Category: Immigration

Background

Beginning in May 2018, President Trump enacted an immigration strategy referred to as “Zero Tolerance Policy,” referring to the prevention of illegal border crossings at the U.S.-Mexico border. The new policy required Department of Homeland Security (DHS) officials to prosecute individuals illegally crossing the border as well as those who came to the border in request for asylum. What resulted was the separation and detention of several thousand migrant children at the border and the deportation of all adult migrants including the parents and guardians of the children. This forced separation has been widely criticized by policymakers, other nations, and humanitarian organizations.

What is the Family Reunification Task Force?

About 2,000 children were reunited with their families before the end of President Trump’s term in office. However, given varied access to services like internet and phone use and the limited capacity of nonprofit organizations, several thousand children remained at the U.S.-Mexico border by 2021. As a result, President Biden announced “The President’s Interagency Task Force on the Reunification of Families.” This task force would utilize the combined efforts of the Department of Homeland Security, the Department of State, the Department of Health and Human Services, and the Department of Justice, as well as migrant rights organizations.

The President’s Task Force created a website allowing deported parents to contact the federal government to be reunited with their children. The website, Together.gov, allows parents to register for support services that may grant parents the ability to travel to the United States for a maximum of 3 years to reunite with their lost children under “humanitarian parole” status. A concern for migrants may be that they do not wish to provide their personal information to a U.S. government website given that the Together.gov site states that, “…information may be shared with national security and law enforcement agencies, including ICE and Customs and Border Protection…”. Many see this as a deterrent for families who may wish to reunite with their children but do not want their information to be on file with Immigration and Customs Enforcement (ICE). 

The Family Reunification Task Force publishes progress reports to update the public. According to the May 2022 report, the Task Force has registered 1,344 families for special services. Among these, 260 families have been reunified, and 329 are receiving assistance from the government. The Task Force is projected to end in September 2022. It is unclear whether the organization will be able to reunify all the families separated by the Zero Tolerance Policy by this deadline. 

Critiques of the Task Force

Several Republican Congresspeople have made remarks about Biden’s handling of the Family Reunification process. Senator Ted Cruz (R-TX) argued that allowing guardians to obtain lawful presence in the United States to reunite with their children goes against the typical practice for those previously expelled for illegal border crossing. Specifically, Cruz took issue with the phrasing “household members” by arguing it suggests non-family members may be admitted into the U.S. under Biden’s Task Force. Cruz’s stance echoes several other politicians’ views that the Department of Homeland Security should not make exceptions to laws that prevent illegal migrants from reentering the nation for 5 to 20 years following their deportation. 

Border patrol and DHS officials have also been critical of the Task Force. In an interview with NPR, National Homeland Security Secretary Alejandro Mayorkas noted that many border personnel feel the plan does not do enough to support the children still detained at the border and the staff in charge of their well-being. Mayorkas relays the sentiment that the Department of Homeland Security needs more and better equipment and increased personnel to care for these children. Many border security agents have also complained of the Biden administration’s reluctance to increase border security which makes their work increasingly difficult.

Background

Originally introduced to Congress in 2001, the DREAM or Development Relief and Education for Minors Act would have guaranteed citizenship to unauthorized immigrants who arrived in the U.S. as children. Although 11 versions of the bill have been introduced to Congress over the past 20 years, the DREAM act has never been signed into law. However, the bill has given rise to the concept of Dreamers as a niche migrant population composed of primarily young people and students. When Congress did not pass the DREAM act in 2012, former President Obama issued an executive order to establish Deferred Action for Childhood Arrivals or DACA. While DACA defers the deportation of eligible immigrant youth who came to the U.S. as children, it does not grant citizenship.  

What is DACA? 

DACA-eligible individuals can apply for renewable two-year work permits and receive a social security number as well as state-issued documents like a driver’s license. Current estimates suggest that DACA stops approximately 800,000 young people from being deported, however, not all unauthorized young immigrants are eligible. DACA protections only extend to individuals who were under the age of 31 as of June 15, 2012, and entered the U.S. before their 16th birthday. Applicants must either be currently enrolled or graduated from high school, have a GED, or be honorably discharged from the U.S. military. 

DACA Uncertain Legal History 

Former President Trump campaigned to rescind DACA, and in September of 2017, he formally announced his intention to terminate the ​​program. However, federal courts ruled against this decision because stating that ending DACA was a violation of the Administrative Procedure Act. As a result, the Department of Homeland Security continued to accept new applications. To preserve programs like DACA and Dreamer efforts, President Biden instructed DHS to fortify DACA when he took office. A few months later, a 2021 court ruling in Texas found the program unlawful, casting doubts on its future. While the Fifth Circuit Court of Appeals hears arguments, individuals already enrolled in DACA can continue to receive benefits, but the federal government is not currently granting applications for first-time applicants. 

Arguments Against DACA 

Some consider legislation like the DREAM Act and DACA to encourage illegal immigration, as they argue that these potential protections will incentivize families to enter the U.S. illegally to ensure their children are eligible for these programs. Proponents of this idea point to the millions of undocumented immigrants already living in the U.S. and an unprecedented spike in migration to the U.S. this past year in light of the COVID-19 pandemic and Biden’s pledges to advocate for Dreamers. In response to this influx, some have proposed harsher restrictions on pathways to citizenship, such as limitations on student Visas and work permits. Proposed legislation such as the Student Visa Security Act, would require more DHS oversight of student visas, in particular, making it harder for non-citizens to enter the country to study. Additionally, many believe that DACA’s enactment is indicative of a larger pattern of executive overreach, as the Obama-era executive action bypassed the legislature’s decision to halt the DREAM Act. 

Arguments for DACA 

Unauthorized students arguably stand the most to gain through DACA’s protections, as the program expands access to all levels of education for eligible non-citizens. When DACA-eligible individuals apply for two-year renewable work permits, they can also receive social security numbers. The Free Application for Federal Student Aid or FAFSA, and other financial aid documents require a social security number. This means DACA members can apply for federal financial aid and in some states, in-state tuition and education grants. Access to these resources makes higher education more accessible for unauthorized immigrants, and a 2020 study found that more than 45,000 undocumented students are enrolled in colleges or universities across the U.S., while 87% of DACA-eligible students are enrolled in undergraduate programs. 

Some researchers believe having access to these tertiary education financing options promotes engagement at all levels of education. A study comparing high school graduation and attendance rates for citizens and non-citizens before and after DACA’s enactment found that the program reduced this achievement gap between the two groups by 40%. Beyond education, DACA’s work permits enable recipients to legally find jobs in the United States. A survey found that after applying for DACA 60% of beneficiaries found a new job, and on average, their wages were 8.5% higher than before. 

Conclusion 

While the future of DACA is uncertain, Dreamer immigrants are indicative of larger debates and value judgments surrounding immigration in the United States. As the U.S. recovers from the pandemic, immigration policy has returned to the forefront of the political landscape, particularly under the leadership of a President who has pledged to advocate for the citizenship of Dreamers in contrast to his predecessor. However, many Dreamers are still in legal limbo.

With the Collaborative Migration Management Strategy, the Biden Administration plans to improve the management of the U.S-Mexico border and asylum claims throughout Mexico and the Northern Triangle to alleviate current pressures on the U.S immigration system. The strategy was announced along with the Root Causes Strategy on July 29, 2021, and is part of Biden’s “Blueprint for a Fair, Orderly, and Humane Immigration System.”

Migration from Central America has risen substantially since 2010. From 2010 to 2019, the percentage of all asylum grants to nationals from Guatemala, El Salvador, and Honduras increased from 4 to 16%. Rising claims from the Northern Triangle region have contributed to large backlogs at the U.S-Mexico border. The Trump administration responded to this situation with asylum bans, metering, and the controversial “Remain in Mexico” program. Biden plans to take a different approach by using the Collaborative Migration Management Strategy to stabilize populations, expand access to international and local protection, expand labor migration programs, reintegrate returning migrants, create humane management at the border, strengthen messaging on migration, and expand lawful pathways for protection in the U.S.

The Biden Administration released an update on their efforts on April 20, 2022, stating they had helped the Mexican and Northern Triangle governments:

• build asylum systems
• offer funding to victims of trafficking
• provide reception services
• arrest human smugglers
• restart the Central American Minors program 

More recently, at the Summit of the Americas, the U.S and other countries committed to expanding legal pathways for migrants (especially Central Americans) and information sharing about transnational crime and human smuggling. These agreements reflect plans in the Collaborative Migration Management Strategy, signaling significant changes in transnational migration governance. A month later, in July of 2022, President Biden and Mexican President Andres Manuel López Obrador also discussed migration. López Obrador expressed his support for more temporary work visas. The most popular labor programs for migrants from Mexico and the Northern Triangle are the H-2A (agricultural workers) and H-2B (non-agricultural workers). In 2020, about 90% of H-2A and 70% of H-2B visas went to Mexicans. Guatemalans received less than 2% of H-2As and 4% of H-2Bs, with smaller figures for Salvadorans and Hondurans. 

In Favor of the Collaborative Migrant Management Strategy

Supporters believe the policy change will improve protection pathways and prioritizes meaningful humanitarian assistance for asylum seekers and a safe border. Specifically, expanding in-region and international pathways to asylum is a major positive step for humane migration management. Supporters also see collaborative efforts between the U.S. and neighboring countries as necessary to managing migration to the U.S. Finally, they assert that these frameworks meet today’s challenges and will be well prepared for future ones.

In Opposition to the Collaborative Migrant Management Strategy

Critics on the left disagree with the administration’s dependence on the Mexican government to improve its asylum system for Central American migrants. They claim that it is unreliable, continuing to treat migrants as potential security threats, and unable to handle increasing claims. Instead, these critics recommend that the U.S. connect with Mexican NGOs and civil society organizations, who fill in for the government and know best what asylum seekers need. Others are against expanding temporary worker programs because of exploitation and abuse in these structures. For example, temporary work visas create an imbalance of power between migrant laborers and employers because workers’ employment is tied to a single employer. Therefore, critics on the left say a visa increase is ineffective in remedying Central American humanitarian crises because work conditions cannot be improved under the same system. 

Critics on the right argue that the policy is ineffective in preventing human smuggling and decreasing immigration flows. Critics claim that admitting unaccompanied minors and family units with asylum programs is counterintuitive to preventing smuggling and trafficking. They say that the government would spend less money on investigations and prosecutions if they resumed the “Remain in Mexico” program. Other conservative critics believe that migration resource centers (part of the plan to expand asylum in Mexico and Central America) would only attract more immigrants, worsening the current border situation. Specifically, amnesty would encourage irregular immigration. 

After the Trump presidency, Biden’s Collaborative Migration Management Strategy is a shift in position on asylum and focuses on increasing access to immigration. The debate is over whether creating more pathways for migrants will alleviate pressures on the U.S-Mexico border or worsen them.

What is Special Immigrant Juvenile Visa Status?

Special Immigrant Juvenile Status (SIJS) is a program created by the Immigration Act of 1990, in order to address a growing issue of vulnerable immigrant children that lacked appropriate parental caretakers in the United States. Social service systems and juvenile courts could remove the children from harmful caregivers, enter them in the foster care system, and facilitate adoption. However, upon turning eighteen, these children would run the risk of being deported, and there was no clear way for these children to attain legal status.

A Special Immigrant Juvenile (SIJ) as defined by the Immigration Act is an immigrant that has been declared dependent on a state court and eligible for foster-care, and for whom it has been found in “administrative or judicial proceedings” that it is not in the child’s best interests to return to their home country. A clause was included which states that the parent of a child granted SIJS cannot qualify in order to prevent children being sent to the United States to petition for an abusive parent’s legal status. 

The 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 expanded eligibility for SIJS, from those declared dependent on the state to also include those committed to the custody of an individual or entity appointed by a state or juvenile court. This allows juveniles that are granted a legal guardian to also apply for SIJS, not just those destined to enter the foster care system.

Who currently qualifies for SIJS?

In 2022, to qualify for Special Immigrant Juvenile Status (SIJS), an immigrant must be:

1. A child that cannot be reunited with one or more parents due to abandonment, abuse, or neglect. 
2. Under 21 years old, 
3. Unmarried, and 
4. Declared a dependent by a juvenile court. 

What makes SIJS different from other visa programs?

SIJS is unique among immigration programs in that, in addition to involving the federal immigration court system, it also involves state juvenile court, which is defined by the USCIS as “a court in the United States that has jurisdiction under state law to make judicial determinations about the dependency and/or custody and care of juveniles.” This court can fall under a number of names, varying by state, but the involvement of this court is necessary to filing a valid SIJS application. 

How does one apply for Special Immigrant Juvenile Status?

To file an application for SIJS, the applicant must provide the following to the United States Citizenship and Immigration Service (USCIS):

1. A completed form I-360, Petition for Amerasian, Widow(er), or Special Immigrant
2. Evidence of the applicant’s age to prove they are a minor, which in immigration court is anyone under 21 years old. Possible documents include a birth certificate, passport, or ID issued by a foreign government.
3. A valid order from a juvenile state court

In order to receive the court order, there are a few different processes the applicant may have to go through. Generally, the guardian of the applicant files a case in whichever state juvenile court has jurisdiction, which varies by state and locality. This step generally requires a lawyer, who may be appointed by the state depending on the specifics of the case. 

The juvenile court must make specific findings for the juvenile to qualify under USCIS qualifications. The most important finding is that reunification with one or more parents is impossible due to abandonment, abuse, neglect, or similar reasons found in state law. Notably, the determination is made based on state law, not federal law, meaning that each state can have different criteria for what qualifies as abandonment, abuse, and neglect. The rules vary by state, with some states requiring that the court order be procured before the juvenile turns 18 or 19, while others allow up to 21 years old like the USCIS. Some states have made different decisions, stating that both parents of a juvenile must be responsible for the abuse, abandonment, or neglect, despite the 2008 TVPRA changing the requirement to one parent. 

What are the benefits of SIJS status?

SIJS waives some criteria required by other programs that would render applicants inadmissible. This includes unlawful entry, which is entering the United States in violation of immigration laws, usually by crossing the border in a remote area without inspection, entering with false documents like a fake passport, or entering the United States with a visa the applicant is ineligible for but provided false information in order to receive. SIJS also waives working without authorization, being a public charge, and some other immigration violations.

Given that those applying for SIJS are usually in removal proceedings, SIJS’s protection from deportation is one of the biggest benefits of the program. The biggest long-term benefit, however, may be that those that are granted SIJS status can apply for permanent residency, commonly known as a “green card.” The green card process can be long, especially for SIJS applicants, as they have to wait for their turn at a limited number of visas, but this status is an important foot in the door to eventually acquiring legal residency.

With current Biden administration policies, an individual granted SIJS but not yet eligible for a green card can still receive deferred action, which means that prosecutors will not seek removal for a certain period of time, as well as work permits, allowing SIJS holders to work legally in the United States. These are two major benefits as they enable an immigrant to earn money and stay in the United States without violating immigration laws.

What are the criticisms of SIJS status?

The current implementation of the SIJS program provides relatively broad privileges, including deferred action and work authorization, as well as certain provisions in the application process, which may result in negative unintended consequences. One of these consequences is that the USCIS is likely to receive many applications with illegitimate or exaggerated information, in order to pursue an easier path to work authorization and deferred action. The quick pathway to a work permit could also lead to exploitation of the juveniles applying, as unaccompanied minors that receive SIJS could work to pay back those that may have smuggled them into the US.

Another criticism of SIJS as it stands is the variation that exists because of the involvement of state courts. The ABA criticized the variation among state courts, stating that the “disparate result amounts to impermissible immigration adjudication by state courts.” With the relatively open-ended findings the state courts must make, there is room for a lot of variation in judgements, making some immigrants unable to receive the same access to SIJS as immigrants in another state.

The Deferred Action for Childhood Arrivals Act, more commonly known as DACA, was introduced during the Obama administration to protect young undocumented immigrants that entered the U.S unlawfully with their parents. Often referred to as “Dreamers,” almost 800,000 of these young immigrants have lived in the United States since 2007. DACA provides temporary protection from deportation for two years, and it can be renewed for a fee of $495. DACA in its current form does not offer a path to citizenship, so Dreamers regularly renew their status.

Individuals that are eligible to apply for DACA must be under 31 years of age as of June 15, 2021; have been under the age of 16 when the individual came to the United States; continuously be in the United States from June 15, 2007; be in the United States without authorization; have not been convicted of a felony, and are currently in school or have obtained a GED.

DACA programs grant the status holder temporary protection from deportation for two years. They can apply for a driver’s license, the license however contains a mark to signify that this ID is not valid for federal purposes such as voting. DACA status holders can get a work permit, called an EAD permit, and unlike other work permits, this permit currency does not have a cap for individuals with DACA status. They pay state and federal income taxes. DACA status holders currently do not have a path to citizenship or permanent residency, cannot vote, and cannot receive federal benefits such as Social Security or food stamps. 

DACA Policies in the Past

DACA is an executive order that was implemented by the Obama administration in 2012. Critics of the policy called it “a misuse of presidential power,” as they believed that the order overrode existing immigration law. The Obama Administration then planned to expand the executive order to try to create Deferred Action for Parents of U.S Citizens and Lawful Permanent Residents (DAPA) but their actions were halted due to lawsuits from states including Texas. The Supreme Court’s decision in United States v. Texas was split and the expansion was halted. The Court did not rehear the case and lower courts sided with Texas, agreeing that the expansion overrode immigration laws that were already in place.

In 2017 the Trump Administration intended to phase out the DACA program over a six-month period, when the Justice Department would no longer accept renewal or new applications. However, three U.S district courts from California, New York, and the District of Columbia filed an injunction to halt the plan, based on the belief that terminating DACA was arbitrary and capricious. The Supreme Court sided with the states, ruling that the DACA program was able to stay due to the way the Trump administration had tried to end the program, but did not focus on the merit or the constitutionality of the program. 

The Biden Administration on DACA

Within the first 100 days in office, the Biden Administration signed an executive order to preserve DACA. The executive order stated that DACA recipients are protected from deportation and will remain eligible for work permits. 

The Biden Administration is also assigning more immigration officers to review the backlog of DACA applicants. 81,000 first-time DACA applications and 13,000 DACA renewal requests were filed following the executive order. As of June 2021, more than 33,000 first-time applicants had completed their biometrics and 11,000 applicants have already had appointments. More than 37,000 individuals were waiting to receive an appointment date. 

On January 20, 2021, the Biden administration announced the U.S Citizenship Act of 2021. The act would make 11 million undocumented individuals eligible for various legalization programs to lawfully reside in the U.S. It includes a pathway to lawful permanent residence for DACA recipients. If passed, the act would enable DACA recipients to apply for an adjustment of legal status.  

Arguments in Favor of Biden’s DACA Policy

Some praise DACA and Biden’s efforts to protect the policy, claiming that it protects young individuals and allows them to pursue their educational and professional career goals. Ted Mitchell, president of the American Council on Education, supports the policy because it gives young people the autonomy to make decisions regarding their education and involvement with serving in the military. A study conducted by Dartmouth University found that enacting DACA improved the attendance and graduation rates of undocumented youth by 40%. In addition, the study found that approximately 49,000 additional undocumented youth received a high school diploma due to DACA’s passage. Overall, DACA has shown to have a positive impact on educational outcomes among undocumented youth. 

A study by the American Action Forum looks at the impact that DACA recipients have on the United States economy. The study found that DACA recipients make positive economic contributions through their presence in the workforce. Over 380,000 DACA recipients are employed. 23% of all DACA workers are employed in the arts and food service industry, contributing an estimated 4 million dollars annually to the United States GDP. In total, employed DACA recipients contribute $41.7 billion annually to the United States GDP.

Arguments Against

Critics of DACA claim that expanding the program to include a pathway to lawful permanent residency rewards illegal immigrants. The Heritage Foundation, for example, thinks that the U.S should focus on immigration laws that prioritize Americans without risking the U.S’s national and economic security. They think that DACA and a possible expansion will result in higher rates of illegal immigration and diminish security at U.S borders which would affect American taxpayers negatively. For instance, the Heritage Foundation believes that undocumented immigrants are costing American taxpayers money through their use of public services such as the fire department, police department, highways, and parks.

Critics also claim that if DACA recipients receive amnesty from the Biden administration, they will take  employment opportunities away from native born U.S residents. A study by the General Accounting Office has shown that the large number of immigrant workforces would depress wages, or lower the wages for U.S-born workers. George J. Boras from Politico states in his article that wage trends have shown that a 10% increase in the number of workers for a certain job area will result in a wage decrease of 3%.

Lawful permanent residents (LPRs) must wait 5 years before they can enroll in federally funded programs such as the Children’s Health Insurance Program (CHIP), Medicaid, Medicare, Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI). The five-year waiting period begins when individuals receive their qualifying immigration status and not when they first enter the US. This five-year waiting period, also known as the Five Year Bar, was part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Qualified immigrants arriving in the US on or after enactment of PRWORA on August 22, 1996 may be ineligible for federal means-tested benefits for five years. Federal agencies clarified that the “federal means-tested public benefits” are Medicaid (except for emergency services), CHIP, TANF, SNAP, and SSI. 

Who is Impacted by the Five Year Bar?

PRWORA was created to limit welfare dependency by encouraging work and the maintenance of two-parent families. In 2019, 23 out of every 100 families with children living in poverty receive cash assistance through TANF. The law placed limitations on federal funding for benefits such as health coverage of immigrant families by creating 2 categories of immigrants that entered the US on or after August 22, 1996 called “Qualified Immigrants” and “Not Qualified Immigrants.” “Qualified Immigrants” can access federally funded programs if they meet the eligibility requirements but only after the five-year bar. Qualified Immigrants are ineligible for SNAP and SSI until they become a US citizen, which requires five years of residency. States have the control to determine their eligibility for TANF, Social Services Block Grant (SSBG), and Medicaid. Qualified Immigrants include:

• Lawful permanent residents, or LPRs (people with green cards)
• Refugees or people granted asylum 
• People granted parole by the U.S. Department of Homeland Security (DHS) for a period of at least one year
• Cuban and Haitian entrants
• Certain abused immigrants, including children and parents
• Certain survivors of trafficking 
• Certain individuals residing in the U.S. pursuant to a Compact of Free Association (COFA) (for Medicaid purposes only)

“Not Qualified Immigrants”—including undocumented immigrants and other noncitizens—are unable to access most federally funded programs regardless of their time of residency. Below are the individuals who are exempt from the Five Year Bar:

• Refugees and asylees
• Veterans including their spouses and unmarried dependent children
• LPRs who have worked at least 40 qualifying quarters according to the Social Security Administration (SSA)

Brief Background on Medicaid and CHIP

Medicaid is a federal and state funded insurance program that is offered to low-income individuals. Undocumented immigrants are not eligible to enroll in Medicaid or CHIP however PRWORA allows undocumented immigrants to receive emergency Medicaid. Medicaid also establishes minimum requirements for eligibility and benefits. However, states are allowed to extend coverage beyond minimum levels so Medicaid coverage varies from state to state.

 The Children’s Health Insurance Program (CHIP) was established in 1997 and offers low-cost health coverage for children in families whose household income is higher than the standard to qualify for Medicaid. CHIP covers children under the age of 19 and a very limited number of parents above the Medicaid eligibility requirements. The 2009 Children’s Health Insurance Program Reauthorization ACT (CHIPRA) was signed by President Obama which had a provision called the Immigrant Children’s Health Improvement Act (ICHIA). This provision gives states the option to provide Medicaid and CHIP to LPR children and pregnant women without a five-year waiting period. 18 states have eliminated the Five Year Bar for LPR pregnant women and children since January 2022. Access to coverage and health care services among immigrant children has improved substantially in states that have taken the CHIPRA option, and it was not associated with reductions in private coverage. At the end of 2012, 62% of immigrant children had health coverage through Medicaid or CHIP in states that took CHIPRA, compared to 21% of immigrant children covered in states that did not take up the option. 

Justifications for the Five Year Bar

Congress emphasized the principle of self-sufficiency as a basic principle of US immigration law and policy when creating PRWORA. The law was described as a “reassertion of America’s work ethic” by the U.S. Chamber of Commerce. The policy emphasized that immigrants who are entering the US should only rely on their own capabilities and the resources of their families, sponsors, and private organizations. The policy also encouraged immigrants living in the U.S. to “not depend on public resources to meet their needs” and that the “availability of public benefits [does] not constitute an incentive for immigration to the United States.” PRWORA restrictions on immigrant access to public benefits originated from concerns that welfare programs were enticing American citizens to move to states with more generous welfare benefits. Proponents supporting PRWORA believe that welfare programs offered by the US have become a “magnet” for immigrants. Changes in the accessibility of means-tested programs post-PRWORA affected low-skilled unmarried immigrant women the most, who were more likely to settle in states that restored benefits and had the highest probability of welfare use. PRWORA laid the foundation for further exclusions as several public benefit programs and systems were created since 1996 including CHIP by imposing the Five Year Bar and the Affordable Care Act (ACA) which excludes healthcare coverage towards undocumented immigrants. 

Arguments Against the Five Year Bar

Many argue that the Five Year Bar is a barrier to immigrant healthcare access. For example, the Five Year Bar impacts older immigrants who do not have access to health insurance through employment and may not be able to qualify for specific benefits such as SSI and Medicare. PRWORA, which expired in 2002, has caused a “chilling effect” in immigrant communities due to its eligibility restrictions. Many qualified immigrants, who are eligible to access public benefits since they do not have to wait 5 years, do not access the healthcare they need. For example, foreign born immigrants who are 65 and older reported more chronic diseases, reduced Activities of Daily Living, and poor mental health compared to US born older adults. Some states are eliminating the Five Year Bar. For example, Illinois is using state funds to cover Medicaid for low-income undocumented seniors. In addition, some states are considering lifting the Five Year Bar in hopes of better health outcomes, especially among pregnant women and children who are LPRs. Advocates of lifting the Five Year Bar in Georgia believe that doing so would provide health insurance to more children and increase access to prenatal care. 

Immigrants subject to the Five Year Bar have few options for health insurance. In 2020, among the nonelderly population ages 0-64, 26% of LPRs and 42% undocumented immigrants were uninsured compared to fewer than 1 in 10 citizens. Immigrant women in the US also continue to face challenges when obtaining affordable health coverage and care including sexual and reproductive health services. Immigrant women are likely to obtain limited available services such as from publicly funded family planning centers where 7 of 10 immigrant women reported a safety-net site as their usual source of medical care. 41% of immigrant women who obtained contraceptive care in the years 2006-2010 did so at safety-net family planning centers, compared to 25% of their U.S.-born counterparts. 

Another argument against the Five Year Bar is that it makes it difficult for immigrants to access healthcare due to the varying state-by-state policies. Differing state policies may result in varying population growth among states due to differences in health insurance coverage. States that offer more generous health insurance coverage may have an influx of immigrants they were not prepared for leading to a lack of resources. Many believe there should be national legislation on immigrant access to care rather than leaving the decision to states.

Should there be Reforms?

There are currently two proposed acts to address the Five Year Bar.

1. The Health Equity and Access under the Law for Immigrant Families Act of 2021 (HEAL Act) allows immigrants to participate in health care programs. The Bill would remove the Five Year Bar and ensure all individuals, including LPRs and the Deferred Action for Childhood Arrival (DACA) recipients, are eligible for federally funded healthcare programs. The legislation also mandates that DACA recipients are able to obtain premium-tax and cost sharing reductions in order to purchase care through the ACA.
2. The Lifting Immigrant Families Through Benefits Access Restoration Act of 2021 (LIFT the BAR Act), introduced by Representative Pramila Jayapal and Tony Cardenas, would restore access to public benefits such as SSI, TANF, SNAP, and Medicaid for LPRs, DACA recipients, individuals granted Special Immigrant Juvenile Status (SIJS), and other federally authorized non-citizens residing in the US. The Bill would also remove the Five Year Bar. Lastly, the Bill would consider all LPRs “qualified” immigrants for the purpose of federally funded benefit program eligibility.

Bill H.R. 1177, otherwise known as the United States Citizenship Act, was introduced by President Biden on the first day of his presidency in 2021. The bill, if passed, would amend the Immigration and Nationality Act enacted in 1952 and mark the first significant change in U.S. immigration policy in several decades. As it stands, H.R. 1177 was introduced to the House of Representatives but has not yet been voted on as of June 30, 2022. 

The U.S. Citizenship Act would change the way migrants and asylum seekers are received and treated upon arrival in the United States. The core aim of the act is to “provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system”. The proposed bill begins by changing the terminology to describe new arrivals in the U.S. from the former “alien” to the new term, “non-citizen. Many felt that the previous terms were dehumanizing to migrants. 

Earned Citizenship and DACA

Title I of H.R. 1177 offers non-citizens the opportunity to “earn” citizenship if they have a clear criminal record and pass a national security background check. This earned citizenship allows formerly illegal migrants to apply for work authorization and makes them eligible for coverage under the Affordable Care Act. Spouses and children are covered by their partner’s or parent’s citizenship application and are not required to apply for themselves, but must also pass both types of background checks. The earned citizenship must be renewed every six years. The act also allows those who entered the United States as children and received Deferred Action for Childhood Arrivals (DACA) status to obtain citizenship through a streamlined process. Activists have long pushed for permanent status for DACA recipients.

Addressing Root Causes of Migration

Title II of the U.S. Citizenship Act establishes a strategy for reform in Central America that aims to reduce the rate at which migrants appear at the southern border. By addressing prevalent issues cited by migrants as reasons for migration, such as sexual, gender-based, or domestic violence, extreme poverty, criminal violence, and corruption, the United States aims to aid in improving Central American livelihood to decrease the need to emigrate. To do so, the U.S. Citizenship Act would allocate $1 billion per year to a program entitled The U.S. Strategy for Engagement in Central America. However, concerns over the legitimacy and necessity of U.S. intervention in Central America have arisen.

Improving Border Infrastructure

H.R. 1177 would set a new precedent for the conditions and capabilities of the resources available to migrants at the border between the United States and Mexico. For example, H.R 1177 would include a wide range of facility updates that ensure arrivals at the border receive adequate medical care, clean water for drinking and bathing, proper nutrition, clothing, shelter (which includes appropriate sleeping accommodations for those held overnight), resources to practice one’s religion, and accessible information about migrants’ legal rights at the border. Proponents believe these protections would establish the United States as a more welcoming and secure destination for migrants and asylum-seekers compared to the former Immigration and Nationality Act. 

H.R. 1177 also seeks to address child welfare at the border. To ensure that children’s rights are protected at the border, the U.S. Citizenship Act requires that all Department of Homeland Security (DHS) personnel whose jobs require that they come into contact with children must complete child welfare  training. Additionally, the bill would create accessible systems to report cases of child abuse and neglect and would prohibit DHS personnel from separating children from their legal guardians. These provisions, if passed, would improve pre-existing protections of migrant children and families under U.S. law. Current protections include access to fair immigration proceedings, detention in the “most humane” conditions available, and the right to legal representation. These existing migrant protections do not prevent forced separation of children from their parents, and do not guarantee that children will be properly cared for and protected while in DHS custody. After the family separation scandal under the Trump Presidency, activists renewed calls for stronger protections for children in U.S. border facilities.

Strengthening Humanitarian Responses for Refugees

Subtitle B of H.R. 1177 establishes provisions to improve how immigrants and refugees are welcomed and aided upon arrival to the United States. This section of the U.S. Citizenship Act highlights an alliance between the Secretary of State and the United Nations High Commissioner for Refugees to increase the number of refugees that the U.S. can admit, as well as the quality of care taken to ensure their well being once in the country. 

Additionally, given lengthy waiting periods for those filing refugee claims worsened by the COVID-19 pandemic, Subtitle B creates provisions that aim to improve the process of applying for asylum and refugee status. These provisions include ensuring that all refugee-seekers receive information about their rights, due process and access to existing protections, proper screening and security measures, and required documentation to ensure freedom of movement and social services. Subtitle B also expands upon current temporary shelter networks for newly-admitted refugees, especially for migrants from vulnerable populations, including women and unaccompanied children. Proponents of H.R. 1177 have emphasized the importance of protecting refugees and vulnerable populations of migrants, and argue that the bill would greatly improve the United States’ asylum program and set newly-admitted migrants on track for prosperity in their new homes. 

Critiques of the Bill

Those against the passage of H.R. 1177 or some of its many changes to the U.S. Immigration and Nationality Act have several reasons for their opposition. Senator Tom Cotton (R-AR) argues that the legislation invites more illegal migrants at a time when public health concerns are at their highest. Senator Cotton states that the bill has “no regard for the health and security of Americans”. Several democratic politicians have also taken this view of H.R. 1177, with Representative Vicente Gonzalez (D-TX) stating “The way we’re doing it right now is catastrophic and is a recipe for disaster in the middle of a pandemic.” 

Others argue that strengthening the United States’ humanitarian response to illegal migrants is unnecessary, and that we should instead focus on increasing our border security to prevent migrants from entering the country in the first place. Several Senate Republicans feared that this act would “incentivize illegal immigration” that would spur an overwhelming influx of migrants across the U.S.-Mexico border.

“Public Charge” is defined as a ground of inadmissibility, or a reason why an individual may be denied a green card, visa, or entry to the US. A public charge is someone who lacks the resources or ability to take care of themselves. An individual who is likely to become a public charge is ineligible to become a legal permanent resident (LPR) which is also known as a green card holder. The rule only applies to individuals who are seeking to become an LPR. LPRs may be targeted to take a Public Charge test if they leave the country for more than 180 consecutive days. In rare cases, an immigrant, even if they are an LPR, may be subject to deportation if they become a public charge within 5 years after entering the US. The Public Charge Rule does not apply to every immigrant and has  the following exceptions: refugees, asylees, certain T and U nonimmigrant visa applicants including human trafficking, self-petitioners under the Violence Against Women Act

The Public Charge Rule was designed to identify individuals who cannot support themselves and depend on benefits that provide cash such as Supplemental Security Income (SSI), Temporary Assistance for Needy People (TANF), state or local general relief, and long term care at a nursing home paid by the government. The Public Charge Rule does not prevent immigrants from applying for assistance as the use of benefits will not automatically make an individual a public charge. Programs not included in the public charge test include:

• Medicaid programs 
• COVID-19 testing, treatment, vaccinations
• Nutrition programs such as SNAP and WIC
• Public housing and other housing assistance

Origins

The Public Charge Rule finds its roots in poor laws which established governmental authority to provide aid to the poor. The laws became prominent during the 19th century where the US experienced an influx of immigrants from southern and eastern Europe. The poor laws established the number of years individuals must have resided in a town before they became eligible for public aid, and required local governments to provide the basic needs of residents who were unable to provide for themselves. Government officials prohibited dependent individuals, or those who were likely to become dependent, from residing in the jurisdiction they had not already established residency at the time they were impoverished. These poor laws later transformed into state immigration laws governing the admission and removal of non-citizens. Supporters were concerned with individuals who would become a burden to the community by depending on public relief so states sought to protect themselves. For example, anti-Irish sentiment led to an 1837 law in Massachusetts which authorized the exclusion of immigrants who had been, “impoverished in any other country, or who suffered from health conditions that would prevent them from supporting themselves.” 

The Immigration Act of 1882, the first act to regulate immigration at the federal level, allowed the government to prevent any individual “unable to take care of himself or herself without becoming a public charge” from entering the country. The act later legalized the deportation of any individual who was likely to become a public charge within a year. However, it did not define how a public charge should be identified, which allowed immigrant officials to determine who could enter the US and exclude those who were likely considered to become a public charge.

In 1999, the Department of Justice passed the Field Guidance on Deportability and Inadmissibility on Public Charge Grounds which clarified the definition of the public charge rule. Under this Guidance, a public charge is a person who will become dependent on the federal government for cash, income maintenance, or institutionalization for long-term care at the government expense. The guidance emphasized that immigrant officers should not place any weight on the receipt of non-cash public benefits, besides institutionalization, when determining noncitizens who want to enter the US or their LPR status.

The Trump Administration redefined the Public Charge Rule, which went into effect on February 24th, 2020, as a non-citizen who receives one or more public benefits for more than 1 year within any 3 year period. The Administration expanded the types of government benefits that could disqualify immigrants from obtaining green cards to include non-cash benefits such as Medicaid, public housing assistance, and SNAP. In addition, the Trump Administration relied on the “totality of circumstances” test to predict whether a person will become a public charge in the future based on their age, health, family status, income and resources, skills, and education. The rule also explains how the Department of Homeland Security (DHS) will interpret the minimum statutory factors for determining whether an individual is likely to become a public charge by considering a list of negative and positive factors. It directs the DHS and immigration officers to consider these factors in the totality of the individual’s circumstances. For example, a characteristic that is considered a negative factor that increases the likelihood of someone becoming a public charge is having income below 125% of the federal poverty level which is $28,787 for a family of 3 as of 2022. The DHS acknowledges that one likely outcome of this change is that some individuals who may have been eligible to immigrate under the 1999 Interim Field Guidance will now be deemed inadmissible. The 1999 Interim Field Guidance did not clarify how to evaluate statutory factors, like age and health. The totality of circumstances test provides the legal standards and factors which individuals must meet to demonstrate they are not likely in the future to become a public charge. 

The Biden Administration withdrew the 2019 Public Charge Rule in March 2021, causing the US Citizenship and Immigration and Citizenship Services (USCIS) to stop applying the rule to all pending applications and petitions. However, the Biden Administration proposed a new public charge rule which would largely codify the 1999 field guidance. The proposed rule would drop the Supplemental Nutrition Assistance Program (SNAP), the Children’s Health Insurance Program (CHIP), and pandemic assistance from those programs that would affect a public charge determination. 

Support for the Public Charge Rule

Advocates for the Public Charge Rule tend to embrace two core beliefs: self-reliance is a fundamental American value, and immigration should benefit American citizens.

• Self-reliance: many believe that hard work and self-reliance lay at the core of the American ethos. A common narrative in the US discusses immigrants entering the country with limited means and working their way towards financial stability. For this reason, many people (including both those who want to severely restrict immigration and those who want to increase it) support the idea that immigrants should not immediately rely on government services. Forced migrants (refugees, asylum seekers, etc.) are not included under this policy, so the impacted populations are generally those applying to enter the country to work or join family members.
• Benefitting Americans: a core dispute in immigration policy is how to balance benefits to American citizens and to immigrants. For example, the process to receive a work visa can be onerous and challenging, because there are concerns that immigrants could displace US workers and drive down wages. Some believe that immigration policies should prioritize adding value for current citizens, by supplying a specific, needed skill set or by investing in US firms. Those who want to prioritize benefits to US citizens tend to support the Public Charge Rule, and believe that potential immigrants should receive social services in their home countries, rather than use resources funded by US taxpayers.

Critiques of the Public Charge Rule

One argument in opposition to the Public Charge Rule is its “chilling effects” in reducing immigrants’ use of safety programs and public benefits especially during the Trump administration in 2019. Though the rule did not go into effect until February 2020, many immigrant families avoided programs specified in the rule as well as other public programs before the rule was implemented. For example in 2019, 1 in 4 low-income immigrant adults in California  reported that they avoided public programs like Medicaid or nutrition assistance programs due to the belief that participating in such programs would harm their immigration status or that of a family member. The researchers also found that 37% of the immigrants who reported avoiding public programs in the past year were uninsured, and 54% of those who avoided public programs in the past year were food insecure. 

Reduced participation in nutrition programs such as SNAP could lead to worse health outcomes if families experiencing food insecurity do not use food assistance. According to the 2019 California Health Interview Survey (CHIS), the percentage of immigrants who reported delays in medical care, delays in getting prescription medication, and not receiving needed mental health treatment was twice as high among those who had avoided public programs in the past year as among those who had not. The Public Charge Rule has the potential to influence the health of millions of immigrants and their dependents by decreasing the use of health services and worsening health disparities. Lower rates of insurance coverage would reduce the use of prenatal and postnatal care and cause higher rates of low birth weight, infant mortality, and maternal morbidity. The effect of losses in insurance coverage on morbidity and mortality among both children and adults would also increase the poverty rate among households headed by noncitizen immigrants due to reductions in the use of tax credits and housing energy assistance.  

Many immigrant families, who are not subject to the rule, also avoided medical care for fear of being deemed a public charge despite formal clarification by the United States Citizenship and Immigration Services announcing that COVID-19 testing and treatment are not applicable to the rule. For instance, immigrant-serving organizations reported that 37% of families avoided public programs like the Pandemic EBT, a COVID-19 relief program designed to feed children who were receiving free or reduced priced meals at school. The Public Charge Rule has been critiqued to create misinformation and confusion:

•  23% of adults in immigrant families know that the rule does not apply to citizenship applications.
• 19% of adults knew children’s enrollment in Medicaid will not be considered in their parents’ public charge determinations.

Immigrants are afraid to access COVID-19 treatment even if they fall ill due to public charge concerns. Among undocumented individuals in Massachusetts households, 18% of survey respondents reported fear of being labeled a public charge, and 13% fear that their information would be shared with immigration agents. Thus, many argue that there should be more resources and outreach programs to address the misinformation that the rule has created among immigrant communities.

Moving Forward

Multiple states have started to implement education and outreach programs to clarify any misinformation of the Public Charge Rule. Colorado, Kentucky, and Washington have information available on their website about changes to the Public Charge Rule to reassure individuals that public benefits are safe. Oregon and DC have included public charge FAQs in multiple languages on their websites. Having clear information on the Public Charge Rule available and accessible on states’ websites could ensure that eligible immigrants are receiving necessary public benefits.

As of June 2022, the Supreme Court dismissed Arizona and other states case claiming states have the right to defend the Trump-era public charge rule after the Biden Administration refused to revive the policy. The states argued that the federal government violated the Administrative Procedure Act by dropping the rule without consenting to public hearings. Supporters of the Trump-era public charge rule, such as Arizona Attorney General Mark Brnovich, have vowed to continue to push against the Biden Administration’s decisions regarding the Public Charge Rule. However, the Supreme Court dismissed the case which left the states no legal ability to defend the Trump-era public charge rule.  

Introduction

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted in 1996 by President Clinton. The policy revised the former Immigration and Nationality Acts of 1952 and 1965 by reconstructing exclusion and deportation proceedings for immigrants migrating to America and immigrants already residing in America. Exclusion proceedings are hearings in which an immigrant must defend their intentions for immigrating to America. Deportation proceedings are hearings held for immigrants who have committed actions that deem them deportable from the country, such as unlawful entry, criminal convictions and fraud. With IIRIRA, exclusion proceedings and deportation proceedings were combined into a new proceeding: removal proceedings.

Process of Removal Hearings

Removal hearings, more commonly known as deportation hearings, are held in front of a court judge. The judge conducts the proceedings that establish whether an immigrant will be removed from the country, commonly known as deportation. The removal proceeding begins with a notice to appear (NTA) sent to the noncitizen, which includes the individual’s date of entry into the United States and original country of citizenship, as well as charge of removability (the reasoning as to why the immigrant is being called to court). It also includes the date of the noncitizens master calendar hearing.

In the master calendar hearing, a judge does an overview of the charge of removability which is used to determine whether the non-citizen has a realistic case against removal. The judge may either:

1. order the deportation of a noncitizen if they deem there is a lack of basis for relief
2. move onto the next step of the removal process, which is called the individual hearing

Under IIRIRA, Non-citizens are allowed to have an attorney represent them during the master calendar hearing and they are not guaranteed counsel if they cannot afford one.

In the individual hearing, a non-citizen has the opportunity to defend themselves against their charge of removability in front of the judge. The case against the non-citizen is presented by a government official. The individual hearing includes a series of cross-examinations and testimonies. The immigration judge may issue subpoenas to request the presence of witnesses and evidence. The judge then renders a verdict on whether the non-citizen is deported.

Reasoning for Enacting IIRIRA

In general, the the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 strengthened previous American immigration policy by 

1. expanding the grounds for deportation
2. placing an emphasis on the deportation of illegal immigrants

Then-president Clinton justified the IIRIRA by citing the 1993 World Trade Center Bombing perpetrated by foreign terrorists. Thus, IIRIRA was signed as a measure to prevent people migrating to the United States with ill intentions, and deporting ill-intended immigrants residing in America.

Canceling Removal Hearings

Prior to the enacting of IIRIRA, aliens were allowed to obtain a “suspension of deportation”, or an opportunity to prevent their deportation. However, the suspension of deportation did not distinguish between “permanent residents” and “nonpermanent residents,” which allowed for immigrants of all citizenship statuses to appeal their removal hearings. Suspensions of deportation were replaced by cancellations of removals. After 1996, permanent and nonpermanent residents used different processes to cancel a removal.

Permanent residents, or documented immigrants, can request to cancel their removal if they:

1. have resided lawfully in the United States for at least 5 years
2. have resided in the United States for at least 7 years after migration
3. have not been convicted of any aggravated felonies

Nonpermanent residents, or undocumented immigrants, can request to cancel their removal if they:

1. have resided in the United States for at least 10 years
2. have shown “good moral character”
3. have not been convicted of any aggravated felonies
4. prove their deportation would be a “exceptional and extremely unusual hardship” to any citizen family members they may have (parent, spouse, or children)

Immigration judges are limited to canceling the removal of 4,000 undocumented immigrants each year. That means, for example, out of the 60,588 undocumented immigrants that applied for cancellations during the Trump administration, policy allowed for only 4,000 of these applicants to receive cancellations. The “cap” on cancellations, as well as a general strengthening of immigration policy due to IIRIRA directly impacted deportation numbers—data collected shows that the number of removals increased 151% from 1996 to 1998—from 69,680 immigrants (documented and undocumented) to 174,813.

Arguments in Favor of IIRIRA

Proponents of IIRIRA argue that the legislation prevents illegal immigration and protects legal immigrants. The policy expanded border control by authorizing 5,000 new border patrol agents by 2001 and 300 additional immigration investigators focused on ending illegal immigration. The grounds for deportation were also expanded. Under IIRIRA, the term “aggravated felony” included any crime with a punishment of a year or longer (as opposed to the previous five year punishment or longer). Data collected by the Pew Research Center concludes that there was an increase of deportations following the 1996 policy.

Proponents also argue the removal process streamlined the deportation, saving time and resources. Previously, the deportation process was dependent on every individual immigrant’s circumstances. Post-IIRIRA, all immigrants—those applying to immigrate, those living in America, and those who immigrated illegally—are all subject to the same removal proceedings. 

Arguments Against IIRIRA

Many believe that IIRIRA undermines the due process clause due to the expansion of deportable offenses that criminalize immigrants. For example, IIRIRA expanded the definition of “aggravated felony”, encompassing crimes that have a sentence of at least a year. This leads to documented immigrants who plead guilty to minor crimes being labeled as aggravated felons and deported. 

Additionally, some contend that the policy made it difficult for noncitizens to become naturalized. After IIRIRA, an undocumented immigrant could no longer directly apply for citizenship.