Troops to the Border
The Department of Defense (DOD) announced (May 2) that it will add 1,500 active-duty troops to support southern border operations, on top of the existing 2,500 National Guardsmen supporting border operations in the region.
The troops will be there for up to 90 days to help manage border management and processing with the end of COVID-19 immigration restrictions on May 11, the official end of the Public Health Emergency. DOD says that it is evaluating options of replacing the troops with Reservists and contract support, presumably if there is a continuing need for help.
Reporting, not confirmed by the DOD announcement, has indicated that the troops will help address specific needs that include detection and monitoring, data entry, and warehouse support.
New Migration Management Actions
The Department of Homeland Security (DHS) and the State Department announced (April 27) new immigration management actions in anticipation of a likely border surge with the end of the COVID-19 Public Health Emergency on May 11.
The new measures will cover actions occurring at, and beyond, the US southern border. Specifically, the agencies will collaborate to:
Implement previously-announced new border processes for persons, to include the rapid processing of removals of those deemed ineligible for asylum and the barring for at least 5 years for persons removed; expanded access to CBPOne to help migrants make appointments to appear at a US Port of Entry; and a new family reunification parole processes for El Salvador, Guatemala, Honduras and Colombia that will enable vetted persons to be paroled into the US on a case-by-case basis.
Open regional processing centers in foreign locations to "reduce irregular migration and facilitate safe, orderly, humane, and lawful pathways from the Americas," including in Colombia and Guatemala. Personnel will pre-screen persons to determine legal US immigration pathways, including refugee resettlement, parole programs, family reunification or labor-based visas. DHS says it expects to process between 5,000 to 6,000 persons per month in the centers. Spain and Canada are reportedly willing to take some migrants processed at the centers.
Launch a 60-day "surge campaign" with Panama and Columbia to disrupt criminal smuggling networks, particularly through the Darien corridor. The State Department will also work to combat smuggler misinformation by broadcasting accurate information about US migration laws and engaging with regional audiences to counter smuggler narratives.
Increase removals for persons already in the US illegally by scaling up the number of removal flights per week, including those to Cuba which paused during COVID-19. DHS claims that the number of weekly flights will double or triple for some countries.
House Republican Immigration Bill
House Republican leaders are expected to pass a long-awaited proposal on immigration reform. The “Secure the Border Act of 2023,” focuses on two aspects of system reform: border security and illegal migration, to include some asylum system reforms.
Among other reform aspects that have mostly not been addressed in the proposal includes legal migration reform (e.g., temporary workers, family reunification), policy on dreamers (persons brought here years, sometimes decades, ago as children who do not have permanent legal status in the US), and policy on millions of non-dreamer illegal migrants already living and working in the US.
The core proposals in the House bill include:
A restart of construction of a southern border wall with a 200 miles-per-year construction goal.
No fewer than 22,000 Border Patrol (BP) agents. (Note: this is a nationwide total, not just for the southern border. There are about 20,000 Border Patrol (BP) agents today, with about 17,000 at the southern US border. The Department of Homeland Security (DHS) uses a 24,000 agent number at the southern border, but this includes customs agents at ports of entry as well as BP agents who focus on preventing illegal immigration.)
Authority to remove persons seeking asylum to third countries while their asylum case is being considered (e.g. the Remain in Mexico policy), and deem persons ineligible for asylum (with limited exceptions) if they transited another country outside of their citizenship.
Tightening asylum claims by changing the current credible fear standard for claiming asylum from requiring that a person merely show a significant possibility of harm and/or persecution under current law, to showing that it is more likely than not that a person can meet asylum requirements and establish that their asylum claims are true.
A DHS requirement to return to service any detention capacity that was taken out of service at the end of the Trump Administration, and require the resumption of family detention.
A requirement to return unaccompanied children to their countries of origin unless they were victims of trafficking.
A limit on the ability of DHS to grant humanitarian parole, which is being used today for significant populations of persons in the US including evacuated Afghans and Ukrainians fleeing the war with Russia. An exception is specifically provided for the Cuban Family Humanitarian Parole program.
One of the key challenges with the proposal is that it requires potentially massive new funding investments in people, a border wall, detention capacity, and border security technology. But the Republican leadership is, at the same time, pushing for massive budget cuts in non-defense, Federal program spending to address the budget deficit. Irrespective of views on immigration policy, significant spending cuts would make much of this proposal unworkable.
The Senate is unlikely to consider this particular immigration reform proposal, and it is unlikely that a significant immigration bill will pass the Congress before the 2024 election.
Remain in Mexico Policy - Still Going
A District Court ruled (December 15) that the Trump Administration's "Remain in Mexico Policy" must remain in place while the Court considers litigation that seeks to keep the policy in place.
The Department of Homeland Security (DHS) moved to end the policy in August, after a 5-4 majority opinion by the Supreme Court in June held that the Biden Administration does have discretionary authority under current immigration law to cancel the policy. The policy generally kept asylum-seekers in Mexico while their asylum cases were considered (even though adjudication of any single case could take months or years).
While the Supreme Court ruled on DHS authority, it left to the lower District Court a decision on DHS compliance with Federal administrative procedures with respect to its decision to drop the policy. It is not clear how long the District Court will take to rule on the matter.
The Biden Administration extended (December 5) Temporary Protected Status (TPS) to Haitian citizens who have resided in the United States from Haiti as of November 6, 2022. The Administration cites “extraordinary and temporary conditions in Haiti” as a basis for the extension. Haitian TPS was last extended in August of 2021. The latest extension goes through August 3, 2024.
There currently are more than 56,000 Haitians within the approved TPS program, but that estimate is more than a year old and there may be many more who will apply for the program under the latest TPS designation given last summer’s surge at the border. Nearly 54,000 Haitians were encountered by the US Border Patrol during FY 2022. Besides Haiti, there are 14 other populations from countries with a US TPS designation.
There was an urgency to extend this TPS designation in part because of a Federal judge’s order stopping the use of Title 42 authority to remove migrants who entered, or are attempting to enter, the US despite any valid legal claim to remain (e.g., an asylum seeker). The Department of Homeland Security has promised to stop using Title 42 authority by December 21, 2022.
Title 42 authority permits the Director of the Centers for Disease Control and Prevention (CDC) to “prohibit … the introduction” into the United States of individuals when the Director believes that “there is serious danger of the introduction of [a communicable] disease into the United States." A group of public interest organizations sent a December 2021 letter to the Administration requesting the deportations cease on the basis of conditions in Haiti and what they hold is a questionable use of Title 42 authority over other laws and humanitarian considerations.
Special Process for Venezuelans
DHS announced (October 12) the implementation of a special process for Venezuelans trying to cross the southern U.S. border. The process is similar to the one implemented when Ukrainians started showing up at the southern border following Russia’s invasion of Ukraine in February.
Venezuelans seeking to enter the U.S. via asylum laws using the new special process will have the opportunity to be granted immigration parole while their asylum case is adjudicated, but those merely trying to enter the southern border outside of the process will be returned to Mexico and will be deemed ineligible for parole in the future.
Among other things, to be eligible for parole under the process a Venezuelan needs to have a U.S. supporter to provide financial and other support, and pass background checks. Persons will be deemed ineligible, among other reasons, if they tried to illegally enter the U.S. during the previous five years and were removed, or if they “irregularly entered” Mexico and Panama after the date of the announcement of the special process.
DHS said at the time of the process announcement that it is targeting an estimated 24,000 Venezuelans to legally enter the United States under the process, though it is not clear for what time period this estimate covers. In addition, the agency believes that more than 25% of Venezuela’s entire population has left the country, with many residing in nearby countries. Panama said it was seeing more than 3,000 people, mostly Venezuelan nations, cross into its territory per day via Colombia. And, the U.S. saw average monthly unique encounters of Venezuelan nationals at the southern border exceed 25,000 in August and 33,000 in September. Unique encounters of Venezuelan nationals rose 293 percent between FY 2021 and FY 2022, while unique encounters of all other nationalities combined increased 45 percent.
TPS for Ethiopians
The Department of Homeland Security designated (October 21) Temporary Protected Status (TPS) for Ethiopians in the United States as of October 20, 2022. This initial designation will last for 18 months.
TPS designations are made on the basis of at least one of three conditions: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. The Department says that this designation is being made on the basis of:
Armed conflict - persons are at risk of conflict-related violence, including attacks, killings, rape, and other forms of gender-based violence; ethnicity-based detentions; and human rights violations and abuses; and,
Extraordinary and temporary conditions - a humanitarian crisis involving severe food insecurity, flooding, drought, large-scale displacement, and the impact of disease outbreaks.
Ethiopian nationals will now join 15 other nationalities that received past deignations, and in may cases years of designation renewals. Neighboring country nationals with designations include Somalia, Sudan, and South Sudan. During 2022, nationals from Afghanistan, Ukraine, and Cameroon, were also newly designated. More than 352,000 persons in the United States had an approved TPS designation prior to new 2022 designations.
Under TPS, persons pay a fee and apply for the program. If deemed eligible, TPS persons can work and travel in the United States, and generally cannot be detained and removed based unless, among other reasons, they commit a felony or two or more misdemeanors.
“Dreamers” Program Uncertainty
The Deferred Action for Childhood Arrivals (DACA) program faces new uncertainty in light of a Federal Appeals Court decision (October 5) which held that DHS does not have legal authority for the DACA program as articulated under the 2012 DACA policy memorandum developed and implemented by the Obama Administration.
The Court did not, however, make a decision on DHS’s final DACA program regulation implemented in August (2022), therefore leaving the DACA program in place and sending the matter back to a lower District Court for its consideration of the regulation and program.
Ultimately, however, DACA could be ruled invalid based on the Appeals Court decision, or the matter could eventually be elevated to the Supreme Court. If elevated to the Supreme Court, it is possible that the Court could consider this issue in the spring of 2023. Or, it could be deferred to the 2023-2024 Court session, with a ruling sometime in 2024.
The DACA program only applies to those persons who, among other things, arrived in the U.S. by age 16 and before June 2007 and have continuously resided in the United States since that time. Persons granted DACA status can legally access a renewable, two-year work permit.
An estimated 616K DACA holders (a.k.a "Dreamers") exist today. Another 55K holders are currently in the adjudication process but are on hold pending the final outcome of court cases. DACA is not available to the many tens of thousands of children brought to the United States (or arriving unaccompanied) since June 2007. Such children may be eligible to stay in the United States because of other immigration authorities, or may not and may eventually be required to leave.
Ultimately, Congressional action on new/modified immigration laws is necessary to address this immigration issue and overcome decisions of the courts. Republican leaders have not supported immigration reform laws in the recent past, only increased immigration enforcement, and Republicans will lead the House of Representatives starting in 2023.
A group of major businesses sent a letter (October 20) to Congressional leaders urging action on legislation to permanently ensure residency protections for those in the DACA program. Businesses cited the significant potential job losses for such persons if the program were to expire.
Immigration and "Public Charge" Rule Changes
The Department of Homeland Security finalized a February proposed rule pertaining to the types of government assistance that will guide decisions on legal residency (i.e., green cards). Certain non-citizens seeking a visa or a change in residency status currently must show that they are not likely to become a “public charge,” where a person cannot support themselves and rely instead on public assistance at the government’s expense.
The Trump Administration had effectively expanded the public charge definition by incorporating into immigration adjudication processes consideration of types of public assistance not previously considered such as food stamps, Medicaid, housing vouchers, and benefits of other family members, among other things.
This final rule formally returns to methodology in place prior to the Trump Administration changes. Public charge assessments will be generally limited to traditional welfare cash assistance (e.g., Temporary Assistance for Needy Families, Supplemental Security Assistance), as well as long-term “institutionalization” at the government’s expense where a person is unable to work.
Underpinning the rule is the immigration adjudication principle that a person will be “likely at any time to become primarily dependent on the government for subsistence” versus the Trump Administration standard of merely “likely at any time to become a public charge.” Homeland Security argues that using “primarily” better connects to both current-law statutory language and Congressional intent the creation of current immigration law.
Border Wall Updates
The Department of Homeland Security announced (July 11th) that it will prioritize remaining prior year border barrier funding for environmental remediation and mitigation, as well as for installing updates – such as lighting, cameras, and detection technology – in locations where a physical barrier has already been constructed.
In terms of environmental planning, while DHS says that it will continue the environmental planning process for a new barrier system in the Border Patrol’s Rio Grande Valley Sector, it will terminate environmental planning for the Laredo Sector due to higher-than-expected remediation costs.
Los Angeles Migration Declaration
The White House announced (June 10th) during the Summit of the Americas the signing of a Declaration of Migration and Protection. The declaration affirms policy among signatories on a variety of matters dealing with refugees and migrants within the Americas such as ensuring migrant humanitarian needs, dealing with root cause issues, permitting flows of temporary workers, and strengthening country coordination.
Perhaps more significant, however, is that as part of the announcement the United States agreed to permit 20,000 refugees from the region over the next two years, which the Administration claims is a threefold increase from current levels. In addition, the United States also committed to increase the number of seasonal workers from Central America and Haiti by 11,500 workers. Other countries made refugee and worker admission commitments, as well.
Immigration for Ukrainians
The Biden Administration announced (April 21, 2022) a special process for admitting Ukrainian migrants into the United States. The United States, in committing to accept 100,000 Ukrainian refugees, has been struggling to develop a clear process to meet the commitment and avoid the attempts of refugees to enter the country through the Mexican border. The Department of Homeland Security (DHS) says that Ukrainians will be denied entry at the Mexican border and told to apply for its new process from this point forward.
Under the process, Ukrainian refugees will be able to enter the United States and stay for two years under current law provisions of humanitarian parole. To be eligible, a person must have been an eligible citizen of Ukraine as of February 11, 2022, have a sponsor in the United States, complete vaccinations and other public health requirements, and pass rigorous biometric and biographic screening and vetting security checks.
Persons wishing to sponsor one or more refugees would apply with the Department of Homeland Security via an I-134 Form process – Declaration of Financial Support. Basic information about the process will be provided on the DHS United for Ukraine website.
Asylum Processing Changes
The Department of Homeland Security announced (May 26th) that it is beginning to implement a rule adopted in March intended to speed the processing of persons claiming asylum by U.S. Citizenship and Immigration Services (USCIS). Under the rule, individuals who receive a positive credible fear determination are expected to receive a timely interview with an asylum officer and USCIS will determine if the individual should be granted asylum including if the applicant should be protected from removal. If the person is not granted asylum by USCIS, a removal proceeding will then move to an immigration judge.
The rule is intended to prevent every case from having to be fully adjudicated before an immigration judge, relying instead on the expertise of asylum case officers to help make a determination of eligibility. Fully adjudicating all cases through immgration judges has caused thousands of cases to be backlogged in administrative courts; 670,000 cases are currently pending. The rule’s provisions will be phased in as USCIS increases the number and expertise of its asylum officer cadre.
Domestic Processing & Resettlement of Afghan Evacuees
The Department of Homeland Security (DHS) announced (February 19, 2022) that “all remaining Afghan evacuees” have departed Joint Base McGuire-Dix-Lakehurst, in New Jersey. This was the last of eight domestic Department of Defense facilities temporarily housing Afghan evacuees after the United States left Afghanistan in the wake of the Taliban’s takeover in August 2021. Of the 84,600 Afghan nationals, American citizens, and Lawful Permanent Residents that have arrived in the United States as part of Operation Allies Welcome (OAW), 76,000 Afghan nationals have so far been resettled around the United States.
A new single domestic processing and temporary housing facility for Afghans began operations in Loudoun County, Virginia, at the National Conference Center. There are at least 2,800 Afghans still in U.S. bases overseas who may be processed through this facility. CBS News recently reported (February 24, 2022) on U.S. resettlement locations to date.
No Results Found
Convention and Protocol Relating to the Status of Refugees
This website of the United Nations provides a copy of the convention/protocol adopted by the international community on the treatment and protocol on refugees.
Status: the convention was adopted in 1951 and associated protocols in 1967.
Employment-Based Legal Immigration
This is a website of the State Department providing information on current laws, rules, and processes for employment-based immigration.
Status: no changes to legal immigration laws tied to employment are under consideration in 2022.
Posse Comitatus Act (PCA)
This is the foundational law guiding the use of the U.S. military. In general, this Act outlaws the willful use of any part of the Armed Forces to execute the law unless expressly authorized by the Constitution or an act of Congress. Per the Congressional Research Service, case law indicates that “execution of the law” in violation of the PCA occurs (1) when civilian law enforcement officials make “direct active use” of military investigators; (2) when the use of the military “pervades the activities” of the civilian officials; or (3) when the military is used to subject “citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.”
Status: PCA was enacted in 1878.
American Dream and Promise Act - Dreamers Bill (HR 6)
This legislation (H.R. 6) would, among other things, provide a legal-permanent-resident (LPR) pathway for Dreamer immigrants and persons in the U.S. under Temporary Protective Status. "Dreamers" are defined as persons brought to the United States before they were age 18 on or before January 1, 2021. Specific requirements would need to be met related to criminal history, education, and background checks, among other things.
Status: this legislation passed the Congress on March 18, 2021. The Senate has not considered the bill, and is unlikely to do so during the current (117th) Congress.
Deferred Action for Childhood Arrivals (DACA)
Deferred Action for Childhood Arrivals (DACA) policy permits certain immigrants brought to the United States as Children to remain and obtain work permits renewable with good behavior. To be a part of the original 2012 policy, immigrants had to be younger than age 31 on June 15, 2012, must have come to the U.S. when they were younger than 16, and must have lived in the U.S. since 2007.
Status: DACA policy was put into place in 2012 and remains in effect, though has been subject to repeated legal challenges. Current legal challenges limits DACA only to renewal requests, not initial DACA applications.
Remain in Mexico Policy
Remain in Mexico policy requires most asylum seekers to remain in Mexico while their cases are adjudicated.
Status: the program was effectively suspended at the start of the Covid-19 pandemic given that U.S. borders were closed anyway, and the Biden Administration formally suspended the policy upon entering office. The formal suspension of the policy was challenged in court by Texas and Missouri, and the court ordered the Trump Administration policy to be reinstated. The policy generally remains in effect as legal processes continue, though DHS implemented some operational changes.
Temporary Protected Status
The Department of Homeland Security (DHS) can designate a foreign country for Temporary Protected Status (TPS) due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. Currently, 320,000 foreign nationals from 10 countries living in the United States are protected by TPS.
Status: twelve countries currently have TPS designations. Each designation has unique expiration timelines.
Proposed Refugee Admissions for FY 2022
This is the Biden Administration's annual Proposed Refugee Admissions Report for FY 2022. The report provides that the Administration is raising the cap on refugee admissions from 62,500 in FY 2021 to 125,000 in FY 2022.
Status: updates on the number of refugees admitted into the United States during FY 2022 will be available in the spring of 2022.