Biden isn’t meeting America’s immigration needs with his ‘lawful pathways’

The administration has released more than a million migrants into the United States who do not have visas.  

We do need immigrants. The nonpartisan Congressional Budget Office released a report last month, The Budget and Economic Outlook: 2024 to 2034, showing how much the U.S. economy and the national budget depend on immigrant workers. But the administration is not screening these immigrants to determine whether they will meet our employment needs. 

CBO expects that only around 2 percent of these migrants will be highly skilled workers who can fill jobs in the fields of science, technology, engineering or mathematics. And the ones who are not highly skilled generally will work in sectors of the economy that pay relatively low wages, which will put downward pressure on average wages for low-skill jobs. Nor are these migrants being chosen to reunite American citizens and lawful permanent residents with foreign family members. Rather, the administration is bypassing the visa system in the Immigration and Nationality Act, which allocates employment-based and family-based visas. 

Between the beginning of the Biden presidency in January 2021 and the end of September 2023, the Border Patrol had nearly 6 million encounters with illegal border crossers and released around 3.3 million of them into the country.  

The administration also has established “legal pathways” that provide an alternative to illegal border crossings for migrants who can’t get visas. It has used these initiatives and border practices to parole around 3.6 million migrants into the country in the last three years. The parole status of at least 1.2 million of them has lapsed, and they are still here.  

The legal pathways include special processes for paroling up to 30,000 nationals a month into the country from Cuba, Haiti, Nicaragua and Venezuela who have a U.S.-based supporter. The requirements for establishing eligibility include undergoing national security vetting and demonstrating that a grant of parole is warranted because of significant public benefit or for urgent humanitarian reasons.  

The administration also expanded the CBP One mobile application program that had been launched by the Trump administration. It permits immigrants without visas to schedule an appointment to present themselves for an interview at a designated port of entry to establish a basis for being admitted to the U.S.   

Nearly 250,000 migrants without visas have been paroled into the United States through this program through August 2023. Parole was granted in 99.7 percent of the interviews. The administration expanded the CBP One program in late 2022, to include 320,000 migrants without visas who arrive at airports instead of at a port of entry on a land border. 

The immigrants the administration is admitting without visas will be able to stay even if they don’t establish a legal basis for remaining. Approximately 99.7 percent of the 3.3 million undocumented migrants the administration has released into the country are still here. 

According to TRAC, the growth of the backlog during the Biden presidency has been accelerating at a breakneck pace. The immigration court had a backlog of 1,290,766 cases when Biden began his presidency, and as of the end of February 2024, it had 3,438,990 cases.  

This means that the only way the immigration court can adjudicate new asylum applications is to put the new asylum seekers ahead of migrants who have been waiting up to 10 years for a hearing, and the only way to put deportable migrants in removal proceedings is to put them at the head of that same line. 

And progress isn’t being made on reducing the backlog. So far in fiscal 2024, the immigration court has received 993,966 new cases, and it only has closed 355,372. At that rate, the court would have to almost triple its number of judges just to keep up.  

Moreover, removal is not likely even for migrants who are subject to a final order of deportation. According to the ICE Annual Report for Fiscal 2023, there were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and ICE was only able to remove 142,580 of them.  

A new bipartisan Senate bill with border security provisions would increase family and employment-based green cards by adding 18,000 employment-based visas annually from fiscal 2025 through fiscal 2029, and 32,000 family-based visas per year from fiscal 2025 through fiscal 2029. 

The people who want to let millions of undocumented migrants into the country every year aren’t likely to be willing to accept the deterrents needed to end the tsunami of illegal border crossings for a temporary increase of 50,000 more visas a year. They would be more likely to cooperate in exchange for an increase in the annual worldwide level of immigrant visas from its current level of 480,00 visas to a million or even more visas, with the funding needed to process the additional visas. 

In return, the parole provision could be modified to restrict parole grants to individuals for periods limited to accomplishing the objective of the requested admission — with statutory language that would eliminate the administration’s parole programs.  

The asylum provisions could be amended to prohibit the admission of asylum seekers when the wait for a hearing before an immigration judge is expected to be more than six months (or whatever other period is acceptable). This would eliminate the practice of using asylum as a device for getting into the United States to be able to work here for several years or longer. 

The U.S. is a signatory to the Refugee Convention, which has a non-refoulment provision that prohibits the “return” of a refugee to a country where he will face serious threats to his life or freedom. Consequently, if asylum seekers are to be turned away, they should be offered transportation to the nearest available refugee camp.  

This approach should greatly reduce the pull factors that are a magnet to illegal border crossings and facilitate the admission of immigrants who meet our employment and family unification needs. 

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.