Andrew Selee, president of Corporation grantee Migration Policy Institute, assesses how shifts in American immigration policy might reverberate across the region and more broadly around the world
Title 42, a COVID-19 public health restriction affecting migrants at the U.S.-Mexico border, expired on May 11, 2023, when the public health emergency for COVID-19 was lifted. This development alters three years of U.S. immigration policy, introducing both new opportunities and new risks. For the first time since March 2020, the United States will have to grapple with the public health, border control, humanitarian, legal, and ethical implications of a return to Title 8 — the standard, decades-old rules for enforcing immigration law.
The Migration Policy Institute, a global nonpartisan institution and long-time Carnegie Corporation of New York grantee, works toward the improvement of immigration and integration policies through fact-based research, opportunities for learning and dialogue, and the development of new ideas to address complex policy questions.
In the following Q&A, Andrew Selee, president of the institute and an Andrew Carnegie Fellow, discusses the origin of Title 42, the pressures around U.S. migration policy, the role of international issues in influencing immigration reform, how U.S. migration policy influences neighboring countries, and more.
Title 42 was a public health order originally enacted under the Trump administration, which allowed U.S. authorities to expel migrants quickly back to Mexico or, in rare cases, to their countries of origin. It was initially seen as the toughest measure the U.S. government had ever implemented at the border because it did not allow for access to asylum and created an expedited way of removing migrants quickly back to Mexico. But over time, it became evident that many migrants who were expelled across the border would keep trying to cross and often they would eventually succeed, making it far less effective. The Biden administration tried to lift Title 42 in spring 2022, arguing that it was no longer needed as a public health measure, had become ineffective as a deterrence tool, and violated the right to apply for asylum. A court stayed the administration’s decision, based on a lawsuit filed by several Republican attorneys general, and Title 42 remained in effect for an additional year.
When the public health emergency for COVID-19 was lifted last month, Title 42 automatically ended as well. That meant a return to Title 8, which allows migrants to apply for asylum but also leads to formal deportations to country of origin for those who do not qualify, and the possibility of criminal prosecution for a second entry during a five-year period. The Biden administration published a new rule that requires migrants to seek asylum by making an appointment at a port of entry through an online app, and creates a presumption of ineligibility for asylum for those who try to cross between ports of entry.
At the same time, the administration has tried to expand some legal pathways for certain nationalities, including employment-based visas for Central Americans, and a large sponsorship program for Cubans, Haitians, Nicaraguans, and Venezuelans (as well as Ukrainians). They have also committed to opening regional processing centers in Latin America to provide humanitarian protection as well as information on legal pathways, although this seems to be a longer-term effort.
In the first few days after the end of Title 42, unauthorized crossings at the border dropped dramatically, but it remains to be seen if this continues, if the appointments system for asylum works, if the legal pathways provide real alternatives, and whether all of these measures survive a series of lawsuits by groups on the left and the right.
There is a major mismatch between the U.S. labor market, which is increasingly dependent on immigrant workers as the U.S. population ages, and the legal pathways available to those people who would like to come to the United States — and this mismatch accounts for much of the rise in unauthorized migration to the U.S. But these pressures have been augmented by a series of major crises around the world. These include the Russian invasion of Ukraine; the Taliban takeover in Afghanistan; and a mixture of authoritarian government and collapsing economy in countries like Venezuela, Nicaragua, Cuba, and Haiti. And climate change has further exacerbated migration from some traditional sending countries — in Central America and the Caribbean — that are experiencing significant changes in weather patterns.
The Biden administration has managed to open up sponsorship programs that allow some people from Ukraine, Venezuela, Nicaragua, Cuba, and Haiti to enter legally for two years if they have a U.S.-based sponsor, and the U.S. admitted tens of thousands of Afghans after the Taliban takeover of Kabul, allowing them to pursue their immigration and protection processes inside the U.S. However, these are largely ad hoc responses to immediate crises, and the U.S. legal immigration and humanitarian protection system needs broader reforms to deal with changing global circumstances.
U.S. policy has contradictory effects in nearby countries. On the one hand, the U.S. government has played a vital role in supporting countries in Latin America and the Caribbean that are hosting large, displaced populations, including over six million Venezuelans and several hundred thousand Haitians and Nicaraguans. Through international aid, the U.S. government has become the leading donor supporting host countries like Colombia, Ecuador, Peru, and Nicaragua.
At the same time, the U.S. government has increasingly sought to get countries in the region to serve as buffers against unauthorized migration, especially Mexico and countries in Central America. Some of these measures make sense, in terms of trying to create more regular and predictable flows, but it sometimes looks like outsourcing of U.S. enforcement efforts to other countries and could undermine the generally welcoming policies that other countries in the region have had towards migrants and displaced populations.
There are two possible scenarios that could emerge globally from current U.S. policy changes. One is that the U.S. reforms of border policy, asylum, and legal pathways begin to generate similar efforts to create regular and predictable migration around the world by expanding legal options for entry, focusing more on identifying humanitarian protection needs closer to where people live, creating narrower but effective asylum channels, and bringing down the large number of unauthorized arrivals that tend to provoke a political backlash in receiving countries (not just in the U.S. and Europe, but also increasingly in many large countries in Latin America, Africa, and the Asia-Pacific region). That would be a positive outcome that could generate healthy experimentation in how to do all of these things at once and generate more orderly and predictable migration movements, as well as better approaches to protecting those in danger.
The other possibility is that the enforcement strategies take root, along with narrower asylum access at the border, but that the legal pathways do not expand significantly and protection initiatives closer to where people live never fully take off. That would almost certainly also mean a continuation of large-scale unauthorized migration with even fewer options for protection, and it would make immigration an even more contentious issue around the world.
It’s likely that parts of both scenarios will happen at the same time in different places. However, over time major receiving countries will have an incentive to get immigration right because declining populations will require rethinking immigration policies sooner or later.
Immigrants have always made an outsized contribution to innovation, entrepreneurship, and creative change in the United States. This will grow even more important as the growth rate of the native-born population continues to slow and then turns negative around 2032. Immigrants are already providing most of the growth in the labor force (and soon it will be all of the growth), and they will also be vital to sustaining a robust tax base.
To make sure that immigration policy succeeds and meets the challenges of the future, at least three things need to happen. First, the U.S. needs a legal immigration system that can handle the demand for workers in the country in predictable and consistent ways, which requires redesigning an antiquated immigration system largely built on the foundations of a 1965 law. Second, the U.S. needs to be able to bring down unauthorized immigration to ensure the credibility of the immigration system by channeling migration into legal pathways and more effective protection efforts.
And third, and perhaps most importantly, the U.S. will need to find ways to invest in immigrants once they are in the country, providing equitable access to education, labor markets, and long-term legal status. And this will need to include regularizing the status of the millions of undocumented immigrants who are already in U.S. communities and contributing to the workforce, starting with those who have been in the country the longest, came as children, or have U.S.-born children of their own.
Finally, as immigration — most of it from Latin America and the Caribbean, Asia, and Africa — becomes increasingly more visible, we will have to contend with historical racial and ethnic barriers in U.S. society, and recommit ourselves as a country to a far broader and more inclusive sense of nationhood.
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