With a national immigration system that is far from perfect and near-constant news stories telling us how broken it is, it may feel like we are already experiencing the worst case scenario, or that we are experiencing a full-on crisis in all areas of immigration.
This is, of course, not entirely the case — or at least, it doesn’t tell the whole story. While we as a country may be experiencing a critical moment in the trajectory of our immigration policy, it is worth noting that we have yet to see an extreme overhaul of current policies, and that the majority of this administration’s proposed legislation has not passed smoothly through Congress. Thousands of people from across the globe still have the opportunity to enter this country through a legal, though arduous, process. Those in the process of immigrating legally before President Trump took office are still in line, and, as things stand now, will still have a (generally) fair chance to complete the application process when it is their turn.
The proposed system
On May 16th, 2019, the President announced a plan that could change this reality. Trump’s plan, which senior White House adviser, Jared Kushner, spent many months formulating, introduces one of the most extreme changes to immigration policy yet. This plan is still far from becoming legislation, and even further from being enacted into law. Nevertheless, it is important to understand the details of Kushner and Trump’s proposed the merit-based “Build America visa” and what it could mean for the future and the very foundation of our national immigration policy.
The proposed policy, which is described as “Pro-American, Pro-Immigrant, and Pro-Worker” is multifaceted. As part of a complete policy reform, the administration proposes to:
- Finish the border wall and create a self-sustaining border security fund, most likely by collecting fees at the border;
- Attempt to close loop-holes in the current asylum process and limit the number of individuals seeking asylum overall by detaining people for longer periods and raising the standard for passing the “credible fear” interview (the first step toward applying for asylum);
- Replace the current “visa lottery” and green card application process with a points-based system that favors skilled workers, English-speakers, those with financial stability, and young individuals who will have more of their lifetime to contribute to the U.S. workforce;
- Prioritize spouses and children of U.S. citizens and exclude other family relationships.
The “Build America visa”, according to Trump, would completely replace the current Green Card application process with a merit- or point-based system for immigration. To understand what this could mean for immigrants and hopeful immigrations, it is important to understand how the current system works.
The current immigration system
Under the current legal immigration system, established largely by Immigration Acts in the second half of the twentieth century, United States citizens, naturalized citizens, and Legal Permanent Residents (LPRs) can each petition for four categories of immediate relatives: spouses, parents, unmarried children under 21, and adopted children, as well as various “family preference categories,” which include married and unmarried sons and daughters of U.S. citizens or LPRs and their minor children, as well as siblings, their spouses and their minor children. This process of “family-based immigration” may in some cases take a devastatingly long time, but it is not terribly restrictive. In general, it allows for families to be reunited (over time) and for the phenomenon often cited as “chain migration” — when immigrants gain legal status and continue to bring more and more family members to the U.S.
Under our current system, non-immigrant workers in the U.S. on employment-based visas also have the ability to bring their spouses to the U.S. and their spouses have the ability to gain work authorization in order to sustain a shared life in the U.S. where the employee has been recruited to work. Work-based visas are not easy to get, as they generally require a high level of skill and in many cases operate on a lottery-like system where very few qualified applicants actually make the cut. The current system allows for these skilled individuals to bring their family to the U.S. through a legal process, rather than forcing their separation.
The Immigration and Nationality Act of 1965, and later the Immigration Act of 1990, set limits for each visa category and put a cap on how many immigrants could enter the U.S. annually through each visa category. Each of these acts helped shaped the immigration system that we know today and had the beneficial outcomes of putting an end to racial and ethnic quotas in immigration and emphasizing family reunification in drafting the legislation. Components of these Acts have allowed Congress and the Supreme Court to challenge many of Trump’s executive orders, including Executive Order 13769, which pushed to specifically ban immigrants from seven Muslim countries.
Under the Immigration and Nationality Act (INA), U.S. Citizens and Legal Permanent Residents can petition for their family members as long as they have an eligible family relationship and as long as they can either financially sponsor the intending immigrant, or find someone else who can. Under this system, LPRs, or LPRs that have recently naturalized, can file a petition for their spouse, parent, sibling, or child to join them in the U.S. While this process can sometimes take many years (depending on the visa category and country of origin), it still allows for the hope of family unification at some point in the future.
What a new policy would mean
The proposed “Build America” visa would dismantle this entire system and replace it with a process that is based on level of education, English-language abilities, and other so-called “merits.” The new policy would also remove parents and siblings from the possible eligibility categories and would limit family-based visas to spouses and minor children only. It would also restrict workers’ abilities to bring their family members to the U.S. and potentially block their spouses from obtaining work authorization. Not only would this new policy drastically change the future of family-, employment-, and humanitarian-based immigration, it would also result in the complete dissolution of the current system, a system which thousands of foreigners have spent years, and in some cases decades, participating in. This could mean that nearly 4 million immigrants who have sought immigration through the legal process would lose their place in a very long line.
Rather than finding a solution to the large number of undocumented individuals and DACA recipients already in the country or creating better, more humanitarian system for asylum-seekers at the Southern border (two issues that seem to be creating the most political strain currently), this highly-calculated and “revolutionary” new policy would instead primarily punish those who have already been playing by the long-established rules and doing things the “correct” way. It would punish the skilled workers, who would not be able to bring their families to the U.S., and it would punish siblings and parents who have paid the high fees and waited years to join their sibling or child who has established a life in the U.S. This plan would also not reduce the number of immigrants entering the country, but would instead change their composition to be overall less diverse.
Per the new system, the U.S. would expect intending immigrants to already speak and read English, have a higher level of education for skilled labor (in a country currently facing a severe shortage of low-skilled workers), and be financially secure without need for a sponsor (or even have the ability to invest in American companies or create new jobs upon arriving). The newly proposed system actually shares many characteristics of Canada’s immigration policy, which also operates on a points-system and focuses on bringing in skilled and promising immigrants rather than family reunification. These types of nationalist immigration policies are common in other Western countries hoping to attract skilled workers and outstanding citizens, but it would be unprecedented for a country with such a rich history of humanitarian and family-based immigration to shift completely away from this.
For now, the “Build America visa” is just a proposition. It is not even legislation yet. And with a Democratic majority in Congress, it is highly likely to come up against a lot of opposition. Nevertheless, it will be crucial to keep an eye on this as the Trump administration pushes forward. It is also a bit of a wake-up call, as it reminds us that reduced visa approval rates and tougher visa interviews that we are currently seeing are not the worst case scenario. The worst case scenario is to lose the foundation of, as well as the legal basis for, our entire legal immigration system. This would require us to start from scratch, in a new system, with a new set of rules.
Those most affected by this proposed policy (should it move forward) will be the millions of “non-immediate” family members (primarily parents and siblings) who would no longer be able to come to the U.S. through a legal route. This movement away from family reunification would mark a fundamental change in U.S. immigration policy and would have the most immediate effects on family members who believed they had a path forward. With the new knowledge that the Trump administration aims to restructure the entire immigration system rather than simply work on the weakest parts, it is safe to say that now would be a good time to take advantage of the current system while we still have it.