Ahead of US Midterms, How Has US Immigration Policy Changed?

As the U.S. midterm elections near, immigration remains one of the country’s most contentious political issues, largely in relation to the number of people attempting to enter the U.S. at the southwestern border.

While a record number of migrants are arriving at the US-Mexico border — for which Republicans blame President Joe Biden, a Democrat — data analyzed by the Migration Policy Institute (MPI) shows the Biden administration has been active on immigration and 296 issued executive orders.

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And the Biden administration has retained some Trump-era policies.

US-Mexico border and the asylum program

The Biden administration has continued Title 42, a policy implemented in March 2020 on behalf of the US Centers for Disease Control and Prevention (CDC) to protect public health during the pandemic. More than 1 million migrants seeking asylum in the United States were deported to their home countries or Mexico in fiscal 2022. Title 42 was established and enforced by the Trump administration as a blanket policy and amended under Biden to allow unaccompanied minors and families with young children to enter the United States

FILE - Asylum-seeking migrants, mostly from Venezuela and Cuba, wait to be transported by U.S. Customs and Border Protection officials after crossing the Rio Grande River from Mexico to the United States at Eagle Pass, Texas, July 14, 2022.

FILE – Asylum-seeking migrants, mostly from Venezuela and Cuba, wait to be transported by U.S. Customs and Border Protection officials after crossing the Rio Grande River from Mexico to the United States at Eagle Pass, Texas, July 14, 2022.

US law provides asylum to people who are persecuted in their home countries because of race, religion, nationality, political opinion, or membership of a particular group.

In May 2022, the Biden administration announced it would end Title 42. Republican-led states sued, and a court ruling has retained the policy with no expiration date.

The Biden administration managed to end another Trump-era policy known as the Migrant Protection Protocols (MPP), which required asylum seekers to wait in Mexico until an immigration court heard their case.

Due to a federal court order, migrants are no longer enrolled in MPP. Those already enrolled in MPP and waiting in Mexico will be allowed to enter the United States for their next court date and will not have to return to Mexico.

On May 31, 2022, the administration began implementing a change in the processing of some asylum applications. The new guidance aims to streamline the asylum process and send fewer cases to US immigration courts with backlogs. US asylum officials would decide on the asylum applications of migrants arriving after March 31.


Biden initially kept the annual cap on US refugees at 15,000, the lowest number in modern US history, prompting protests by Democrats on Capitol Hill. In May, the administration increased the cap to 62,500. However, the number of refugees actually admitted to the United States in fiscal year 2021, which ended September 30, was 11,411.

The Biden administration has raised the refugee cap to 125,000 for fiscal year 2022. But by July, the program had taken in 17,690 refugees. Advocates say the government will fall short of its ambitious target, but note the refugee program is still being rebuilt after years of restricted admission.

Biden is expected to set a new cap on Oct. 1, but challenges related to the pandemic and resource allocation remain.

enforcement priorities

The Biden administration vowed to make better use of existing enforcement resources outside the border, including policies on detention, arrests and deportations. Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced on September 30, 2021 the new enforcement priorities “Policies for Enforcement of Civilian Immigration Laws.”

FILE - Secretary of Homeland Security Alejandro Mayorkas speaks to reporters in Washington on Sept. 3, 2021.

FILE – Secretary of Homeland Security Alejandro Mayorkas speaks to reporters in Washington on Sept. 3, 2021.

Mayorkas ordered Immigration and Customs Enforcement (ICE) officials to focus on migrants who posed a threat to public safety, national security and those who had recently crossed the U.S.-Mexico border illegally. Under former President Donald Trump, ICE officers were given wide discretion to arrest and deport immigrants.

Some Republican-led states sued the Biden administration, arguing the guidance focused primarily on those convicted of serious crimes while ignoring those who had committed other crimes. A federal judge has since blocked some elements of the September guidelines.

According to MPI, current DHS priority enforcement policies focus on limiting immigration enforcement to specific populations, locations, and situations. That being said, ICE officers can still make “individual enforcement decisions” based on the circumstances of each individual case.

“ICE officers have been directed not to arrest or detain anyone who is pregnant, postpartum or breastfeeding in general — although they can still initiate deportation procedures — and not to take enforcement action against non-citizens seeking immigration benefits based on their crime victim status. ‘ said MPI.

Other places where officials are urged to limit enforcement actions are in or near courthouses, schools, hospitals, places of worship, public ceremonies such as funerals or weddings, and protest sites.

Mayorkas also directed DHS sub-agencies to ensure that non-citizens who served in the US armed forces are returned to the United States if immigration officials determine they have been wrongfully deported.

Temporary protection

Some immigrants who moved to the US under unusual circumstances have been granted temporary residency in the country. This applies to those on Temporary Protection Status (TPS), Deferred Action for Childhood Arrivals (DACA), and Humanitarian Probation.

Under the Biden administration, immigrants from 15 countries are currently eligible for TPS, which allows applicants to temporarily live and work in the United States and deports them from deportation. TPS designations can be for 6, 12 or 18 months.

DACA, a policy introduced by the Obama administration in 2012 that allows minors to go to school and legally work in the United States, celebrated its 10th anniversary. The recipients, however, live in limbo as the program has been the focus of numerous court cases.

DACA recipients are currently awaiting a ruling from the US 5th Circuit Court of Appeals in a case challenging the legitimacy of the program.

The Biden administration announced the final version of a rule codifying DACA in August. The rule maintains the program as created by the Obama administration. Barring any legal challenges, the rule would take effect on October 31, 2022.

And while TPS and DACA recipients are allowed to live and work in the United States, the programs do not offer a route to citizenship.

Legal immigration

After more than a year of closure, U.S. embassies and consulates around the world have reopened for immigrant and nonimmigrant visa appointments. However, applicants still face significant visa wait times as staff levels recover from the pandemic shutdown.

A State Department spokesman told VOA in August that visa interview wait times vary by country and depend on local conditions and demand. The waiting time for a routine visa appointment at half of US consulates “is less than four months, and at some posts it’s much shorter,” the spokesman said.

Public levy

The Biden administration passed rule in September to remove immigration hurdles for people deemed “likely” to become dependent on public services while attempting to obtain a visa or gain permanent residency in the United States.

The final rule is scheduled to go into effect on December 23. The DHS announcement restores historical understanding of a decades-long “public indictment.”

This means that DHS will no longer flag a non-citizen as a public charge if they received certain in-kind benefits that were available to them, such as the Supplemental Nutrition Assistance Program or other nutritional programs, Children’s Health Insurance Program (CHIP), Medicaid — except for long-term institutional ones Nursing – housing benefit or anything related to vaccinations or communicable disease testing.

Immigration legislation stalled

On his first day in office, Biden introduced a sweeping immigration reform bill, the US Citizenship Act of 2021, which provided an eight-year path to citizenship for the US’s estimated 11 million undocumented immigrants

The bill is considered dead on Capitol Hill. Other immigration laws have been introduced, but Congress has yet to legislate.

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