The second in a series in which I try to pursue adequately all the right threads.
Lawful Permanent Residency
The United States Citizenship and Immigration Services (USCIS) is an agency of the Department of Homeland Security. USCIS administers the process of granting lawful permanent residency — getting a “green card” — to foreign nationals.
The process requires both an application by the individual and a petition by a sponsor in the applicant’s behalf. USCIS receives around 6 million applications yearly. In fiscal year 2022, USCIS issued 1.02 million green cards, down from 740,000 in 2021, The 2022 number of green cards approximates the pre-pandemic 2019 granting of 1.03 million. The all-time high number of green cards issued occurred in 1991 when 1.8 million were issued.
With a green card, a foreign national can live and work in the United States. It does not entitle the holder to vote in national elections. After a period of at least three years, a green card holder can apply to become a naturalized citizen.
Most green cards (60%) are issued for family reunification — to reunite spouses, parents, unmarried children, and siblings. Widows and widowers of a green card holder can also apply for a green card.
The next largest category (25%) is employment. In employment cases, the petitioner is almost always an employer. For applicants there are several sub-categories:
EB-1: Managers, executives, professors, researchers of exceptional ability.
EB-2: Open positions that require advanced degrees, or at least a bachelor’s degree and five years of work experience. Such as a physician serving an underserved part of the nation.
EB-3: Professional positions that require a least a bachelor’s degree or its equivalent, skilled positions not seasonal or temporary, unskilled positions that require less than two-years of training.
EB-4: Religious workers and ministers, media professionals. Iraqi and Afghan nationals who have served the U.S. government in a specific capacity.
EB-5: Foreign nationals who will invest at least $1 million in an area that will create at least 10 new full-time jobs for workers in the U.S.
An annual diversity lottery for 50,000 green cards benefits persons from nations with historically low levels of immigration to the United States.
USCIS also issues humanitarian green cards to foreign nationals seeking refugee or asylum status or are victims of abuse, crime, or human-trafficking.
Refugees and Asylum Seekers
A refugee, as defined in Title 8 of our United States Code, is a foreign national who is located outside the United States, is of special humanitarian concern to the United States, has been persecuted, or in fear of persecution, because of race, religion, nationality, political opinion, or membership in a particular social group, and is otherwise admissible to the United States.
Refugee status does not include anyone who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”
The law does makes provision to provide refugee status to “any person forced to abort a pregnancy or been forced to undergo involuntary sterilization” or has “a well-grounded fear” of persecution for refusal or failure to undergo such a procedure.
Asylum is protection available to people who meet the status of refugees, are already in the United States, and are seeking admission at a port of entry.
Refugee status generally begins with the agency of the United Nations High Commissioner for Refugees (UNHCR) which recommends refugees to the State Department. UNHCR recognizes 89 million persons throughout the world as refugees displaced from their home country. About 1% of these persons are regarded by UNHCR as facing compelling persecution and having no other durable solution except refuge in yet another place. Recommendation is from this 1%.
The State Department identifies, from among those recommended by UNHCR, the refugee groups, or persons within those groups, who are of special concern to the United States. Parents, spouses, and unmarried children under 21-years-of-age of refugees already in the U.S. also receive special consideration,
The State Department’s Bureau of Population, Refugees, and Migration (PRM) is the agency of contact with UNHCR and coordinates the processes, including cooperation with non-governmental organizations, until a refugee is resettled.
The current refugee-processing structure, known as the United States Refugee Admissions Program (USRAP), was created by the Refugee Act of 1980, signed into law by Jimmy Carter. Annual numerical ceilings for refugees are proposed by the president and require congressional approval.
Recent History
Until recently, the United States was the world’s top country for refugee admissions, taking in hundreds of thousands of Europeans displaced by World War Two, and during the Cold War, persons fleeing communist regimes in Europe and Asia. Since 1980, the United States has admitted more than 3 million refugees. Immediately after the 1980 Refugee Act, more than the 200,000 refugees — mostly from Southeast Asia — came to our country, the highest annual total of refugees in our history.
In the aftermath of the 9/11 terrorist attacks, President George W. Bush suspended refugee admissions for several months. From 2001 to 2015, refugee ceilings were between 70,000-80,000 annually, though both the Bush and Obama administrations regularly admitted fewer refugees than the ceilings allowed.
President Trump saw USRAP as a security threat and severely reduced the ceilings during his administration. He set the ceiling to an all-time low of 15,000 for fiscal year 2021. President Biden reversed that cap to 62,500 when he took office. He raised the cap to 125,000 for both FY 2022 and 2023, with the majority of admissions slotted for Africa and South Asia. The Biden administration created a Welcome Corps program which facilitates groups of citizens to sponsor and support refugees in cooperation with non-profit organizations. Even so. actual refugee admissions have remained well below the Biden administration ceilings.
(By the way, in fiscal year 2022, of the 25,465 refugees admitted to the United States, only 1,618 (6%) came from Afghanistan. 7,810 (31%) came from the Democratic Republic of the Congo. 4,556 (18%) from Syria. 2,156 (8%) from Myanmar. 1,669 (6%) from Sudan.)
During the pandemic, both the Trump and Biden administrations used a public-health provision contained in Title 42 of the federal code to turn away migrants from the border without further legal action. When the pandemic was declared at an end in May of this year, a migrant upon arriving on our border, could, once again, fill out form I-589, Application for Asylum and Withholding of Removal. Migrants arrested for entering the country illegally, at least until recently, have a right to apply for asylum.
The Biden administration, in February 2021, ended the Trump administration’s Migrant Protection Protocol (“Remain in Mexico”) which required migrants to remain in Mexico while their cases were processed in U.S. immigration courts. To reduce the volume of expected asylum applicants when the Title 42 restriction ended, the Biden administration implemented a “Circumvention of Lawful Pathways Rule.” Under this rule, Customs and Border Protection (CBP) agents can deny asylum application to migrants, not from Mexico, who arrive at the border without first having applied for, and been denied, asylum in a third country along the way, or did not use a specified phone ap to schedule an appointment at a port of entry.
The Circumvention of Lawful Pathways Rules remains in effect while it is under review in federal court. Even so, the number of migrants crossing the southern border is increasing. In October, CBP recorded 241,000 encounters on the border in which a migrant was detained, deemed inadmissible, or expelled.
Much of the increase is due to a growing number of persons fleeing authoritarian regimes in Venezuela, Cuba, and Nicaragua — making up almost a quarter of all border encounters in fiscal year 2022. Migration from Venezuela, Cuba, and Nicaragua now exceeds migration from the “triangle” of Guatemala, Honduras, and El Salvador.
The number of asylum seekers from all nations has severely strained the U.S. immigration system. The current backlog is 2.6 million cases and rising — with only 700 immigration judges to hear the cases.
An asylum applicant is first heard by a trained asylum officer who evaluates the interview, application, and any accompanying documentation to determine the reasonable likelihood of meeting the asylum requirements. If the preliminary meeting goes against the applicant, the applicant can appeal to the immigration court. The applicant can remain in the country pending the appeal. Overall, asylum applications are denied by immigration judges in 60% of cases. The chance for a successful outcome for the applicant, however, increases fivefold when the applicant is represented by an attorney — including during the initial interview.
If 150 days lapse before his or her case is heard (the current waiting time is about 3 years), an asylum applicant can apply for an Employment Authorization Document (EAD), so that the applicant can legally work. (During the Trump administration, it was 365 days before an applicant could apply for an EAD.)
However, an asylum petitioner will not receive an EAD if their initial application was rejected, if the initial application was made after the person had already been in the United States for more than a year, been convicted of a serious non-political crime outside the U.S., or convicted of an aggravated felony in the U.S.
Temporary Protected Status (TPS)
Since 1990, temporary protected status has allowed migrants from countries with unsafe conditions to reside, travel, and work legally in the United States. Unsafe conditions include armed conflict, environmental disaster, or other extraordinary, including economic, conditions. Today more than 610,000 persons have temporary protected status.
The Trump administration sought to limit TPS by revoking the status for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal — but was blocked in federal court. The Biden administration has expanded TPS, especially for Afghans and Ukrainians. Persons in TPS do not have lawful permanent residency. TPS allows migrants to remain for 18 months, a time frame which the Secretary of Homeland Security can renew for a country indefinitely. El Salvador, Honduras, Nicaragua, Somalia, and Sudan have been so designated for more than 20 years. TPS is not a direct path to citizenship. If a country loses its TPS designation, migrants from that country would revert to their previous immigration status — including that of being undocumented.
There are 16 TDS nations. 95% of TPS holders are from Central America, including Haiti. Haiti is the poorest nation in the western hemisphere. The World Bank estimates unemployment there as 15.7%. Haitian TPS migrants in the United States send back home what amounts to 24% of Haiti’s gross domestic product.
In September, Alejandro Mayorkas, Secretary of Homeland Security, redesignated and extended TPS for Venezuela. This means 470,000 Venezuelan migrants who arrived in the United States before August 1 may be eligible to live and work in the United States without deportation, augmenting 240,000 Venezuelan migrants already receiving TPS.
The number of Venezuelan refugees exceeds 7.7 million — in other words, one-quarter of the nation’s population have fled. UNHCR describes it as the world’s second largest refugee crisis — the largest being persons fleeing Syria. Venezuela was once a prosperous country benefiting from its oil production. Venezuela’s GDP shrank by roughly two-thirds between 2014 and 2020. President Trump referred to conditions in Venezuela as “the worst humanitarian crisis in the Western Hemisphere in recent memory” and acted on a federal program to protect Venezuelan migrants already in the U.S. from deportation. The Biden administration, in its TPS determination for Venezuela, cites “widespread hunger and malnutrition, a growing influence and presence of non-state armed groups, repression, and a crumbling infrastructure.”
Unaccompanied Migrant Children and Special Immigrant Visas
The Office of Refugee Resettlement (ORR), within the Department of Health and Human Services, was established by the Refugee Act of 1980 to serve vulnerable newcomer populations into the United States, such as refugees, asylees, Cuban and Haitian emigres, torture survivors, and victims of human trafficking.
ORR oversees the well-being and green-card or asylum eligibility for unaccompanied minors who arrive on our border. Since 2020, 450,000 unaccompanied minors have entered, or been brought to, our country.
ORR also works with USCIS to provide support for Afghan and Iraqi nationals, and their immediate families, because of service to the U.S, government and who have received special immigrant visas (SIV) to travel to a U.S. port of entry. Through March 2021, almost 100,000 Iraqi and Afghans received SIVs — 31,000 awarded to a principal and 69,000 for spouses and children. Persons with a SIV are eligible for a green card. Other Afghans fleeing their country have received temporary protected status.
Dreamers
The Deferred Action for Childhood Arrivals (DACA) is, technically speaking, an exercise of prosecutorial discretion which provides temporary relief from deportation (deferred action) and work authorization for undocumented immigrants who were brought to the United States as small children. It was promulgated as a federal rule in 2012 by the then-Secretary of Homeland Security Janet Napolitano. It does not provide lawful permanent residency and it must be renewed by the individual every two years.
In 2017, Acting Secretary of Homeland Security Elaine Duke acted to rescind and “wind down” DACA. In 2020, the Supreme Court ruled that the attempt to terminate the program was unlawful because the Trump administration did not follow the procedures for altering federal rules established by the Administrative Procedures Act (APA). The Court recognized, however, that the federal government could end DACA if it did so in accord with the APA. The Court decision restored DACA to its condition before Acting Secretary Duke’s attempted recission.
The very day he took office, President Biden issued a memorandum affirming the federal government’s commitment to DACA. In June 2021, there were 590,070 active DACA recipients, with 84,413 renewals pending.
Whew. If you are skeptical about any of this, please check the source links. If there is something I should have covered, or covered better, please let me know. Next week, the stereotypes.
Source Links:
Circumvention of Lawful Pathways
Employment Authorization Document
Nations with Temporary Protected Status
Office of Refugee Resettlement