While the immigration landscape continues to be marked by constant change and churn, 2021 was a year that was truly like no other in terms of policy and potential changes to our current immigration system. The year started with the obvious change in administrations, as the outgoing Trump Administration’s hardline immigration policies were met with incoming President Biden’s softened stance on global immigration.
From the outset, President Biden immediately sought to get rid of the existing Migrant Protection Protocols (aka: Stay in Mexico policy), but that was immediately met with pushback from the federal courts, which ruled that the Biden Administration had changed a federal policy without thoroughly considering the consequences of the change. As a result, MPP continues to be in effect, grudgingly being implemented by an administration that does not believe that the policy is worthwhile or humane. President Biden’s election also corresponded with a huge surge in migrants coming north, mainly from the Northern Triangle countries of Guatemala, El Salvador and Honduras, along with Mexico and select South American countries. The surge has been unprecedented, and Customs and Border Protection numbers reflect the dilemma – according to available data from CBP, land border encounters through September 2021 total 1,734,686. In 2020, that number was 458,088 (obviously impacted by the COVID-19 pandemic), but 2019 numbers show 977,509 encounters. In short, 2021 is showing almost an 80% rise in encounters across the country’s southern border, a situation that is unsustainable and has led to appalling conditions at the border. When compounded by the turmoil in Haiti and the Administration’s botched withdrawal from Afghanistan, the flow of refugees from the United States has been extraordinary thus far.
The Biden Administration’s approach to immigration adjudications has also been noteworthy. Under the Trump Administration, H-1B visa petitions were subjected to very high rates of denial and the issuance of often onerous Requests for Evidence. Following the inauguration, USCIS reinstituted a long-standing policy of providing deference to the agency’s prior decisions; in short, if an H-1B petition was granted to an individual in the past, the agency should defer to that determination in adjudicating any new filing. This has helped to improve overall H-1B approval rates, which in the current environment of labor shortages is a relief for US employers. However, not all news was cheery, as USCIS failed to use 220,000 family-based visas and 157,000 employment-based visas in the fiscal year. Although a bill that has been passed by the House of Representatives that would permit USCIS to recapture these unused visas and green cards, if faces an uphill climb in the Senate. Nonetheless, USCIS’ failure to utilize 377,000 visas is both astounding and maddening, particularly given the lengthy delay that many applicants have already faced in awaiting their immigrant visas. Those lost green cards represent individuals waiting to open a business, spouses that want to work that are unable to do so, children that are looking to go to college and individuals that are simply anxious to come to the United States. If there is a constant theme that seems to run throughout all administrations, it is that accountability remains scarce.
2021 has also been a year of drastic change in policy from the enforcement end of the immigration system. The White House temporary suspended all removals in the early months of the administration and has reinstituted the use of “prosecutorial discretion” as a means of avoiding the institution of removal proceedings against individuals that may be in the country unlawfully but are able to present factors that may not warrant the government’s priority. These factors, such as long-time residence, lack of a criminal record, employment in an essential industry or position and significant family ties, may render an individual’s case a non-priority and permits the government to pursue higher priority matters, such as individuals with serious criminal records or repeated immigration violators. Prosecutorial discretion was nonexistent under the previous administration, which resulted in a huge court backlog. As a result, immigration judges carried dockets choked full with cases, leading to increasing case delay and concerns of burnout. By providing both immigration judges and DHS attorneys with tools to ease their caseloads, the Administration has brought some relief to court dockets and individuals alike.
Looking forward, all eyes are on the United States Congress. The immigration reform bill that has passed the House of Representatives is attached to the President’s larger “Build Back Better” plan, which is a sweeping human infrastructure bill that seeks to target a variety of non-physical needs, such as universal pre-K education, climate change, expanding the child tax credit and growing Obamacare’s subsidies. By attaching immigration reform to the BBBA’s largely spending-centric focus, Democrats are hoping to persuade the Senate Parliamentarian (Senate official that advises the Senate on the appropriateness of inclusion of certain policies within a bill) to allow the immigration proposals to remain. Previous requests to include immigration reform in spending bills have been nixed, as changes that only have a budgetary impact may be included to require a 51-vote passage. Substantial changes in policy require a 60-vote threshold and the likelihood of garnering 10 Republican votes appears slim. If the measure passes Parliamentary scrutiny, all eyes will be on Senate Democrats, and particularly Senators Joe Manchin (D – W.Va.) and Kyrsten Sinema (D – Ariz.), as the bills passage may help to provide a pathway to legalization for individuals with DACA and Temporary Protected Status. Senators Manchin and Sinema have famous bedeviled Senate Democrats hoping for the bill’s quick passage, raising concerns about the overall bill’s price tag. While the immigration measure would fall short of providing a pathway to citizenship to those groups, adopting the provision would have an outsized impact on recipients, providing employment authorization and relief from removal for an estimated 7 million individuals. It would also permit USCIS to recapture the 377,000 unused visas that expired in the last fiscal year, which would be a boon for those awaiting the grant of their residency status.
As has been a consistent theme involving immigration matters, much of the systemic changes needed for truly reforming the country’s immigration system lies with Congress and ultimately with the voter. Voters that demand political purity from their elected officials cannot complain when reforms fail, as passing legislation inherently requires negotiation and trade-offs. However imperfect a first step the Build Back Better Act is (and much can and should be debated as to the merits of the provisions included in the bill), BBB nevertheless represents a genuine improvement with respect to the nation’s immigration woes over the failures of Congresses-past. Handwringing about the cost and social impact of the bill will undoubtedly continue, but one thing remains true if BBB passes – baby steps of progress are steps, nonetheless.