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America’s Immigration System Is Fractured Beyond Repair

The next president will be tasked with fixing the damage Trump has done, but they will need to do much more than that.

Drew Angerer/Getty Images
A group of people about to take the oath of allegiance during a naturalization ceremony at Rockefeller Center on September 17, 2019, in New York City

Among all the ongoing crises currently fighting for prominence in the national conversation, the broad suspension of immigration barely registers, despite the enormous scale of the chaos happening right now. Green cards are no longer being printed, and U.S. Citizenship and Immigration Services, or USCIS, has stopped processing requests for new cards, both for people abroad and immigrants already inside the United States. Work visas have been greatly restricted; asylum hearings have been suspended. Immigration and Customs Enforcement has told international students—who are increasingly vital to the financial health of American universities—that they may have to return to their home countries if their schools switch to online-only classes this fall. (A group of over 200 colleges has sued ICE over that policy.) It isn’t just that the U.S. has put up a No Vacancies sign; the Trump administration has effectively shut down the machinery of the country’s immigration bureaucracy, which was already an immense, complicated, and oppressive arm of government that reaches into the lives of millions of people.

USCIS is in major financial trouble and recently requested an emergency appropriation of $1.2 billion from Congress to cover the shortfall. The agency is almost entirely funded by the fees paid along with immigration applications, and because so many of these applications have been put on hold, it is quickly running out of money. The situation is so dire that the agency can’t complete even the few functions it’s still ostensibly performing, like printing replacement green cards. Though immigration restrictionists sometimes claim they only want people to come to the U.S. the “right way,” this cascade of failures is disrupting the lives of those who have already jumped through the network of hoops required to become legal residents.

The grinding slowdown and increase in scrutiny that has occurred at USCIS has affected the uncountable number of people who have applied for any visa, green card, or work permit since Donald Trump took office. Permits that would usually arrive in under 90 days now take months, during which time the immigrant may be both unable to work and unable to leave the country without forfeiting their application. Green card interviews take years to be scheduled by USCIS; wait times for citizenship applications have doubled. If Joe Biden wins in November, he will have an enormous challenge ahead of him in just reversing the damage done by Trump. As the backlog grows, the task of making things better than they were, instead of just getting us back to where we started, grows ever more difficult.

The task force set up between Biden’s campaign and the Bernie Sanders campaign, meant to bring some policy consensus to the two vastly divergent wings of the party, recently issued its recommendations, including on immigration. Understandably, much of it did focus on reversing the damage done by Trump. The task force promised to reduce application backlogs, though it didn’t specify how, and to make immigration “faster” and “less costly.” This is one lesser-known area in which the Trump administration has made immigration much harder. In November last year, the administration proposed hiking fees for marriage-based green cards from $1,760 to $2,750 (which doesn’t include the cost of hiring a lawyer to navigate those complicated forms, a necessity for most applicants). The fee required to become a citizen would increase from $640 to $1,170. And to round out the evil, the administration attempted to make it harder for immigrants to qualify for hardship-based waivers for these fees.

It might sound odd to suggest lowering fees when it’s the lack of fee revenue that has hobbled USCIS during the pandemic. But there is a matter of principle here: It should not cost anything to become a citizen, and there should not be unreasonable financial hurdles to getting a green card or a visa. Tacking on fees for things that should be core functions of government available to all is a hallmark of the miserly, neoliberal mindset that has dominated American government for the past several decades; there is no reason why it should cost more than $100 to obtain the right to leave the country, in the form of a passport. But charging thousands of dollars to obtain citizenship is a step beyond this. It is plainly designed to put the process out of reach for most people, instead of encouraging immigrants to become part of American society. This is, of course, not what the Trump administration wants; it wants an oppressed and maligned immigrant underclass to serve the labor needs of wealthy corporations, never as equals to native-born Americans.

Clearly, this fee-based structure has set up a death spiral for the agency: With a president determined to limit immigration as much as possible, falling receipts from fees make USCIS even more dysfunctional and slow, discouraging further immigration and lowering revenues even further. The Biden administration should not only rescind the proposed rule but also lower or eliminate many immigration fees. This could mean changing how USCIS is funded, which might involve some creative legal or congressional wrangling, but the benefit would be a more just immigration system, and one that is better protected from future anti-immigration presidents.

The task force paper also pledged to tackle another aspect of America’s class-based immigration system, in its promise to “rescind the Trump Administration’s un-American immigrant wealth test.” Here the task force is referring to changes the Trump administration made to the public charge rule, which bars immigrants the government judges are likely to require benefits like Medicaid or the Supplemental Nutrition Assistance Program in the future. In practice, this makes it much more difficult for immigrants with incomes below 250 percent of the federal poverty level to stay in the country, a criterion tens of millions of Americans could not meet.

This declared intention to reverse the rule is obviously good news, but it elides how the immigration system has long discriminated on the basis of wealth. It is a tiered system, and it will take a much broader reimagining of our immigration system to dismantle this injustice. The uberwealthy can simply buy an “investor visa” by promising to create jobs; the reasonably wealthy and privileged, with professional degrees and careers, have access to a wider number of visas; the very poor have it hardest, and are subject to stricter scrutiny. And the process of applying for any immigration benefit is impossibly complicated and very expensive and almost always requires the help of a lawyer, who may charge thousands of dollars.

Even before the Trump era, immigrants or their family member sponsors had to prove they wouldn’t use benefits, and demonstrate that they made more than 125 percent of the federal poverty level. When I got married to my American husband, he had to sign a form detailing his finances and legally binding him to pay back the government for the costs of any means-tested public benefits programs I ended up using, even if we got divorced. For financially comfortable people like us, this is just a funny quirk of the immigration system and yet another form to fill in; for others, it can pose a serious barrier to the life they would otherwise be entitled to. The mere fact that the possibility of immigrants becoming a “public charge” to the U.S. is considered in immigration applications at all, which it has been for centuries, should end. Biden could be the one to end this.

Borders are a tragedy multiplier. People whose family members are sick or dying abroad must navigate the physical and metaphysical borders put up by the U.S. in addition to the pain of their loss and suffering. Workers who leave their families behind in the hope of earning enough to provide them a better life can’t visit the ones they’re toiling to support. The misery of poverty becomes the misery of separation, too. Throw a global pandemic into the mix, and you have a true nightmare.

It doesn’t have to be this way. Borders are by nature arbitrary and vicious, and America’s enforcement of its borders is exceptionally so, from letting immigrants die in the desert and setting up “checkpoints” miles from any border or shoreline to creating byzantine and expensive bureaucratic systems that keep immigrants out—or, as in the case of ICE’s new requirements for students, force them to leave after they’re already in. We cannot expect the Biden administration to abolish borders, and the American public is certainly not on board with that idea, either. But there is still much it could do to reinvent the immigration system, and it will take much more than reversing the damage of Trump.