Keith Mack
Immigration laws are a highly divisive topic in American politics, with the federal government spending an estimated $324 billion on immigration enforcement since 2003. The U.S. immigration system is a complex network of visas, humanitarian relief, pathways to permanent residency, and citizenship. While there is no one-size-fits-all solution to changing immigration laws, the power to do so rests with Congress, the courts, the U.S. President, and the states. The Biden administration has proposed expanding access to family-based green cards, increasing diversity visas, and granting citizenship to certain immigrants with TPS benefits. Executive orders, such as those issued by President Trump, can also significantly impact immigration law and policy, but they can be reversed by the next president. State legislatures also play a role in shaping immigration policies, as seen with the Texas Dream Act.
| Characteristics | Values |
|---|---|
| Immigration laws can be changed by | Congress |
| Immigration laws can be changed by | The U.S. Supreme Court |
| Immigration laws can be changed by | The President |
| Immigration laws can be changed by | Federal administrative agencies, such as the Department of Homeland Security, U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection |
| Immigration laws can be changed by | State legislatures |
| Immigration laws can be changed by | Individuals challenging existing laws or the government's interpretation of them in court |
| Immigration laws can be changed by | Executive actions |
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What You'll Learn
Granting citizenship to immigrants with TPS benefits
The United States immigration system is a complex network of visas, humanitarian relief, pathways to permanent residency, and citizenship. One such pathway is through the acquisition of a Green Card, which may lead to citizenship.
Temporary Protected Status (TPS) is a temporary immigration status provided to nationals of certain countries experiencing problems that make it unsafe for their nationals to be deported there. TPS was created by Congress in the Immigration Act of 1990 and grants the White House the executive power to designate and extend the status to immigrants in the U.S. based on certain criteria. TPS provides a work permit and protection from deportation to foreign nationals from designated countries who are already in the United States.
TPS does not provide beneficiaries with a separate path to lawful permanent residence (a Green Card) or citizenship. However, a TPS recipient who is otherwise eligible for permanent residence may apply for that status. Generally, a person who entered the United States without inspection is not eligible to apply for permanent residence. There is conflicting information from federal appellate circuits on whether a person with valid TPS status can adjust their status to lawful permanent residence if they are otherwise eligible.
Since 2021, the Biden administration has expanded the number of immigrants eligible for TPS, adding Afghanistan, Cameroon, Ethiopia, Myanmar, Ukraine, and Venezuela to the list of qualifying countries. Activists have called on Congress and the Biden administration to pass legislation granting immigrants with TPS a path to citizenship. President Biden has asked Congress to pass legislation that would allow TPS recipients who meet certain conditions to apply immediately for Green Cards, which could lead to citizenship.
Therefore, one way to change immigration laws to grant citizenship to immigrants with TPS benefits would be through legislative action by Congress. This could involve passing a law that creates a direct path to citizenship for TPS recipients or by expanding the criteria for Green Card eligibility to include TPS status. Given the complexity of the U.S. immigration system and the fact that legislative action may be slow, it is important for immigrants to seek legal advice and support to understand their options and navigate the system effectively.
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Protecting the rights of undocumented immigrants
Immigration law in the United States is a complex network of visas, humanitarian relief, pathways to permanent residency and citizenship, and temporary status for people facing specific crises in their home countries. While the Constitution does not permit foreigners to enter the US without proper authorization, it does protect their human rights once they are physically present in the country. This includes the rights to due process, equal protection under the law, freedom of religion and speech, and the right to live with one's family.
Undocumented immigrants are not specifically mentioned in the Constitution, but they are still protected by its principles. The Fifth Amendment states that "no person shall be deprived of life, liberty, or property, without due process of law," and the Fourteenth Amendment's Due Process Clause requires all state governments to provide equal protection under the law to all persons, regardless of immigration status. The Supreme Court has also extended Fourth Amendment protections to undocumented immigrants, although a "border search exception" allows the government to conduct warrantless searches within a 100-mile radius of any US border.
The right to legal counsel often doesn't apply in deportation proceedings because they are typically civil cases. However, under the Trump administration's "zero-tolerance" policy, illegal border crossings are tried as criminal cases, entitling those caught to legal representation. The right to counsel is only guaranteed by law when a person is accused of a felony, and crossing the border illegally is considered a misdemeanor.
Undocumented immigrant children also have a right to education. In the case of Plyler v. Doe, the Supreme Court ruled that if citizen children have access to free public education, so should undocumented children, based on the Equal Protection Clause of the Fourteenth Amendment.
To better protect the rights of undocumented immigrants, it is essential to increase access to legal services. The Immigration Justice Campaign is one such initiative that aims to increase free legal services for immigrants and leverage the voices and experiences of those impacted by immigration policies to inform legal and advocacy strategies.
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Reforming the Diversity Visa Lottery program
The Diversity Visa Lottery program, also known as the Green Card Lottery, was established by the Immigration Act of 1990. It is a US government lottery program that makes 55,000 immigrant visas available each year to people from countries with low immigration rates to the US. The program aims to diversify the immigrant population in the US and is administered by the Department of State under the Immigration and Nationality Act (INA).
To be eligible for the Diversity Visa Lottery, applicants must meet certain requirements. Firstly, they must be a native of a country with a low immigration rate to the US, determined by the number of immigrants sent to the US over the past five years. Additionally, applicants must have graduated from high school or its equivalent, or have at least two years of work experience within the past five years in a qualifying occupation. The list of eligible and ineligible countries is published annually by the US Department of State and may change each year.
There have been several attempts to reform or eliminate the Diversity Visa Lottery program. Critics of the program have pointed to instances of fraud, racism, and the random nature of the lottery as reasons for reform. In 2002, an incident involving an Egyptian immigrant who maintained residency in the US through his wife's diversity visa led to criticism of the lottery as a security threat. Opponents of the lottery have argued that it is susceptible to fraud and could potentially allow terrorists to enter the country.
In 2005, the United States House of Representatives voted to add an amendment to a border enforcement bill that would abolish the Diversity Visa Lottery. However, the bill did not pass in the Senate. Similarly, in 2009, a bill was introduced by Rep. Goodlatte that would have eliminated the Diversity Immigrant Program, but it did not pass. In the same year, Rep. Sheila Jackson-Lee introduced a bill that would have doubled the number of diversity visas available to 110,000 yearly, but this bill also did not pass.
While there have been several attempts to reform or eliminate the Diversity Visa Lottery program, it continues to be a pathway for individuals and families to obtain permanent residency in the US. The program provides an opportunity for those without family or employment ties to establish a new life in the country.
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Preserving the DACA program
The Deferred Action for Childhood Arrivals (DACA) program was established in 2012 to protect eligible young adults who were brought to the U.S. as children from deportation and provide them with work authorization for temporary, renewable periods. As of September 30, 2024, there were approximately 538,000 active DACA recipients from nearly 200 different countries of birth residing across the U.S.
DACA recipients are encouraged to submit their renewal requests between 120 and 150 days before the expiration date on their current Form I-797 DACA approval notice. Filing during this window reduces the risk of their current period of DACA and employment authorization expiring before a decision is made on their renewal request.
The future of the DACA program remains uncertain, with a case challenging its legality making its way to the Supreme Court in 2025. However, as of January 2025, the USCIS will continue to accept and process DACA renewal requests and accompanying applications for employment authorization. Current grants of DACA and related employment authorization documents remain valid unless individually terminated.
The Biden Administration published a final rule in 2022 to codify DACA, largely consistent with its existing eligibility requirements and scope. However, its implementation is limited by court rulings. The Trump Administration previously rescinded the program in 2017, but this was ruled unlawful by the Supreme Court in 2020.
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Increasing funding for immigration enforcement
This massive influx of funding has been directed towards various initiatives aimed at strengthening border security and enhancing enforcement capabilities. For instance, ICE has utilized these resources to increase its capacity to detain immigrants, electronically monitor non-citizens, and carry out deportations. The funding has also enabled the purchase of additional detention beds, with ICE detention bed funding reaching a record level in FY 2024, funding 41,500 beds. This increase in funding has resulted in a corresponding increase in the number of detainees, with ICE detaining more people than the number of beds funded by Congress.
The Customs and Border Protection (CBP) agency, which manages the country's borders and facilitates trade and travel, has also experienced a significant boost in its budget. In FY 2024, CBP's budget stood at $19.6 billion, more than triple the amount from FY 2003. The House Appropriations Committee further increased this funding to $19.9 billion, while the Senate Appropriations Committee approved $18.1 billion. This additional funding allows CBP to channel resources towards border militarization, targeting immigrant communities, and increasing detentions.
While increased funding for immigration enforcement has been a consistent approach, it has not been without its challenges and criticisms. Despite record-level spending, enforcement alone has proven insufficient to address the complexities of irregular migration. Furthermore, critics argue that the focus on enforcement has resulted in significant unintended consequences, including increased deaths along the Southwest border. Additionally, the disproportionate allocation of resources towards enforcement has outpaced funding for humanitarian protection and adjudication systems, potentially hindering a more holistic and compassionate approach to immigration policy.
In conclusion, increasing funding for immigration enforcement has been a prominent strategy in shaping US immigration laws. While this approach has led to enhanced border security and enforcement capabilities, it has also faced criticisms for its limited effectiveness in addressing irregular migration and its potential negative impacts on immigrants. A balanced approach that considers broader reforms and increased support for social services may be necessary to complement the enforcement-centric strategy.
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Frequently asked questions
The US President, Congress, the courts, and the states all have a role in passing or enforcing US immigration law.
Immigration laws can be changed by passing new legislation in Congress, or through executive orders issued by the President, which can be challenged or reversed by the next president. Federal courts can also change immigration law by giving their opinion on existing laws.
Since taking office in 2021, President Biden has acted to reverse Trump-era immigration restrictions, including expanding the Deferred Action for Childhood Arrivals (DACA) program and increasing the number of diversity visas.
