Introduction

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 current 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.

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Overall, federal legislation on comprehensive reform has stalled, and the Obama administration has 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 President Obama's reelection in 2012, the administration and Congressional lawmakers have signaled willingness to make a bipartisan effort to tackle comprehensive immigration reform head-on during his second term.

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, but that the debate over illegal immigration enforcement has blocked progress on broader reform.

Many Americans think the U.S. immigration system is urgently in need of reform. A January 2012 Gallup poll found nearly two-thirds of Americans are dissatisfied with the current level of immigration into the United States, with 42 percent of respondents saying it should be decreased. Debates center primarily on immigrants entering from Mexico--although 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."

Meanwhile, the U.S. Latino population has ballooned over the past few decades, now constituting the nation's largest and fastest-growing minority group. In May 2012, the U.S. Census reported that more than half of all U.S. births were ethnic minorities--a milestone and testament to rapidly changing U.S. demographics that indicates the broad impact that federal immigration policy will have on a large sector of society.

An Enforcement-Based Approach to Illegal Immigration

The federal government employs an enforcement-heavy approach to immigration control. More than 20,000 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. President Obama's policies have also resulted in record-high deportation levels, with nearly 400,000 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 Immigration Customs and Enforcement (ICE) agency to examine their status and criminal history for possible deportation. Secure Communities has provoked harsh criticism in some states (USNWR), 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.

Because of mounting criticism over Secure Communities, as well as a heavily backlogged immigration court system, ICE has taken steps to refine its deportation priorities and procedures. In June 2011, ICE director John Morton issued a memo (PDF) detailing a various factors--including health conditions, age, and community ties--that should be considered when deciding to move forward with deportation. Later that summer, Homeland Security Secretary Janet Napolitano issued a review of 300,000 pending immigration court cases (CNN) to focus on those meeting heightened enforcement priorities. However, these moves have not silenced all of the program's critics. A May 2012 New York Times editorial argued that the ongoing problem of deteriorating trust of law enforcement in immigrant communities is one that "is not going to be fixed by tweaking the detention policy."

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-priority undocumented immigrants to remain in the country amounts to "backdoor amnesty." To further deter illegal immigration, several politicians have supported the idea of an expanded fence along the U.S.-Mexico border. Others, including Republican presidential candidate Mitt Romney, call for more restrictive policies that would induce undocumented immigrants to "self-deport" (NYTimes).

In contrast, immigrant rights advocates argue that an enforcement-heavy approach instills a culture of fear in immigrant communities, and that they 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 notes that the White House's enforcement-based approach to illegal immigration represents a"Catch-22 situation" because targeting deportations at those who fall under high priority categories will cause overall deportation numbers to eventually drop, making the administration vulnerable to accusations of being "soft on enforcement." However, Alden does predict that deportation numbers will drop during the 2012 fiscal year because of the government's refined deportation categories, and the administration will have to deal politically with this drop in numbers.

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 Statesas well as eliminate individual country visa quotas and offer a new type of visa to foreign students graduating in STEM fields in U.S. universities.

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 modifies the H-2A program and allows 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 through 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 residencefor their children. In April 2012, Republican Senator Marco Rubio proposed a version of the act that would grant a temporary, renewable "non-immigrant" visa to undocumented youth who fit DREAM Act criteria, rather than a green card.

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 new policy, these immigrants would be eligible for two-year work permits that have no limits on how many times they can be renewed.

Federal-State Tensions

Amid stalled federal comprehensive legislation and complaints that the federal government has not satisfactorily stemmed the tide of illegal immigration, 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 employers 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.

Several states have attempted to pass restrictive laws targeted 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 its wake.

In July 2010, the federal government challenged the constitutionality of SB 1070 and the case was brought before the Supreme Court. In June 2012, the court struck down three of the four major parts of the law (USAToday), including provisions that made it a state crime for undocumented immigrants to seek or perform work or fail to carry registration papers, and one 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, saying that Arizona did not overstep its state jurisdiction to enact this portion of the law.

The ruling is expected to have a significant impact on similar state-level immigration laws. The major issue in the case was the boundary between state and federal jurisdiction on immigration matters; the federal government chose not to argue against SB 1070 as a civil rights infringement. The Justice Department has argued that immigration policy is a matter under federal jurisdiction, and that SB 1070 oversteps federal authority on the matter.

The immigration jurisdiction question has become a thorny issue not just in the wake of laws like SB 1070, but also in tensions over 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 combine improvements to enforcement policies and legal immigration procedures and would 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 comprehensive reform. "This issue is caught up in the political paralysis of Washington," said Angela Maria Kelley of the Center for American Progress, "and it's Exhibit A of the victims of 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 President Obama was reelected for a second presidential term in 2012, government officials and lawmakers have made several indications that they are ready to make a bipartisan push for broad, comprehensive immigration reform. In 2012, Republican Senator Marco Rubio put forward an immigration proposal (NYT) that includes an employment verification program, a nationwide exit system to provide a check on overstayed visas, and a means to offer legal status—via a temporary "nonimmigrant visa" that could later lead to residency—to undocumented immigrants already in the United States. Meanwhile, Senate Majority Leader Harry Reid said in January 2013 that immigration reform would be a top priority (TheHill) for the 113^th Congress, and President Obama addressed the matter in his 2013 inaugural speech, saying, "Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity--until bright young students and engineers are enlisted in our workforce rather than expelled from our country."

Further Reading

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 that impact U.S. competitiveness.

A September 2011 task force report on Secure Communities (PDF) outlines the impact of the controversial program, concluding 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.