As COVID-19 slowly fades from the news headlines, immigration numbers are projected to continue to rebound in 2023. The Pew Research Center reports, “monthly encounters between US Border Patrol agents and migrants attempting to cross into the United States at the US-Mexico border remain at levels not seen in more than two decades, according to the latest available government statistics.”
However, the potential to improve immigration policies will be a challenge as Congress starts 2023 divided due to a Republican-led House of Representatives and a Democratic-led Senate. Looking ahead, here’s what we’re keeping an eye on for 2023.
New USCIS application fee increases could take effect as early as May 2023. USCIS is required by federal law to review its immigration fee structure every two years, which could result in fee increases. However, new fee increases have yet to be introduced since 2016. USCIS relies heavily on filing fees for agency funding, and the cash-strapped agency is facing staffing challenges and increasing application backlogs. USCIS Director Ur Mendoza Jaddou has stated that the new fee structure could help the agency to manage the workload and improve customer service.
USCIS’s fee proposal, issued in the first week of January 2023, promises to keep costs low for low-income immigrants and naturalization applicants. However, the new fee structure will significantly increase costs for most employment-based visas, green card applications, and family-based visas. The proposed fee increases include the following:
- 130% increase for green card applicants as the fee adjusts from $1,760 to $3,500
- Removal of conditions application will increase by 76%, from $680 to $1,195
- The fiance visa petition will increase by 35% from $535 to $720
- A 19% increase for citizenship applications, from $640 to $760
- Optional work and travel permit forms, which have been free as part of the green card application, will now incur separate fees.
- Children’s applications will no longer be discounted. A US citizen sponsoring their spouse and two stepchildren could pay more than $10,000 for a marriage green card application.
Before any fee increases can take effect, USCIS must follow the Administrative Procedures Act to enact any significant changes to its services and fee schedule. As part of the Act, a 60-day comment period must occur after publishing the proposed rule. After the comment period, USCIS can modify or withdraw the proposal. A final rule could be published as quickly as 30 days after the comment period. The USCIS fee schedule will only change once a final rule is ultimately published and goes into effect.
In October 2022, the Biden Administration issued a final rule to preserve and codify the Deferred Action for Childhood Arrivals (DACA) program. However, shortly after, a federal judge ruled that the program could temporarily continue, but new applicants could not apply.
The DACA program has faced legal challenges since its inception in 2012. A 2021 court ruling stated that the DACA program is unlawful because it was created as part of a memorandum written by former Department of Homeland Security (DHS) Secretary Janet Napolitano and not by the formal rulemaking process, which requires public “notice and comment.”
In 2022, the Biden administration revised the program by putting it through the formal rulemaking process to increase the odds of satisfying the legality concerns. Unfortunately, a federal apparel court affirmed the 2021 ruling but ordered a review of the program revisions. As of 2023, a date has yet to be set for additional hearings to confirm DACA’s future, long-term status.
Currently, you are still eligible for DACA if:
- You were granted DACA before the July 16, 2021, court decision
- You continue to renew your DACA status on a timely basis. You may also request and receive advance parole.
USCIS will continue to accept first-time applications for DACA and employment authorization, but the July 2021 court order prevents USCIS from processing or approving these applications. Filing despite the court order may be advantageous because applications will already be in UCIS’s system if the ruling changes.
In December 2022, the Supreme Court ruled against the termination of Title 42. However, DHS from preparing for its eventual end with the return to processing noncitizens under Title 8. Under Title 8, those arriving at the border illegally can be removed without their case being decided by an immigration court. However, if a migrant wants to claim asylum, they are interviewed by an asylum officer before removal or deportation.
Throughout the Biden administration, Title 42 has continued to be a cause for controversy. The Trump-era order was designed to prevent an influx of COVID into the US by making it easier to expel migrants at the border. Since then, the Biden administration has defended and used the order to deport more than 1 million migrants. The Biden administration has, however, been working to end it since 2022 and is preparing for the future of immigration after Title 42 in 2023.
According to the Pew Research Center, “In the first months of the COVID-19 pandemic in the US, the Border Patrol relied heavily on Title 42 to expel most of the migrants it encountered at the border. But that pattern has shifted more recently under the Biden administration. In November 2022, about two-thirds of all migrant encounters (68%) ended in apprehension under Title 8, while around a third (32%) resulted in expulsion under Title 42.”
New border enforcement actions released by the Biden Administration in January 2023 promise to improve border security, limit irregular migration, and create safe and orderly processes for people fleeing humanitarian crises.
The new measures include:
- Allowing migrants from Nicaragua, Cuba, and Haiti to enter the US by air and remain for up to two years as long as they have a US citizen financial sponsor. A similar plan for Venezuelans was announced in October 2022, leading to a 90% drop in migrants arriving at the border.
- Quick deportations and a potential five-year reentry ban for those who enter illegally at the US-Mexico under Title 42.
- Initially, for those seeking exceptions from Title 42, noncitizens can schedule appointments to present themselves at ports of entry through the CBP One mobile app.
- Extending and improving expedited removal under Title 8 for those who cannot be processed under Title 42. These efforts include surging personnel and resources and enrolling individuals under the asylum processing interim final rule published in March 2022.
These new measures come at a time of 2 million illegal border crossings in 2022 and reports of record-breaking migrant deaths, many due to drownings. President Biden admits the changes won’t “fix our entire immigration system” and will need Congress’s help for a broader solution.
In early January 2023, the US Supreme Court denied an attempt to reinstate the 2019 revision of the public charge rule. The lawsuit by Arizona stemmed from the Biden administration’s decision to withdraw the rule in March 2021. Last June, the Supreme Court declined to take up a previous attempt to keep the rule intact. The 2023 Supreme Court decision could mean the end of further efforts to revive the Trump-era policy.
Public charge, an immigration guideline determining whether people can be denied citizenship based on their likelihood to use government benefits in the future, was a contentious topic during the former Trump administration. An update to the public charge guideline went into effect on December 23, 2022, and impacts how USCIS officers adjudicate applications.
Under the final rule, the federal government will only consider participation in the following as a public charge:
- Cash assistance programs, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families, and state, local, and Tribal cash assistance to pay for basic needs such as rent, food, and utilities.
- Long-term government assistance for institutionalization, including that provided in a nursing home or mental health institution. Long-term institutionalization at government expense would be the only category of Medicaid-funded services to be considered in public charge determinations.
All other benefits – including SNAP/food stamps, school lunch programs, WIC, rental assistance, healthcare, pandemic relief, unemployment benefits, and housing – are not considered in the public charge test and do not affect immigration applications.
According to Commerce Secretary Gina Raimondo in an interview with Axios, the tight labor market is driving inflation, and an immigrant workforce could help ease the market pressure. An article in Foreign Affairs agrees, stating that US policymakers could “expand immigration for both skilled and less skilled workers to boost the supply capacity of the US economy. More immigration would help meet today’s excess labor demand, which would limit wage and price growth over time. In the short term, expanding the number of H-1B visas for skilled professionals and H-2B visas for seasonal nonagricultural workers would help employers overcome this acute labor shortage. In the longer term, doing so would also help cool inflation.”
Foreign Affairs authors also speculate that “expanding the H-1B and H-2B visa programs would immediately ease US labor shortages, which make it more costly to produce goods and provide services—cost increases that companies pass on to consumers in the form of higher prices. For decades, demand for H-1B visas has far exceeded supply. In the 2022 fiscal year, 308,613 people sought H-1B visas before the US government stopped accepting applications. The low cap on H-1B visas constrains not just the US labor supply but also US productivity growth.”
There are no plans to increase employment-based visa caps in 2023. But, the proposed USCIS fee increases might help improve capacity, technology, and staffing, enabling faster processing times for current applicants. The agency aims to adopt new cycle times for processing cases in no more than six months by the end of the 2023 fiscal year.
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