A New Pathway Forward for
the United States:

The United States has a fundamentally failed approach to immigration, one without working legal immigration channels and a system that pushes people into cruel options that spur chaos.

With less than a month until the chaotic and cruel Title 42 policy ends on May 11, we are at an inflection point. The Biden administration should use its authority to take action to create a diverse set of legal immigration pathways, as well as work with Congress where needed to build a prosperous, secure, orderly, and humane approach to migration. In the ongoing debates over how the U.S. should seize the opportunities and meet challenges around migration and at the U.S.-Mexico border, a massive component is missing from this conversation: the critical need to build legal pathways – even though it’s the key to solving many of our border problems.

The American public supports immigration and pro-immigrant policies, but most Americans do not understand that there are in fact vanishingly few legal avenues for most people in the Western Hemisphere – and that what few pathways existed prior to the past few years were eviscerated by the Trump administration. Creating functioning legal pathways – for work, refuge, asylum, family-based immigration and more – is best for Americans here today, best for immigrants, and the single most important step to cut down on the very pressure and perception of chaos at the border that Americans say they want to see change.

The current system built so heavily upon deterrence and disqualification, and without real pathways, is the wrong approach. We’ve seen that when individuals and families are given the option of a legal and orderly channel, they consistently choose it over crossing without authorization. Overwhelming evidence proves that legal channels work to decrease chaos and improve order.

America is at its best when we welcome those in need of protection, and those who want to come to our country to work, study, or be reunited with their families – regardless of where they’re born, their religion, or their race. There is an incredible opportunity to seize. That means building real working legal immigration avenues, a refugee system for the Western Hemisphere, safe and robust in-country processing, avenues so that people can come temporarily to work or for longer-term employment, and clearing backlogs so that people can reunite with family members who are U.S. citizens or residents, all while protecting the flow of cross border commerce and border communities with family ties across multiple countries.

While actually creating legal pathways is the most important thing this administration can and must do, it alone will not solve all of the immigration issues our country faces. But without this step, there will be only bad options. This memo lays out the problems with this fundamentally failed approach and the proposed solutions.

The Problem:
A Failed System, With Effectively No Legal Pathways

The United States has a fundamentally failed system when it comes to managing forced global migration, border security, and immigration broadly – a system that for decades has relied upon the use and threat of deterrence, detention, and deportation as the primary or at times only tactic. Despite the myth that there are plentiful legal ways to come to the U.S., for the overwhelming majority of people in the Western Hemisphere, there are effectively no working, available, safe and legal pathways. The few legal pathways that existed prior to the Trump administration have become even more restricted and insufficient as the number of displaced people has continued to rise.

Worldwide, forced migration has reached historic levels, with 100 million displaced people today. This number is unlikely to decline in the coming decades due to an increase in war and armed conflict, political instability, violence, persecution, and the climate crisis. In the Americas, deep instability in countries including Venezuela and Haiti has driven forced migration – with nearly 20 million people displaced – yet the region accounts for less than 10% of all global refugee resettlement.

In a time in which authoritarianism around the globe is fueled by anti-immigrant demagogues who seek to weaponize the plight of immigrants and those seeking refuge for their own political gain, we can either find humane and politically resilient approaches to the challenges presented by forced migration to build legal pathways, or xenophobia will only become a more potent weapon. Within our fundamentally failed paradigm, the images of people forced to cross between ports of entry will not only be used to fuel more crackdowns on immigrants, but will be used to attack the legitimacy of any government whose approach is not the near-complete elimination of all immigration avenues and attacks on the basic dignity of immigrants.

This cycle extends even to the plight of children in need. For the last decade, every single time there has been a crackdown on the ability for adults and families to access legal migration channels, there has also been a subsequent surge in children crossing the border between ports of entry the following year – a terrible humanitarian consequence that is in turn weaponized for political demagoguery. In a system in which attempting to apply for asylum is the only viable option, but where every attempt to cross the border is treated by the political class as an inherent negative and failure, the result is a system in which governments will only pursue increasingly hardline deterrent policies designed to make life so difficult, and migration so impossible, that even people facing the most severe threats will not attempt to come. That is a tragedy for them and for America.

Today, exceedingly few temporary and seasonal work permits are available to anyone not from Mexico, and permanent employment options are incredibly limited. Our family-based visa system is functionally unusable with backlogs that mean people have to wait as long as a decade to have any chance. Until January of this year, in-country processing did not exist on a meaningful scale. The entire Western Hemisphere refugee program is dwarfed by the realities on the ground, having never resettled more than 10,000 people in an entire year. All the while, U.S. ports of entry have been nearly entirely closed off for processing for over three years.

These restrictions are part of a broader pattern in which the United States’ current immigration system is substantially more restricted than it has been historically. Compared to our historical averages, the U.S. actually currently naturalizes at a much lower per capita population than we have at many times in our history. Moreover, compared to large countries of similar wealth, our immigration levels have fallen drastically and are now actually below their average. We are falling behind. We are losing out.

In the absence of these legal channels, what remains has been an exceedingly restricted, cruel, and chaos-causing asylum system that largely exists only for those able and willing to attempt the dangerous journey of crossing between ports of entry. We have created a system – through bad policy design and a cruel status quo – in which the only option for nearly everyone seeking the legal right to apply for asylum is to force them to do so between ports of entry. Title 42 has been the foundational border policy for the last three years and has super-charged this awful dynamic. This is bad policy and awful politics. Title 42’s chaotic deterrence policies have provided over the past three years: treating vulnerable individuals and families cruelly, and creating huge incentives for them to pay the cartels, while causing political headaches and a constant stream of negative news coverage for this Administration.

The Biden administration’s failure to make a clean break from Title 42 immediately upon taking office in 2021 was a tragic mistake; today, the Administration faces real operational challenges at the border while also fending off constant partisan attacks. At the same time, many people who are focused on the humanitarian plight of vulnerable populations seeking refuge have rightly confronted the Administration for perpetuating Title 42’s serious harms. In short, by failing to end the devastating Title 42 policy, the Biden administration is losing on both the policy and the politics. And as we approach May 11th and the end of Title 42 and beginning of their new asylum disqualification rule and transit ban, this dynamic will remain, and could become even worse, for as long as the United States fails to focus seriously on solutions that include more safe and legal pathways.

Evidence makes clear this chaos and political turmoil can be prevented. During the harsh enforcement of Title 42, exceptions to the policy allowed certain demographics to seek access to legal migration channels at ports of entry in an orderly and safe way. Unsurprisingly, the data makes clear that people chose the safe and legal path when given the opportunity to do so. These new parole programs serve as a painful reminder that people want to come into our country through legal channels above all else. Yet unfortunately, until January of 2023 and the very welcome creation of the new parole programs, they had taken exceedingly few steps to build legal immigration pathways affirmatively.

The right to apply for asylum is an absolutely essential emergency protection enshrined in domestic and international law, and we must protect it. But today, we have created an immigration system akin to a healthcare system that tries to care for people by eliminating everything except emergency rooms.

This is both misguided and entirely unsuited for our current realities, where people who are forced to flee their homes may not meet the strict criteria for asylum but want, need, and deserve to come to the U.S. We should welcome them and pursue policies that keep people safe, while keeping families together.

This new approach to building working legal pathways should include:

• Create Modern, Working Migration Pathways for Employment
  The Administration has the ability to ensure that seasonal and temporary work respects workers’ rights, is easily accessible for employers, operates across the hemisphere, and can operate at an expanded scale to match demand with increased labor needs in the United States. This will not only reduce pressure at the border, but can also help to fill gaps in the U.S. labor force and help to reduce inflation.
• Improve Family-Based Immigration
  Our family-based visa categories for most countries in the Western Hemisphere are backlogged, and the Administration and Congress must make additional efforts to both reform our immigration laws and improve the implementation of existing programs, including through the creation of new administrative pathways for family reunification. Clearing backlogs will immediately create incentives for people to use these currently non-functioning channels.
• Expand Parole Pathways and In-Country Processing
  The Administration's recent announcements for parole pathways for people from Cuba, Haiti, Nicaragua, and Venezuela (and previously Afghanistan and Ukraine) are a critical step in the right direction, both for those in need and to reduce pressure at the border. These programs are not perfect, but they could provide up to 500,000 people with an orderly and humane process to apply for relief in the U.S. The Administration should vigorously defend these existing programs, improve their function, and build upon this foundation to expand to other populations in need. Moreover, the Administration should ensure that people who settle in the U.S. through sponsorship are supported. The United States should build and successfully implement the Central American Minors (CAM) program.
• Build a Robust Refugee Program for the Western Hemisphere
  For those who cannot stay in their country for fear of persecution, we must have a safe third-country option. The United States should dramatically expand the formal refugee program, as well as private-sector sponsorship, for people from the region. This would allow for protections for those in transit as well.
• Substantial Processing and Operational Improvements at Ports of Entry
  For the past three years, ports of entry have been closed for all but the most urgent humanitarian processing for migration pathways. The Administration should not only seek to improve the CBOne app, but increase staffing and processing capacity to meet the needs at the border. This can be achieved through Administrative action and Congressional funding.
• Protect Asylum as a Legal Pathway
  With the above steps, we can reduce pressure at the border to ensure people have a right to due process when applying for asylum. The United States must ensure people have legal representation and protections in the U.S. during this critical time. This ensures a timely adjudication process with a fair and final decision.
• Support and Welcome People Upon Arrival
  We should seek ways to ensure people’s success once they are in the United States. That includes rejecting incarceration as a tool and instead better resourcing NGOs to welcome people and support them at their destinations in the interior using proven methods like family case management and legal representation. Those awaiting their hearing should get a timely work permit and the ability to support themselves and work legally.