The state of U.S. immigration

Immigration is once again front and center in the national debate. Approximately 65,000 Afghans have been evacuated to the United States after the Taliban took control of Kabul. An estimated 10,000 migrants clustered just south of Del Rio, Texas, this fall, hoping to enter the U.S.; many of these migrants are Haitians. U.S. law allows for temporary protective status (TPS), which President Biden extended to Haiti, says the Law School’s Fernando Chang-Muy. But would-be immigrants from Haiti can only claim TPS from Haiti, which doesn’t help migrants who went to Central America to find jobs before coming to the U.S. “You can’t claim TPS if you’re in Tijuana,” Chang-Muy says.

Immigration is extremely complicated, says Chang-Muy, who teaches courses on immigration in the Law School as well as the School of Social Policy & Practice. “It’s been said that the immigration code competes with the tax code in complexity and craziness,” he says. “So, when people say that we need to overhaul immigration law—agreed; but we need to talk about it in segments and break it up into parts. Like which part? The way that we bring in families? The way that employers can bring in foreign employees? The ways we give asylum?”

People can come into the U.S. for a short-term, for example as international students at Penn, or for a long-term period (either sponsored by family or work), with refugee status, or they can “come in winning the lottery,” Chang-Muy says. “The analogy I like to make is that to come into a room, you need a door and a key. To come into this country, you need a passport from your country of origin, and you need a visa.”

Immigrants can come into the U.S. for a job, sponsored by their prospective employer. If there is a nurse shortage, for example, hospitals might sponsor English-speaking nurses to come from another country. Or if the school district needs teachers of Spanish, they might sponsor educators from Spanish-speaking countries, says Chang-Muy. 

In regard to family reunification, “someone here can sponsor someone there by filling out some paperwork,” Chang-Muy says, but there are constrained categories of relationship eligibility. “The only types of people here who can sponsor the people there are mother/father, brother/sister, husband/wife or child over 21,” and the sponsor has to be a U.S. citizen or green card holder. 

Furthermore, the U.S. has a ceiling in the numbers of people it admits in each category, with preference given to closer family relations. “So we only give out 40,000 ‘keys’ or visas for mother/father, 40,000 ‘keys’ for brother/sister,” Chang-Muy says. There are also country quotas, meaning that immigrants from countries with the highest number of people wanting to come to the U.S.—for example, China, Mexico, India, and the Philippines—have a significant wait time. “What if I want my brother to come in from the Philippines? It’s backlogged 12 years. If I filed that application 12 years ago, today in 2021, he might be coming.”

If there is no family member or job to sponsor them, immigrants might still be able come in as refugees, if they can prove a legitimate fear of persecution or being killed in their country of origin. The refugee system is also on a quota, Chang-Muy says. “We only allow certain numbers every year from overseas to come in. It’s 80,000, more or less; the numbers go up or down. And the world is divided, so let’s bring in 10,000 from Asia, 10,000 from Latin America.”

Chang-Muy believes some aspects of the system should be revised. “When people say, ‘We need to overhaul immigration law; it’s broken,’ we need to understand the law and analyze its categories in order to improve it.” He asks, “Can we raise the number of refugees who are coming in from overseas? If no one wants to come as a refugee from a certain region of the world, can we allocate those numbers over to another part of the world?” Regarding family reunification, “can we expand the numbers of people that come in? Can we think more broadly of what it means to be a family member?”

“The thing to remember is, we need to dissect, break apart, segment immigration law when we praise parts of it or when we criticize parts,” Chang-Muy says. 

During the pandemic, immigration numbers dropped for a number of reasons, he says. First, people may have been more unwilling to travel, to get on a bus when an airborne disease might be circulating. At the border, people have also been denied entry in the name of public health. U.S. immigration law has grounds for inadmission, as well as grounds for removal, or deportation, because of contagious disease. 

“In these days, that’s code for COVID. ‘Public health’ is being used as a reason to stop people from coming in,” Chang-Muy says. But this isn’t anything new. For a long time, an HIV diagnosis was on the list of contagious diseases, he says. The public health caveat has “been in our code for many, many years and in the 1900s was used as a reason to exclude Italians, Irish, and Jews from leaving Ellis Island and entering New York City. Today it’s COVID; tomorrow it may be some unknown disease,” he says.

Immigration also slowed during the pandemic because there was less pull, Chang-Muy says. Jobs dried up. “Word filters down,” he says. “Thanks to technology, people are constantly in touch with each other. They may have been telling their relatives, ‘Don’t bother coming.’ There’s no landscaping, there’s no busboying, there’s no dishwashing, and in fact restaurants are closed.” 

For migrants, sometimes, the push to leave their country of origin overrides the instability of employment availability in the U.S. Before the pandemic, Chang-Muy and law student Adam Garnick went to Honduras to research causes of migration. “What we were seeing were caravans,” Chang-Muy says. He and Garnick talked to the migrants to tell people what they could expect after arriving in the U.S. They told them, “We want to tell you what awaits you: high rent, exploitative jobs. You have to apply for asylum if you want to be a refugee, you have to fill out a 12-page form in English, you don’t get a free lawyer.” Chang-Muy says people thanked them for the information but said, “I’m still going to try to make it because life is so horrible here.”

Most Americans have immigrant heritage, and some may have undertaken arduous journeys. It’s time to remember that, he says. “The only difference between you and me is time. Your folks might have come in the 1600s, and hit a rock in Plymouth. And my family may have just yesterday, gotten off the boat or across the desert or got off the airplane.

“To me,” Chang-Muy says, “one big misconception on the part of the American public is that immigrants, folks from over there, take, take, take and don’t give, give, give.” Immigrants either contributed in their countries of origin—like Afghan refugees that may have worked for the U.S. Army as truck drivers or interpreters—or contribute here in the United States, he says. “We rent apartments, we buy homes, we pay sales tax. We work in agriculture, work in technology. So, if anything, immigrants give and contribute, not just take. Let’s not forget, Einstein was a refugee.”

Fernando Chang-Muy is the Thomas O’Boyle Lecturer of Law in the University of Pennsylvania Carey Law School and a lecturer in Penn’s School of Social Policy & Practice.