Giving Compass' Take:

• Doris Meissner and Julia Gelatt share eight immigration poly areas that the United States to consider in 2019 as the debate around the subject heats up. 

• How can funders advance productive debate around immigration in the United States? 

• Read about practices to build immigration consensus in a divided world. 

The United States is witnessing one of the most dynamic policy periods in the immigration arena, with the issue continuing to be central to the Trump administration’s domestic agenda.1 From the earliest days of the administration, executive-branch tools—including presidential executive orders, proclamations, departmental policy memoranda, proposed regulatory changes, and an array of other actions—have been used to recalibrate longstanding policy and practice across much of the U.S. immigration system. This executive-branch activism contrasts with a nearly two-decades-long inability by Congress to legislate changes to the U.S. immigration system, except for appropriations that have demonstrated support across administrations and political parties for major funding increases for immigration enforcement, especially in the years since 9/11.

This period of significant action by the executive branch, which has surfaced a real questioning of long- held immigration policies and practices, presents a new opportunity for lawmakers to inject policy ideas of their own into what have been prolonged, often stagnant, legislative debates.

The 116th Congress began in January 2019 amid a partial federal government shutdown centered on questions of border security funding. Congress has thus far focused its attention primarily on certain high-profile administration measures, such as the separation of families at the U.S.-Mexico border in 2018 and spiking migrant flows from Central America, as well as the future of DREAMer and Temporary Protected Status (TPS) populations whose legal status programs in the United States were terminated by the Trump administration and are now being litigated in the courts.

Beyond these and other immigration topics that have received sustained public attention, there are other, less visible yet important policy areas that deserve review and could benefit from more information sharing with the public and discussion of possible policy choices. This report identifies eight such issues and unanswered questions surrounding them. It also highlights possible policy solutions or opportunities where, in the short term, Congress could begin conversations to advance future legislation.

Among the eight topics highlighted in the report that would benefit from additional information and discussion are:

Border security and immigration enforcement funding. Debate over funding for U.S.- Mexico border security was at the heart of budget negotiations that forced the federal government into partial shutdown in late 2018 and early 2019. Yet a key question remains unanswered: What achievable definition of border security should the federal government be measured on? What spending is likely to generate the highest returns on investment going forward? And, among shifting flows and increasing numbers of arrivals, are actions aimed at deterring migration instead incentivizing crossings that are on the rise? These questions are significant, both as migration patterns at the Southwest border are changing rapidly and at a time the United States is spending 34 percent more on immigration enforcement than on all other principal federal criminal law enforcement agencies combined.

Interior enforcement. The administration greatly expanded the categories of noncitizens considered priorities for arrest and deportation from within the United States to virtually everyone who is present illegally. Arrests by U.S. Immigration and Customs Enforcement (ICE) jumped 46 percent from fiscal year (FY) 2016 to FY 2018, though still remained well below earlier peaks. Yet arrests of noncitizens without criminal convictions rose 426 percent during this period. Given the finite nature of enforcement resources, is there a public policy gain in generalized enforcement versus focusing resources on those with criminal records or who pose other public- safety or security threats?

High-skilled temporary immigration. The H-1B visa program is the main vehicle through which U.S. employers can sponsor skilled foreign workers for admission. Criticized for decades for displacement of U.S. workers and other reasons, the program has long been ripe for reform. Even as employers deemed dependent on H-1B workers have faced additional labor-protection requirements, they still pay their H-1B employees less than do employers less dependent on H-1B workers, and employ fewer workers with advanced degrees. What further reforms would address concerns about the replacement of U.S. workers while still supplying a necessary workforce for employers? H-1B rejection rates have been rising, from 6.1 percent in FY 2016 to 15.5 percent in FY 2018.

Bars to adjustment of status. Most unauthorized immigrants eligible to be sponsored for
a green card by a family member or employer are unable to do so because they would need
to leave the United States to apply, triggering a three- or ten-year bar on their re-entry under terms of a 1996 law. While it is difficult to estimate precisely how many of the country’s 11.3 million unauthorized immigrants would be affected by the bars, the Migration Policy Institute (MPI) estimates that roughly 1.2 million spouses of U.S. citizens or green-card holders are effectively blocked by the ten-year bar from obtaining a green card. With nearly two-thirds of the unauthorized population having lived in the United States a decade or more, should Congress revisit the bars to re-entry to provide a path to legal status for those who are married to U.S. citizens or would otherwise be eligible for legal permanent residence?

As immigration will undoubtedly remain at the forefront of policy debates and political considerations over the next two years, particularly with a national election nearing in 2020, Congress, as with the courts and the executive branch, is likely to play a prominent role in this area. Determining immigration policy and practices that advance American values and serve U.S. national interests will require significant attention, informed debate, and careful examination at all levels and branches of federal government activity.