Biden Advocates More Legal Pathways To Reduce Illegal Immigration

In a declaration at the Ninth Summit of the Americas, the Biden administration proposed to expand legal pathways to discourage illegal immigration to the United States. The declaration and accompanying policy statements recognize that attempting to end illegal entry through enforcement alone has failed for half a century.

The Declaration: On June 10, 2022, the United States, Canada, Argentina, Brazil and more than a dozen other nations issued the “The Los Angeles Declaration on Migration.”

The leaders of the countries at the summit stated in the declaration: “We . . . reiterate our will to strengthen national, regional, and hemispheric efforts to create the conditions for safe, orderly, humane, and regular migration and to strengthen frameworks for international protection and cooperation. . . .

“We affirm that regular pathways, including circular and seasonal labor migration opportunities, family reunification, temporary migration mechanisms, and regularization programs promote safer and more orderly migration. We intend to strengthen fair labor migration opportunities in the region, integrating robust safeguards to ensure ethical recruitment and employment free of exploitation, violence, and discrimination, consistent with respect for human rights and with a gender perspective. . . .

“Strengthen and expand temporary labor migration pathways, as feasible, that benefit countries across the region, including through new programs promoting connections between employers and migrant workers, robust safeguards for ethical recruitment, and legal protections for workers’ rights.”

The Biden administration framing the migration issue (correctly) as regional has encouraged other countries, including Spain and Canada, to assist in offering solutions, including by providing visas to more workers.

U.S. Policies: A White House Fact Sheet detailed new U.S. policies in conjunction with the declaration. In some cases, the policies are not new but restore or supplement recent or existing measures. These include adding to current U.S. visa categories and admitting individuals as refugees or via parole.

The White House Fact Sheet states:

• “The United States will launch the development of a $65 million U.S. Department of Agriculture (USDA) pilot program to support U.S. farmers hiring agricultural workers under the H-2A program. In collaboration with other agencies, USDA is exploring a multi-year pilot program funded by the President’s American Rescue Plan to provide grants to agricultural employers that hire farmworkers from Northern Central American countries under the seasonal H-2A visa program and agree to additional protections to benefit both U.S. and H-2A workers. . . .
• “The United States will provide 11,500 H-2B nonagricultural seasonal worker visas for nationals of Northern Central America and Haiti. . . .
• “The United States will commit to resettle 20,000 refugees from the Americas during Fiscal Years 2023 to 2024. . . .
• “The United States will increase resettlement of Haitian refugees. . . .
• “The United States will resume and increase participation in the Haitian Family Reunification Parole Program. . . .
• “The United States will resume the Cuban Family Reunification Parole Program(CFRP). . . . CFRP provides a safe, orderly pathway to the United States for certain Cuban beneficiaries of approved family-based immigrant petitions.”

More Workers or More Restrictions on Hiring Workers?: Admitting more temporary workers would reduce the number of people who choose to enter the United States unlawfully. National Foundation for American Policy research found admitting more Mexican farmworkers via the Bracero program reduced illegal entry (apprehensions) at the border by 95% between 1953 and 1959.

The summit declaration and White House fact sheet advocate admitting more workers. However, other Biden administration policies appear to make it more complex or expensive to employ temporary workers, which could result in fewer workers being admitted to the United States.

U.S. employers view the H-2A category for agricultural workers as problematic and are unhappy with a proposed Biden administration H-2A regulation. The U.S. Apple Association criticized the rule: “US Apple believes this rule is misguided and will create additional administrative burden and cost to an already costly program. . . . If this rulemaking does go forward it will triple or quadruple the filings the Department receives annually . . . while costing growers more in application costs and providing very little benefit to a shrinking U.S. agricultural workforce. This program is critical to the apple industry with more and more growers entering the program each year. However, it is expensive, bureaucratic and out of touch with the realities of today’s production agriculture.”

For those who think the problem is that H-2A workers are underpaid, note that on December 9, 2021, the Department of Labor announced it fined a Florida beekeeping company after it paid H-2A workers more than U.S. workers: “Big River Honey of Gulf County paid $7,265 in civil money penalties after the division cited several violations, including: Advertising multiple requirements for U.S. workers, but not applying the same conditions to the H-2A workers. Paying H-2A workers a higher rate than corresponding U.S. workers doing the same jobs.” (Emphasis added.)

The best reforms for H-2A, H-2B (nonagricultural seasonal workers) and any new visa category are to increase portability for workers and accessibility for employers. That would provide better recourse and more options for workers in difficult employment situations. Forcing immigrant workers to be without legal status, which happens when legal visas are unavailable, is the least likely way to improve the well-being of U.S. or foreign workers.

Analysts note legal visa categories should not be judged against an unattainable state of perfection, but against the alternative of the hundreds of men, women and children who cross the U.S. border and die each year because legal options are unavailable.

Anti-Smuggling Efforts: The White House Fact Sheet announced new anti-smuggling enforcement efforts: “The President will announce a first of its kind campaign, unprecedented in scale, to disrupt and dismantle smuggling networks in Latin America.”

A recent National Foundation for American Policy (NFAP) analysis should temper expectations a new Department of Homeland Security (DHS) anti-smuggling initiative will produce lasting results. “The low barrier to entry to become a human smuggler is a reason for pessimism that U.S. law enforcement could ever succeed in ending or significantly curtailing human smuggling,” according to the NFAP review of the academic and law enforcement literature on human smuggling. “It takes few assets to become a smuggler, and some prominent smugglers are even teenagers. The low barrier to entry for human smuggling is a global phenomenon.”

DHS notes stricter immigration enforcement has increased human smuggling. Today, approximately 95% of unlawful border crossers employ smugglers compared to 40% to 50% in the 1970s.

The Biden administration deserves credit for giving a central role to legal pathways for work and humanitarian migration to relieve misery and reduce illegal immigration. However, reducing illegal entry by a significant amount will require a larger number of visas, including for nonagricultural workers, and more refugee slots to assist those fleeing persecution and dangerous conditions.