work or fail to carry registration papers, and a provision that allowed law enforcement to arrest them without a warrant if there was "probable cause" that they committed a public offense. However, the court upheld the controversial "papers, please" provision allowing law enforcement to ask for proof of citizenship, ruling that Arizona did not overstep its jurisdiction by enacting this portion of the law.
The immigration jurisdiction question has become a thorny issue not just in the wake of laws like SB 1070, but also as a result of policies like the Secure Communities program. Secure Communities began as a voluntary opt-in process, but when several states, unhappy with the program, attempted to opt out, their requests were denied. ICE has since stated that participation is mandatory and that the program will expand to all fifty states [PDF] by 2013, eliciting protest from some local governments. To date, however, the program has not faced any legal challenges.
Outlook for Comprehensive Reform
Comprehensive immigration reform, which would improve enforcement policies and legal immigration procedures and offer legal status to many of the roughly eleven million undocumented immigrants living in the United States, has in the past received some bipartisan support. But in recent years, political polarization has dimmed chances for such legislation. "This issue is caught up in the political paralysis of Washington," says Angela Maria Kelley of the Center for American Progress, and it is an issue that "used to be bipartisan and now finds itself at the bottom of the heap because members can't break out of their partisan shell."
However, after Obama was elected to a second presidential term in 2012, the White House and congressional lawmakers made comprehensive immigration reform a high priority. In early 2013, the so-called "Gang of Eight," a group of four Democratic and four Republican senators, unveiled new immigration legislation based on months of closed-door negotiations and built on four pillars: enhancing border security, providing a pathway to citizenship for undocumented immigrants already in the country, deterring employers from hiring undocumented workers, and reforming legal immigration pathways.
The bill roughly doubles the number of H1-B visas allocated to high-skilled workers and establishes programs for guest workers and seasonal agricultural workers. Undocumented immigrants who fit a specific set of criteria would be eligible to apply for a temporary "nonimmigrant visa" only after the borders are secured to a specific level—after which they would have to wait a minimum of ten years without federal benefits before applying for permanent residence. Young undocumented immigrants brought to the United States as children would be eligible to apply for permanent residence and citizenship after five years. If the bill passes, it will be the biggest overhaul of the U.S. immigration system in more than two decades.
The Kauffman Foundation's series of reports on immigration and the U.S. economy focuses on the linkages between education, entrepreneurship, and global migration flows and U.S. competitiveness.
A September 2011 Department of Homeland Security task force report on Secure Communities [PDF] concludes that ICE must improve its use of prosecutorial discretion to regain public trust.
The Immigration Policy Center's guide to Arizona v. United States [PDF] provides legal background to the Supreme Court case over Arizona's SB 1070 and an analysis of the ruling's potential aftermath.
This Center for American Progress report details the impact of restrictive immigration policies on the lives of undocumented immigrants.
CFR's Task Force Report on U.S. immigration policy offers a strategy for maintaining U.S. political and economic leadership by attracting skilled immigrants, a program of legalization for those living in the United States illegally, and steps for securing the country's borders in an effective and humane way.