Rishi Oza
By Rishi P. Oza
The pace of change that has been occurring on both the state and federal level in the field of immigration is dizzying. The recent sunset of COVID-era Title 42 rules led to a media frenzy of the expected waves of migrants crashing upon the southern border, which in turn have led to several state-level rules that have made immigration the hot button political issue of the summer. The passion that surrounds the immigration debate has resulted in federal and state-level action, the wisdom of which are debatable.
For starters, Title 42 was a policy that made the expulsion of migrants from the United States easier by citing to the public health risk associated with the pandemic. Because the federal government ended the pandemic designation associated with COVID-19, by rule, the regulations associated with Title 42, including the ability to prohibit individuals from entering the United States, also lapsed. As a result of the expected migrant surge, the Biden Administration proactively sent 1500 active-duty troops to the US-Mexico border in hopes of freeing up the ability of Customs and Border Patrol officers to handle the processing of these individuals.
President Biden also put in place various policies to try to stem the flow of illegal border crossers, including the requirement to schedule an appointment through the CBPOne app and a requirement that any individuals seeking asylum must first show they applied and were rejected from third-party countries. These steps were coupled with increased options for humanitarian parole for individuals from Haiti, Venezuela, Nicaragua and Cuba. Biden also has sought to beef up staffing levels by adding asylum officers and immigration judges. Ultimately, the challenges at the southern border are a numbers game with the government often unable to match the sheer breadth of migrants desperate for a better life. For example, on Monday, May 8, 2023 and again on Tuesday, May 9, nearly 10,000 individuals were apprehended by Border Patrol officers at the US-Mexico border – a sustained enforcement approach to such sheer numbers requires a huge investment in terms of time and money, of which Republicans and Democrats have been unable to agree.
As a result of Washington’s paralysis, states have begun enacting laws that have an outsized impact on the immigration landscape. Governor Ron DeSantis of Florida, who has not-so-subtly made preparations to run for the presidency in 2024, recently passed a sweeping immigration bill that promises to have a seismic impact on the state’s immigrant population.
Some changes required by FL Senate Bill 1718 include:
• Requiring employers with over 25 employees to use E-verify to determine if an employee is eligible to work in the United States.
• Mandates that hospitals ask questions about a patient’s immigration status during the admission and intake process and submit reports to government entities about providing care to those without lawful status.
• Penalizes individuals caught transporting those without lawful immigration status (including family members, friends and co-workers) with up to 15 years in prison.
While the legality of these rules remains to be seen (a court challenge is all but guaranteed), the somewhat draconian nature of some of the bill’s penalties provides insight as to what DeSantis considers a winning issue. Proponents argue that the bill discourages those without lawful status from coming to Florida; opponents argue that the bill fails to acknowledge the huge impact that migrant workers (legal or illegal) have on Florida’s agricultural and construction sectors and will hurt employers already struggling with an overly tight labor from finding much-needed labor. The bill does not go into effect until July 1, 2023.
Biden has long-been criticized as failing to engage meaningfully on the immigration issue, an assessment that is not entirely unwarranted. Though the pandemic did significantly impact the processing times associated with the visa adjudications process, practitioners saw the wait times for routine visas double and triple from pre-pandemic levels. For example, spousal based green card applications (commonly known as the Adjustment of Status process) routinely took four to five months to complete prior to the pandemic at both North Carolina USCIS offices in Raleigh-Durham and Charlotte; this is compared to the 18 – 24 months processing times that practitioners now commonly advise individuals to wait before expecting to receive their green cards.
Biden ran for the presidency citing a return to normalcy and a lowering of the temperature with respect to government; sadly, his government has failed to deliver on efficiency and accountability with some consulates worldwide still backlogged by over a year with respect to processing simple visitor visas. More pressing visas, such as immigrant workers are waiting years to immigrate to the United States, despite widely accepted economic data showing that the United States has millions of unfilled jobs throughout the economy.
These delays and inefficiencies are simply unacceptable and when coupled with media images of an overwhelmed border patrol, the current administration appears slow-footed and incompetent in responding to an otherwise foreseeable crisis. If Biden is serious about beating back a Republican challenge in 2024, he must engage on the immigration issue in a real way, lest he cede the issue entirely to Republicans. Although the real keys to lasting reform sit in the halls of Congress, the President’s inability (or unwillingness) to address the immigration issue head-on leaves him vulnerable to an already loud chorus of accusations that he is too old and senile to meaningfully address what is a serious political issue. Much time exists between now and November 5, 2024, but history has taught us that whole-scale immigration change takes time, capital and most of all, political courage. The first two are dwindling for Biden and what remains to be seen is whether he has enough of the third to make it work regardless.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. [email protected]
