Migration Policy Changes under the Obama Administration and in the First Year under the New U.S. President Donald Trump | Northern America | bpb.de

Overview of Immigration in the United States

The Interner Link: United States (U.S.) has the largest immigrant population in the world and continues to maintain its status as a "nation of immigrants". In 2015, the U.S. had an estimated population of more than 43.3 million that was foreign born. 'Foreign born' refers to any individual who is not a U.S. citizen at birth – this includes naturalized citizens, permanent residents, temporary migrants, humanitarian migrants as well as unauthorized migrants. According to the U.S. Census Bureau, it is projected that almost one in five persons among the U.S. population will be foreign born by 2060. The Department of Homeland Security reported that 1,051,031 individuals received lawful permanent resident status in 2015. Lawful permanent residency can be obtained through two pathways: either as a new arrival or status adjustment if a person is already present in the U.S. Figure 1 illustrates the trend of permanent residency granted in the U.S. over the past decade.

Moreover, persons granted lawful permanent residency that year came mainly from Asia (40 percent), North America (35 percent) and Africa (10 percent). The top country of birth was Mexico followed by China, India, the Philippines and Cuba respectively, representing the top five countries of birth for persons granted lawful permanent residency (see figure 2).

California was also the top state of residence of persons (209,568) who were granted lawful permanent residency that year. Among the different classes under which lawful permanent residency is granted, family reunification was the largest admission channel as represented by both classes: immediate relatives of U.S. citizens (44 percent) and family-sponsored Externer Link: preferences (20 percent). While refugee admissions only constituted 11 percent of lawful permanent residents in 2015, the number is still significant as it was the fourth largest admission category after employment-based preferences (14 percent) (see figure 3).

Labor Migration

The U.S. has a long tradition of hiring foreign labor, especially skilled workers. According to the U.S. Bureau of Labor Statistics, foreign-born workers made up 17 percent (27 million) of the American workforce in 2016. While immigrants do not make up the majority of workers in any U.S industry, certain industries are more reliant upon immigrant workers than others. The Pew Research Center found that industries such as private households; textile, apparel and leather manufacturers; and the agricultural sector had the greatest share of immigrant workers. To attract foreign-skilled labor, the Obama administration created a program to facilitate visa acquisition for people who invest in the United States and for students who pursued science, technology, engineering and math (STEM) fields in post-secondary. In 2016, Obama pushed forward a "start-up" visa, targeted towards immigrant entrepreneurs to promote business growth and job creation in the U.S. Before in 2014, the Obama administration had already broadened the scope of rights of foreign workers holding a visa for temporary employment in the U.S (H1-B visa). Accordingly, they were granted more flexibility to travel back home and were afforded more allowance in changing jobs, applying for work spousal permits, and making it easier for them to obtain a green card. While this is welcome news for some immigrants, critics of the H1-B visa program lament the program is being exploited by employers to hire temporary, cheap foreign labor at the expense of American job prospects and wage levels with most of the awarded visas going to outsourcing firms.

In April 2017, President Obama’s successor in office, Donald Trump, signed the Executive Order "Buy American and Hire American" to address the criticism of the H1-B visa. This order would reform the H1-B visa’s existing lottery system to one that prioritized giving out visas to high-skilled, high-wage labor as President Trump had campaigned heavily to restore American jobs eliminated due to global outsourcing. His Executive Order also prioritized the awarding of federal contracts to American businesses. On August 2nd, Trump announced his support for the Reforming American Immigration for Strong Employment Act or RAISE Act, a bill proposed by Republican Senators Tom Cotton and David Perdue that would decrease legal immigration by half in ten years (through the limitation of family reunification) and establish a merit-based immigration system that favored high-skilled immigrants, similar to systems in Australia and Canada. While attracting high-skilled labor is a priority area, certain industries such as the agricultural sector rely on low-skilled labor heavily. There was a jump of 36 percent for approved temporary "guest worker" applications (under the H-2A visa) in 2017 from 2016, indicating farmers’ greater reliance on these workers’ labor to perform agricultural work. In the U.S. the percentage of farm workers who are unauthorized is estimated to be 70% by observers while 48% is reported by the U.S. Department of Labor’s National Agricultural Workers Survey.

Comprehensive Immigration Reform and the Securitization of Immigration

In the post-9/11 era, the unauthorized movement of people across international borders has increasingly been conceptualized as a risk for national security. Border security and border management have gained policymakers’ major attention and the public has become ever less accepting of undocumented immigration. In 2015, there was reported to be an estimated total of eleven million unauthorized immigrants in the U.S. Over the last decade, the U.S has struggled to pass a comprehensive immigration reform (CIR) package which not only enhances border security, but also offers ways for unauthorized immigrants to legalize their status, and creates a framework for the import of foreign labor to better meet the country’s existing and future labor market needs. Despite marrying these objectives, the road to CIR has not been straightforward given the last major piece of CIR legislation was successfully passed over three decades ago, with the Immigration Reform and Control Act (IRCA) of 1986. Several immigration laws passed since the IRCA have focused mainly on the criminalization of immigrants including the Immigration Act of 1990, Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and U.S Patriot Act of 2001. Even with Barack Obama securing a second term as President of the United States in November 2012, two CIR attempts had failed. One attempt was the bi-partisan effort to pass immigration reform bill S.744, also known as the "Border Security, Economic Opportunity, and Immigration Modernization Act".

This bill was written by the "Gang of Eight", group made up of four Democrat and four Republican Senate members. The bill would allow unauthorized immigrants who have arrived before 2012 and meet certain conditions (i.e. no felony committed, holding a job, paying taxes back) to remain in the country without the fear of deportation and apply for a green card after ten years. After that, they would need to wait for three years before being able to apply for citizenship. Youth under the ‘DREAM Act’ (Development, Relief, and Education for Alien Minors Act) or ‘DREAMers’ would have a faster track towards the green card and citizenship, as they would only need to wait five years to apply for the green card and citizenship shortly afterwards. Agricultural workers would also be eligible after five years but would not be eligible immediately for citizenship. The bill ended up being passed by the Senate in June 2013 but failed to reach the House for a vote, quashing hopes of immigration reform.

The second attempt for reform came in November 2014 from the Obama administration who issued an executive order that would expand the Deferred Action for Childhood Arrivals (DACA) policy introduced in 2012. Under this order, those who had arrived in the U.S before age 16 and had been living in the US since 2010 were granted a three-year period (instead of originally two years) where deportation is deferred and can legally work. Also, the order would extend similar protection to parents of US citizens or green card holders, who have lived in the US continuously since 2010. The opposition to this executive order was immediate, protesting that the President had overstepped his powers. Soon, this executive order was brought before the courts. In November 2015, the Federal appeals court ruled that Obama had exceeded his authority. In June 2016, the Supreme Court blocked Obama’s executive order, effectively diminishing hopes to expanding the DACA program and bringing about significant CIR to protect unauthorized persons from deportation.

While both attempts would have changed the lives of unauthorized immigrants in the US (had they been successful), these pieces of legislation also included significant provision devoted to enhancing US border security. In the Border Security, Economic Opportunity, and Immigration Modernization Act, $46 billion was devoted to border security that would include building a fence that would cover 700 miles (in addition to the fences that already exist along parts of the US-Mexican border ), creation of an exit system that captures the biometrics of foreigners leaving the US, and employment and hiring 20,000 additional Border Patrol agents. Additional technological security detection measures (i.e. ground sensors, video and mobile surveillance systems) would be implemented. Obama’s 2014 Executive Order also meant increasing the number of agents at the border, and applying changes to Immigration and Customs Enforcement (ICE) to make personnel closer to traditional law enforcement officers. At the same time, the overall number of deportations increased more than under other presidencies. Obama placed a priority on the deportation of criminals or those with prior convictions (rather than families) and recent unauthorized border arrivals.

The Trump administration has continued this securitization agenda of unauthorized arrivals, focusing on the removal of unauthorized persons with criminal charges or convictions – a key element of his presidential campaign. On February 17, 2017, there was a "Day without Immigrants" in response to the Trump administration’s securitization agenda, where immigrant-owned shops were closed and immigrant workers did not go to work to show the impact of immigrants on the economy but to also protest such securitization of unauthorized immigrants. Under Executive Order 13769, the Trump administration also increased the number of enforcement and removal immigration officers, cut off federal funding of sanctuary cities , and published criminal actions committed by undocumented persons.

On July 20th, Senators Dick Durbin and Lindsey Graham introduced the bipartisan DREAM Act as another attempt to provide a legal pathway for unauthorized immigrants who had arrived as children. Congressional action on the issue became further heightened as President Trump announced on September 5th the end of DACA within six months, urging for an alternative proposed by Congress. In response, fifteen states and the District of Columbia filed a lawsuit against the U.S. government to block the move. On September 14th , the Democrats and Trump are reported to be closer to a deal on DACA, however it is unclear what concessions will be made on both sides to ensure legal protections for DREAMers.

The Trump administration also set into motion the planning, design and construction of a wall along the southern border, another earlier election campaign promise. In July, the House passed a spending bill that would allocate $1.6 billion to fund Trump’s wall. However, it is unclear whether Trump will secure such an amount as the bill still needs to be passed by the Senate later this year. Moreover, the Trump administration’s security agenda outlined for the construction of detention facilities for unauthorized arrivals, termination of the "catch-and-release" practice (under which unauthorized immigrants without documentation are released as they wait for court hearings), and greater power afforded to State and local enforcement authorities to perform functions of immigration officers. Visa-related and entry securitization measures were also implemented. The Trump administration suspended the visa Interview Waiver Program , mandating that "...all individuals seeking a Externer Link: nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions." In January 2017, they also enacted a travel ban that entailed a suspension of immigrants from seven Muslim-majority countries for 90 days. These countries were Syria, Iran, Iraq, Libya, Sudan, Yemen and Somalia.

Mass protests in cities and airports took place in response to the travel ban, as critics denounced the ban as discriminatory for targeting immigrants from Muslim countries. The measures also caused much disarray and chaos for travelers and their families, as some travelers were detained at airports while others prevented from boarding their flights. Foreign governments also contended with understanding the enforcement and impact of such rules on their citizens. The travel ban was brought before the courts. On January 28, a New York judge partially blocked the ban. The day after, a Massachusetts judge issued a restraining order. The Trump administration eased travel restrictions for green-card holders in February, however their order was hit with further setbacks as a US district court judge blocked the order nationwide. The US judges also ruled against reinstating the travel ban. In March, the Trump administration issued a second travel ban in attempt to replace the first. This time, Iraq was removed from the list. The travel ban blocked citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen from applying for US visas for 90 days. Trump further blocked all refugees from entering the country for 120 days. Again, the travel ban was blocked by court decisions. In response, the Trump administration appealed to the Supreme Court.

On June 26, a Supreme Court ruling cleared the way for some parts of President Trump’s travel ban. However, the ban could not be applied to those with "a credible claim of a bona fide relationship with a person or entity in the United States" . This meant relatives, people working in companies or students would still be allowed to travel to the US. The Trump administration had narrowed the definition of relatives as being spouses, children, parents, siblings, fiancés and had excluded other categories such as grandparents. On July 13, a Honolulu judge ruled that the ban could not exclude grandparents or other relatives (i.e. aunts and uncles, cousins, nephews and nieces) of U.S. citizens. Some opponents were still dismayed at the ruling as many refugees would suffer from being stranded abroad due to their lack of "bona fide" ties while the court case unfolds. On September 7, a U.S. appeals court rejected Trump’s travel ban on refugees, noting that the refugee’s relationship with their resettlement agency should make them exempt from the ban. However, a few days later, the U.S. Supreme Court upheld the ban on refugees, preventing the refugee ban from being lifted. Later in September, Trump’s administration expanded the list of countries whose nationals are banned from travelling to the US, now including Chad and two non-Muslim countries: North Korea and Venezuela.

Responding to Humanitarian Crises

The US has the largest refugee resettlement program in the world. The President sets the quotas (in consultation with Congress and other government agencies) for the total number of refugees admitted each year into the US. In addition, quotas are set for specific countries or regions from which refugees are admitted. During Obama’s second term in office, the ceiling for the total number of refugees admitted remained unchanged from 2013 to 2015 (see figure 4). It was not until 2016 that the ceiling increased to 85,000 (from 70,000) largely in response to the global refugee crisis, heightened by the growing number of Syrians fleeing violence and conflict. According to the United Nations High Commissioner for Refugees (UNHCR)’s 2017 figures, over five million people have fled Syria for neighboring countries and beyond as refugees. In face of pressure from the international community to accept their fair share of hosting refugees, the US announced in September 2015 that they would resettle 10,000 Syrian refugees , a target which they exceeded by accepting 12,587 refugees in the fiscal year (FY) of 2016. In total, 84,994 refugees were admitted in 2016. The top three countries that refugees came from were Democratic Republic of Congo (19 percent); Syria (15 percent); and Burma (15 percent).

While the decision to accept 10,000 Syrian refugees received support from fellow Democrats, human rights groups considered the number to be low as they argue that the US has the capacity relative to its population and economy to accept a greater number. Republicans condemned the decision and instead advocated for stronger border controls. They also stressed the need for heightened security measures to separate refugees from terrorists. State governors in the US also expressed opposition, fearing that domestic security would be compromised over the possibility that terrorists would be able to enter the US. The Obama administration however stressed that refugees were subjected to the highest level of security screens of any traveler to the US , with an average processing time of to two years. For the FY 2017, the US planned to accept a ceiling of 100,000 refugees ; this number was later increased to 110,000 amidst humanitarian concerns. While this ceiling set by the Obama administration would have propelled the US to undertake a greater role in refugee resettlement, the FY 2017 ceiling was reduced to 50,000 shortly after Donald Trump’s presidential inauguration in January 2017. The Trump administration within their first month in office issued Executive Order 13769, also known as "Protecting the Nation From Foreign Terrorist Entry into the United States" to revise the ceiling but also charted the suspension of the refugee resettlement program, stopping refugee entry into the US for 120 days. Syrian refugees were further banned indefinitely. Moreover, the order instructed for the review and revision of the refugee resettlement program. On July 12th, the US reached the 50,000 cap of refugee admissions. It is expected that the number of incoming refugees will drop even further as Trump's administration has announced to admit only 45,000 refugees in 2018.

Meanwhile, the country’s northern neighbor Canada has seen an increase of refugee claimants since January 2017, with reports of increasing unauthorized border crossings along the Canadian-US border. It is believed that most recent arrivals are Haitian nationals from the U.S. who were granted Temporary Protection Status (TPS) in 2010 but now are faced with the expiration of their TPS in January 2018, leaving them subject to deportation.

Asylum Seekers from Central America

The Obama administration’s decision to increase the refugee ceiling for FY 2016 was also to address the large increase of Central American asylum seekers, specifically from the "Northern Triangle" region consisting of El Salvador, Honduras and Guatemala. This region has been hit with ongoing gang-related violence, political and economic instability as well as hardship from natural disasters – factors that have contributed to the continued flight of individuals and families. In 2015, the US recorded the highest amount of affirmative asylum applications (estimated 83,000) received since 1996. During that year, a total of 26,124 persons were granted asylum either affirmatively or defensively, the majority coming from China (23.7 percent); El Salvador (8.3 percent); and Guatemala (8.0 percent). The number of children’s asylum claims also increased 112 percent from 2014; Guatemala and El Salvador were the main drivers. According to the US Department of Homeland Security, Central Americans had exceeded Mexicans for the first time in the greatest number of apprehensions made along the southern border in 2014 and later again in 2016. Moreover, unaccompanied minors and families now represented the primary groups trying to cross the southern border without authorization rather than single adults.

Despite an earlier promise from Obama in 2009 to end family detention, a new immigration centre for families had opened in response to large numbers of arrivals from Central America. In addition to this, critics have protested the tough enforcement of deportations of Central Americans during the Obama administration. While the securitization measures of the Obama administration have been criticized, the administration did implement further efforts to address the region’s humanitarian crisis. One of these efforts was the Central American Minors (CAM) Refugee program created in 2014 to allow qualifying minors in Honduras, El Salvador and Guatemala a safe and legal pathway to join family members legally authorized in the US instead of having to undertake a perilous journey. In 2016, eligibility criteria for the CAM Refugee program was expanded to include additional family members of qualifying minors. However, the Trump administration terminated the program in August 2017, cancelling more than 2,300 applications of refugee minors who were waiting for approval. Immigrant advocacy groups argue that the termination of the legal pathway will prompt minors to undertake the perilous journey as their only way to claim for asylum.

Moreover, the Obama administration had announced a partnership with Costa Rica in 2016 to launch a protection transfer arrangement (PTA) that would also involve the UNHCR and International Organization for Migration (IOM). Under the PTA, the most vulnerable asylum applicants in the Northern Triangle region would be pre-screened by the US and the parties would coordinate the transfer of the applicants to Costa Rica for immediate protection as they wait for their refugee applications to be processed for resettlement in the US.

Cuba and Bilateral Relations

Bilateral relations in addition to global humanitarian crises have helped shape US refugee policy. One example has been the elimination of the "Wet foot, dry foot" policy for Cuban refugees in January 2017 by the Obama administration. This policy had existed for over two decades, allowing Cubans who reached American soil without authorization to be entitled for legal residency while those intercepted at sea would be sent back. The policy is a remnant of the Cold War, originally implemented to accommodate the large number of Cubans fleeing from repression. The elimination of this policy came as Obama sought to improve Cuban relations and ensure equal treatment among migrants while securing agreement from the Cuban government to accept ineligible Cuban asylum returnees. The reaction to this change has been mixed. Supporters agree that migrants are not being treated fairly and recent Cuban migrants are coming to the US for economic reasons, not in fear of political persecution. However, critics assert that the removal of this policy will signal to dictators that the US condones human rights abuses. It is unclear whether the Trump administration will decide to restore the policy or not.