Jurisprudence

Immigration Is Not a “Crisis”

What would our laws look like if we stopped treating migration as a problem to be solved?

Men and women hold up their right hands as they stand outside in a ceremony.
New U.S. citizens recite the the Oath of Allegiance during a naturalization ceremony at Rockefeller Center on Sept. 17, 2019, in New York City. Drew Angerer/Getty Images

The border is not in crisis. The current increase in unaccompanied children and asylum-seekers on the Southern border, rather, is a continuation of a trend that has gone on for more than half a decade, worsened in this case by a range of factors, most significantly two devastating hurricanes and the COVID-19 pandemic. This has not stopped right-wing politicians and media outlet from using this moment to stoke the fears and racial anxieties that have served them well in the past, putting President Joe Biden’s immigration agenda in even more peril than it already was.

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That agenda is understandably popular among many pro-immigrant groups and advocates. After four years of a president who derided, insulted, and marginalized immigrants in discourse and through law and policy, a bill (and the executive orders that preceded it) that is built around the idea that the United States values immigrants feels almost revolutionary. So far, the Biden administration has, among other measures, ended the “remain in Mexico” program, created a task force for reuniting families separated at the border and another one for welcoming “New Americans,” and granted temporary status to people from both Venezuela and Burma who fear returning home. Moreover, it has proposed the U.S. Citizenship Act of 2021, a more ambitious bill than any of its predecessors, that would create pathways to citizenship for a majority of undocumented immigrants and that incorporates large chunks of pro-immigrant groups’ policy proposals. Surely, its passage would be a major win for progressive policies in the United States.

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However, as the current situation at the border paves the way for the legislation’s dilution, and we see Congress buckling against the politics of immigration reform, I cannot help but feel that Biden’s immigration agenda is really a wish list of the past, rather than a vision for the future. This is because the Biden immigration policy is built from a dated understanding of both immigration and its governance: the idea that immigration is a problem, a problem that can be managed, but a problem nonetheless.

This is despite the fact that by now we have plenty of evidence that, at least in the U.S., migration is an economic and social boon: Immigrants contribute greatly to many high-value industries and have no negative impacts on labor markets (in fact it’s probably the opposite) or crime rates. It’s true that through executive orders and the U.S. Citizenship Act, the Biden agenda seeks to “promote integration, inclusion, and citizenship,” however, the policy vision still centers around the idea that these things are a compromise in exchange for overall limits to immigration. It is not only that the U.S. Citizenship Act will continue a decadeslong trajectory of increasing border security, but also the fact that one of its central promises is “to address the root causes of migration.” In this case, addressing the causes means preventing more of it.

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In reality, Biden’s agenda may be pro-immigrant, but it’s not pro-immigration. This seeming incongruence could be blamed on the fact that the Biden administration is attempting to tackle two different issues: what to do with undocumented immigrants living in the U.S. right now and how to change the legal immigration system. Although in technical policy terms, these issues are not in conflict, politically they are.

The Biden proposal, as well as that of his Mexican counterpart, wagers that migration from Central America, which is where most recent arrivals at the Southern border come from, can be quelled by investing in the region. In fact, as sociologist Saskia Sassen has persuasively argued, it is likely that investing more heavily in Central America will lead to more immigration from there because migration rates tend to increase as individuals move out of poverty, and those people tend to go to the places that invested in (or invaded) their home countries. This is by no means an argument for not carrying out development efforts; trying to create a better world is obviously a good thing to do. However, a better world is not synonymous with a more stagnant one.

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Even under the current political constraints, there are ways in which the Biden administration can tweak its proposals to improve the lives of current and future immigrants. One way is to expand the U.S. Citizenship Act’s provisions for new legal migration programs and the other is by dramatically modernizing immigration administration. The latter is a lower-hanging fruit, so let’s start there.

In an era where other countries are developing things like e-residency, immigration administration in the U.S. will still look as bureaucratic as it did 20 or 30 years ago, even if Biden’s plan is fully implemented. This is because the proposal won’t alter the fact of how immigration administration actually operates. Most immigration applications are needlessly complicated, duplicative, and costly. A relatively small example of this is the employment authorization process. While certain applications are pending, like asylum, immigrants are entitled to work. However, they must apply for a permit that lasts only two years. Meanwhile, the original applications can take much longer than that. If that happens, then an applicant has to renew the employment authorization, which can take up to eight months, often leading to long periods of time when they cannot work. Moreover, Citizenship and Immigration Services must adjudicate each employment authorization application, further jamming the system.

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In this way, the inefficient bureaucracy begets more bureaucracy, creating a burdensome cycle of processes. A solution is to automatically sign up immigrants for the benefits that they qualify for and make them last for the actual time it takes to process applications, thus erasing the need for multiple applications at multiple times. Another helpful step would be to eliminate inefficient procedures such as the Adjustment of Status process, which simply adds a lengthy step (sometimes more than three years) on the path to a green card but that does not provide any new information to the government and serves only to keep people in limbo. Many changes like these could still be carried out by executive action, as they relate only to immigration administration. In fairness, Biden’s executive orders do have some of this modernizing vision. However, the reality is that the proposals announced do not go nearly far enough.

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Unfortunately, while some of these changes are still feasible, creating many more paths to legally migrate will be much harder. Nevertheless, the Biden administration could seek to expand the Heartland Visa program, a program to send foreign workers to specific economically depressed regions, which is currently only at 10,000 visas. Moreover, the administration should revise and increase the numerical caps for family and employment-based green cards and nonimmigrant visas, which have not been updated since 1990. In this way, the Biden administration, without fundamentally altering its proposal, could significantly increase legal migration.

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It is worth noting that these changes, though necessary, will not be enough to transform the Biden agenda from progressive to visionary. In order to truly build an immigration agenda of the future, American policymakers will need to understand that migration is not going to end: not in the short-term and not after Central American development programs are enacted. Without more legal paths for people to come to the U.S., they will continue to do so in the shadows of the legal system. Migration rates are not determined by migration laws; we should therefore create a legal regime that reflects that reality and gives future migrants a chance to move safely and securely.

As Sonia Shah writes in her wonderful book The Next Great Migration, for many years we’ve conceived of migration “as a harbinger of terror. We’ve constructed our story about our past, our bodies, and the natural world in which migration is the anomaly.” However, and crucially, this idea “is an illusion.” This centuries-sustained campaign against migration still holds sway over much of public opinion and legislation. To not fight against this illusion is not only a failure of policymaking but of imagination.

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