The Volokh Conspiracy

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Assessing Biden's New Immigration Policies

Analysts differ on whether their net impact is more pro-immigration or more restrictionist. On balance, I think the former is closer to the truth. But there is some uncertainty here.


President Joe Biden
President Joe Biden. (Oliver Contreras - CNP/picture alliance / Consolidated News Photos/Newscom)


Last week, President Biden announced a major expansion of private migrant sponsorship programs to cover up to 30,000 entrants per month from Cuba, Nicaragua, Venezuela, an Haiti. But, at the same time, he also imposed new restrictions on asylum seekers and other migrants crossing the southern border, including an expansion of the use of Title 42 "public health" expulsions. What is the net effect of these measures? On that key point, analysts differ.

An extensive Washington Post article concludes the new initiatives are a win for immigration restrictionists within the Administration, who want tighter border controls in order to reduce political risks arising from perceptions of chaos at the border. By contrast, Cato Institute immigration policy expert David Bier suggests the changes are more likely to expand migration than reduce it.

Both assessments make reasonable points, and people interested in these issues would do well to read both in full. On balance, I think Bier is likely closer to the truth. As he points out, the expansion of private refugee sponsorship is coupled with measures making it easier to apply for asylum at legal points of entry. The latter should at least partially offset the impact of expanded Title 42 expulsions and other restrictive measures. In combination, Bier notes, the pro-immigration measures in Biden's new policy could amount to "one of the largest expansions in legal migration in decades."

The addition of up to 360,000 private-sponsorship migrants from the four Latin American countries by itself amounts to more than a third of annual pre-pandemic legal migration to the United States (about 1 million). The asylum measures could add thousands more (though much depends on implementation here). Also, the Uniting for Ukraine program—which has already allowed almost 100,000 people to enter since it began last year—continues. Unlike the extension to four Latin American nations, U4U has no numerical limitations. And, as Bier (who has also often criticized the administration) pointed out in a previous piece, Biden has taken a lot of other pro-immigration measures.

None of this absolves Biden of blame for serious errors and injustices on immigration, such as the double game the administration is playing on Title 42 expulsions. But, on balance, he has done much more to expand migration rights than restrict them.

That said, I will once again reiterate that Biden's most significant pro-immigration measures—Uniting for Ukraine and other private sponsorship initiatives—have two major limitations: they provide residency and employment rights for only two years, and they largely rely on executive discretion. Should the political winds shift, migrants relying on these policies could be left out in the cold, subject to deportation.

Fully fixing this problem requires congressional action. But Biden could improve things by extending the two year period to, say, five years or more. While a future president (or even Biden himself) could try to reverse that step, it is politically and legally harder to reverse an existing policy than to merely let a two-year time period run out "naturally."

The ultimate impact of Biden's immigration policies depends in large part on how much staying power they have over time—especially in the case of the private sponsorship programs. Time will tell.