http://on.cfr.org/1IZcrjI

Introduction

U.S. immigration policy has been a touchstone of political debate for decades as policymakers consider U.S. labor demands and border security concerns. Comprehensive immigration reform has eluded Congress for years, moving decisions into the executive and judicial branches of government and pushing the debate into the halls of state and municipal governments. Meanwhile, the fates of the estimated eleven million undocumented immigrants in the country, as well as future rules for legal migration, lie in the balance.

President Barack Obama's immigration policies have drawn ire from immigration advocates and opponents alike. Though he pledged to tackle comprehensive immigration reform in his first year in office, Obama did not make the issue a priority until his second term. His administration has deported more than two millionundocumented immigrants, more than former President George W. Bush did in his two terms, though some of this reflects the rise in border arrests of migrants from countries other than Mexico, who must be formally deported (arrivals from Canada and Mexico can be repatriated without legal proceedings). Through a series of executive actions in 2012 and 2014, however, Obama has tried to grant a reprieve to as many as five millionundocumented immigrants in the United States. Meanwhile, experts say Congress is unlikely to pass comprehensive reform anytime soon, although bills to toughen border security and boost high-skilled immigration may find bipartisan support.

The Politics and Economics of the U.S. Immigration Debate

There are more than forty-one million immigrants living in the United States. In 2014 the State Department issued just under a half million immigrant visas (PDF), and in November of that year it reported that 4.4 million visa applicants were on thedepartment's waiting list (PDF). The United States issues 140,000 employment-based immigrant visas each year, most of which go to high-skilled workers.

"Increasingly, people who are coming are Central Americans fleeing violence and seeking asylum—not Mexicans seeking work—and that's a very different policy problem."—Edward Alden

A 2013 Gallup poll found that the majority of Americans support various elements that would comprise comprehensive immigration reform, including creating a path to citizenship for undocumented immigrants (88 percent), requiring employers to check immigration status of workers (84 percent), tightening border security (83 percent), and expanding short-term visas for skilled workers (76 percent).

Many tech-industry leaders have become prominent supporters of immigration reform, arguing their companies rely on foreign talent, particularly in high-demand STEM (science, technology, engineering, and math) fields. They argue that if skilled workers—many of whom are educated in U.S. universities—are not permitted to work in the United States, some tech companies may be forced to move their operations offshore.

Meanwhile, the demographics of undocumented immigrants has changed. The number of undocumented immigrants living in the United States has leveled off since the 2008 economic crisis, which led some undocumented immigrants to return to their countries of origin and reduced the arrival of new migrants. More than half of this population has lived in the country for more than a decade. Nearly one third of undocumented immigrants in the United States are the parents of U.S.-born children, according to the Pew Research Center.

"[The United States' undocumented immigrant] population is not growing—it's more settled," says CFR Senior Fellow Edward Alden. "Increasingly, people who are coming are Central Americans fleeing violence and seeking asylum—not Mexicans seeking work—and that's a very different policy problem. But I don’t think Congress has caught up with that. The debate and the approaches still reflect the world of a decade ago."

While the majority of Democratic lawmakers supports comprehensive immigration reform, the Republican Party is divided. Obama won 71 percent of the Hispanic vote in the 2012 presidential elections and many Republican strategists said that their party would need to strike a more conciliatory tone on migration following the party's loss that year. (Hispanic voters, the majority of whom support more liberal immigration laws, comprise 10 percent of the electorate and 17 percent in Florida, a swing state.)

Immigration Reform Legislation

Comprehensive immigration reform refers to proposed legislation that would change U.S. immigration laws to address demand for high-skilled and low-skilled labor, legalize most undocumented immigrants already in the country, and toughen border and interior enforcement. In June 2013, the Senate passed a comprehensive immigration reform bill with bipartisan support. The bill would have provided a path to citizenship for undocumented immigrants in the country as well as tough border security provisions. But Speaker John Boehner (R-OH) did not put it before a vote in the House of Representatives.

Lawmakers have also offered piecemeal approaches to immigration reform. Legislation that Congress is considering includes:

• Immigration Innovation Act: A bipartisan bill introduced in the Senate in January 2015 that would nearly double the number of visas for temporary high-skilled workers, from 65,000 to 115,000, and eliminate annual per-country limits for employment-based green cards.
• Start-Up Act: A bipartisan bill introduced in the Senate in January 2015 (three prior versions had been introduced) that proposed creating an entrepreneurs’ visa for immigrants and a STEM visa for U.S.-educated workers with advanced degrees in science, technology, engineering or mathematics, and eliminating per-country caps on employment-based immigration visas.
• Secure Our Borders First Act: A Republican bill that threatens penalties against senior Department of Homeland Security (DHS) officials whose departments fail to intercept a targeted number of crossings. The proposal would allow the Border Patrol to operate on all federal lands, provide funding for the National Guard to participate in securing the border, and authorize expanded use of surveillance drones along the border.

Executive Authority

In light of congressional impasses, President Obama has resorted to executive action on immigration reform. In June 2012, Obama announced that the federal government would no longer deport undocumented immigrants who came to the United States before the age of sixteen and were younger than thirty at the time of the announcement, had been in the country for five continuous years, and had no criminal history. The executive action, known as the Defered Action for Childhood Arrivals, or DACA, applied to an estimated 1.7 million people, granting them renewable two-year deportation deferals and work permits. The executive action was inspired by the Development, Relief, and Education for Alien Minors Act, known as the DREAM Act, a bill first introduced in 2001 that foundered in Congress.

In November 2014, shortly after the Republican Party took control of the Senate in midterm elections and prospects for a congressional vote on immigration reform waned, Obama announced a second executive action: the Immigration Accountability Executive Action, also known as Deferred Action for Parents of Americans, or DAPA. The move would affect as many as five million people, including an estimated four million undocumented immigrants who are the parents of U.S. citizens, deferring deportation and allowing them to work legally for three years. Those applying for this status would have to pass background checks. The executive action also did away with Secure Communities, a 2008 program that allowed local law enforcement to share fingerprints of arrestees with the federal Immigration and Customs Enforcement agency to examine their status and criminal history for possible deportation.

Obama's immigration announcement emphasized his administration's efforts to secure the U.S. border, and in FY 2014, nearly twenty thousand U.S. Border Patrol agents (PDF) operated along the southwestern border—the largest deployment in U.S. history.

Many in Congress lambasted the move, saying the president did not have legal authority to carry it out. Twenty-six states, led by Texas, sued the administration, alleging the president failed to enforce federal law and placed new financial burdens on the states. Three senators and sixty-five House members, all Republicans, signed a legal brief filed by the American Center for Law and Justice, a conservative advocacy group, claiming Obama's executive action was illegal. On February 16, a federal judge in Texas placed an injunction against the executive order, delaying the expansion of DACA, which had been scheduled to enter into force that week. The administration has appealed to lift that injunction.

State and Local Immigration Policies

While immigration law is controlled at the federal level, states and cities vary widely in how they enforce federal immigration laws. In September 2013, California enacted some of the most immigrant-friendly policies on the books: Undocumented immigrants are eligible to apply for drivers' licenses, practice law, and receive in-state tuition at universities. Legal permanent residents may sit on juries and monitor polls, although they cannot vote.

At the other end of the spectrum, Arizona passed SB 1070 in April 2010, which made it illegal for immigrants not to carry  their documents and authorized police to detain people they "reasonably" suspect are unauthorized. One provision of the law, called "papers, please," authorizes local law enforecement to stop people they suspect are undocumented and ask them for proof of citizenship, an aspect of the law that civil liberties groups say amounts to racial profiling. Despite harsh criticism, several other states, including Alabama, Georgia, South Carolina, Tennessee, and Florida, have approved or considered similar legislation.

"A case involving five million people as potential beneficiaries of deferred action has never gone to any court."—Muzaffar Chishti of Migration Policy Institute

Existing laws are not enforced or implemented uniformly across the states, resulting an uneven patchwork of standards. For example, the use of E-Verify, an electronic system used by businesses to verify employees' immigration statuses, varies widely acrossthe country; the federal government has not passed a mandate for states to participate. Sixteen states have mandated its use by state agencies and employers, while California prohibits local municipalities from enforcing its use.

Cities have also taken some immigration-related policies into their own hands. In 2014, New York City limited  its police’s cooperation with federal authorities in deporting immigrants. Local law enforcement in New York City will now only cooperate with immigration authorities when the immigrants in question have committed a "violent or serious crime." Philadelphia, San Diego, Newark, Chicago, and Los Angeles have similar ordinances. In 2007, New Haven, CT, became the first city in the United States to offer municipal identification cards without requiring proof of immigration status. Several other cities, including New York City, Los Angeles, San Francisco, and Washington, DC, have followed suit. 

Immigration Policy in the Courts

The uneven enforcement of immigration laws and the unclear boundaries between federal and state jurisdiction have sent many debates over U.S. immigration policy to the courts.

In 2012, the Supreme Court struck down three of the four major parts of Arizona's SB 1070 law, including provisions that made it a state crime for undocumented immigrants to seek or perform work or fail to carry registration papers, and a provision that allowed law enforcement to arrest them without a warrant if there was "probable cause" that they committed a public offense. However, in 2012 the court upheld the controversial "papers, please" provision allowing law enforcement to ask for proof of citizenship, ruling that Arizona did not overstep its jurisdiction by enacting this portion of the law. In 2014, the Obama administration dropped its case against Arizona, allowing the "papers, please" clause to stand as Arizona ceased its efforts to reinstate the part of SB 1070 that made it a crime to harbor undocumented immigrants.

In February 2015, a federal judge in Texas ruled in favor of a suit brought by Texas and twenty-five states against Obama's Immigration Accountability Executive Action, ruling that the Obama administration had not followed legal procedures for changing federal rules. The administration has said it would appeal the decision, and experts say the case will likely go to the Supreme Court.

"It's a very important setback, but it's not the last word on the subject," says Muzaffar Chishti, director of the think tank Migration Policy Institute’s office at New York University’s School of Law. "A case involving five million people as potential beneficiaries of deferred action has never gone to any court. Having said that, the Supreme Court has granted a lot of deference to the federal government in exercise of enforcement of immigration laws."

Prospects for Comprehensive Reform

Given political polarization in Congress, particularly in the House of Representatives, propsects for legislation on immigration are dim, experts say. The Republican Party faces internal divisions: Potential 2016 presidential candidates including former Florida Governor Jeb Bush and Senator Marco Rubio (R-FL) support some immigration reform, whereas such legislation has less support among House Republicans. Former House Majority Leader Eric Cantor (R-VA) lost his seat in the primary to Tea Party candidate Dave Brat, who had assailed Cantor for suggesting comprehensive reform be on the table. "The Republican Party is deeply internally divided," says Alden. "The establishment wing is in favor of reform and the populist wing opposes it.”

Talk of comprehensive reform in Congress has diminished. "If anything happens it will happen in pieces," Alden says. "I'm not particularly optimistic that anything will happen legislatively, but if it does it will be piecemeal."

In the meantime, the fates of millions of immigrants may lie with the courts as the Obama administration appeals the federal court decision.

Additional Resources

This CFR Report looks at the efficacy of enforcing immigration laws in the United States.

The Pew Hispanic Center charts trends in the U.S. undocumented immigrant population over the last two decades.

This Migration Policy Institute profiles the first two years of Obama's Deferred Action for Childhood Arrivals executive action.

The Immigration Policy Center calculates the cost to the U.S. economy of delayed immigration legislation.

CFR's Task Force Report on U.S. immigration policy offers a strategy for maintaining U.S. political and economic leadership by attracting skilled immigrants, a program of legalization for those living in the United States illegally, and steps for securing the country's borders in an effective and humane way.

More on this topic from CFR

• Parsing U.S. Immigration Reform
  Interviewee: Edward Alden, Bernard L. Schwartz Senior Fellow
  Interviewer: Brianna Lee
• U.S. Immigration Policy
  Speaker: Edward Alden, Bernard L. Schwartz Senior Fellow, Council on Foreign Relations
  Moderator: Irina A. Faskianos, Vice President, National Program & Outreach, Council on Foreign Relations
• U.S. Immigration Policy