Friday 25 October 2024

Immigration is one of the top issues in the US 2024 presidential election. Most US adults consider it to be a priority, however there is little consensus on specific immigration policies. In the final runup to the election day, we aim to provide a brief analysis regarding the implications of both candidates’ proposed immigration policies and the way they would likely change the US immigration system.

Donald Trump

Proposed Immigration Policies

Trump’s immigration campaign promises revolve around reinstating and expanding on the immigration policies of his first presidential term, including using executive authority to finish the US Mexico border wall and carrying out what would be the largest domestic deportation operation in American history (estimated as deporting approximately 11 million migrants deemed unauthorized from the US in a multi-year military campaign).

Project 2025 “Mandate for Leadership” is a political initiative published by the conservative think tank, The Heritage Foundation, which was published in 2023. Although it has not been publicly endorsed by Trump, it has received a lot of attention for being a detailed agenda for a second Trump term. The “Mandate for Leadership” does not include specific plans for how the government would carry out mass deportation, however the guide does lay out key immigration proposals. It proposes doing away with the Flores settlement, a legal agreement that established national minimum standards for the treatment of detained immigrant children, and reinstating the “Remain in Mexico” immigration policy that was implemented in January 2019 under Trump which requires migrants seeking asylum to remain in Mexico until their US immigration court date. It also includes proposals to penalize countries for refusing to accept deportees from the US and forcing states and cities that receive Federal Emergency Management Agency grants to share databases with the federal government for immigration enforcement purposes. Strikingly, the guide also includes mention of directives for Immigration and Customs Enforcement (ICE) officials to take all unauthorized immigrants who have criminal records, prior deportation orders, or who have been identified by local police under 287(g) agreements (which authorize ICE to delegate to state and local law enforcement officers the authority to perform immigration officer functions under the agency’s oversight) into custody.

Furthermore, the guide calls for reducing or eliminating many paths to legal status, including eliminating pathways using parole authority, lowering refugee admissions, stripping away Temporary Protected Status, eliminating or greatly reducing the number of student visas issued to foreign students from certain countries, and reducing family-based immigration. The “Mandate for Leadership” even includes a proposal to significantly reduce eligibility for T visas and U visas for survivors of trafficking and violence against women.

Work visas would be no exception, as Project 2025 calls for the Department of Labor to lower the issuance of H2-A and H2-B “low-skilled” seasonal work visas, with an aim toward eliminating both visa types, and calls for lower H1-B “high-skilled” visas. Overall, this generally means that fewer junior-level immigrants would be legally allowed to work and only senior-level immigrants and immigrants with extraordinary ability would be spared from facing further barriers to pursuing work opportunities in the US.

Challenges and Pushback

Clearly, the biggest obstacle of a mass deportation effort would be resource constraints. It would likely require billions of dollars as well as space and facilities to logistically detain and process millions of people. To this end, Project 2025 calls on Congress to raise ICE’s budget and to increase its detention capacity to 100,000 beds. It also calls for loosened detention standards and for ICE to be allowed to operate less regulated facilities, although it does not explicitly call for camps to be constructed.

Amongst the myriad ways in which these proposed immigration policies would garner pushback, mass deportation efforts would expectedly give rise to great public opposition and be challenged in court. Like many of Trump’s immigration efforts in his first term, his efforts to follow through on his campaign promises would be met with many court challenges, such as his promise to sign an executive order to end birthright citizenship for “illegal aliens” which would face significant legal hurdles as birthright citizenship is enshrined in the Constitution.

Kamala Harris

Proposed Immigration Policies

Harris, as Vice President under President Joe Biden, has not overseen the border—that is the responsibility of the commissioner for US Customs and Border Protection (CBP) and the National Security Council senior director for transborder security. Rather, Harris has been tasked with a diplomatic assignment to reduce the incentives migrants have to leave Mexico, El Salvador, Guatemala, and Honduras, by enhancing lawful pathways for migration to the US and by strengthening ties with and supporting improved living conditions in these countries.

On the campaign trail, Harris has said that as President she would advocate for the bipartisan border bill that stalled in Congress due to Republican opposition. Harris has made the failed bipartisan border deal a focal point of her platform−underscoring that it would have tightened asylum rules, allowed for partial border shutdowns if crossings rose above a certain threshold, and significantly increased funding for immigration review, including funding to hire more judges, and to combat drug trafficking, including improving fentanyl detection technology. The bipartisan border deal has come to reflect Harris’ proposed immigration agenda for 2025: a mix of tough border restrictions−distinguishing herself from Biden by adopting an enforcement-first approach to immigration−and policies to support lawful pathways for migration. She says she will work to make sure the bipartisan border deal lands on her desk and has pledged to sign it.

As detailed in the bipartisan border deal, Harris proposes $20 billion in funding for increased border protection, and almost $8 billion in emergency funding for ICE, including funds to expand the capacity of detention facilities to 50,000 beds (an increase of 47 percent from the 34,000 beds allocated in 2023, 2022, and 2021). Her other immigration proposals include a higher standard for asylum eligibility that will require asylum seekers to establish a “reasonable possibility” that their asylum application will be approved, which will be a more difficult bar to meet than the current “significant possibility” standard, implementing an asylum protection determination procedure which would involve a six-month process conducted exclusively by asylum officers outside of the immigration court system as an alternative to expediated removal, and grants of conditional permanent resident status to Afghan foreign nationals who fled to the US following the withdrawal of the US military in 2021.

Regarding work visas, Harris’ policy proposal is to create 250,000 green card–eligible employment-based and family visas over the next five years. This immigration proposal would increase employment-based visas by 13 percent and family-based visas by 7 percent by 2030.

Challenges and Pushback

Although Harris may aim to get the bipartisan border deal on her desk and to deliver on her other immigration proposals it is unclear whether she would be successful as Congress has not passed a comprehensive immigration reform package in decades and Republicans are unlikely to give her such an important political victory.

Apart from the challenge of securing bipartisan cooperation, Harris’ policies are less likely to provoke as much public opposition. Unlike Trump, Harris’ plan takes into the account the reality that although businesses across the country were shuttered in early 2020 by the pandemic, in the recovery American companies have created more jobs than there are unemployed people to fill them. As the draw of work opportunities continues to attract migrants to the US and employers’ need for more people to do the work persists, increased pathways for legal migration will benefit US employers and the economy.

For advice on US immigration matters contact your Laura Devine Immigration attorney or enquiries@lauradevine.com.