Long-term undocumented immigrants are gaining traction on demands for legal work permits amid a strong labor market and easier access to employment for newly arrived asylum seekers.
The Biden administration on Thursday greatly expanded work permits for a large swath of immigrants, including asylum seekers and green card applicants.
While the administration has resisted calls to act on legal work for the nearly 11 million undocumented immigrants who don’t fit those categories, officials say they have received the message and understand the issue.
“I’m not in a position to make any announcements today. I don’t think that we have ignored the voices domestically that have spoken of the fact that we have undocumented individuals in the United States who have been undocumented and without work authorization for years and years, and yet people who cross the border and make a claim of asylum can proceed for authorization within 180 days after filing their asylum claim,” Homeland Security Secretary Alejandro Mayorkas told reporters Friday.
“I don’t think we’re ignoring that. The president on his very first day in office tried to address legislatively, hoped to address legislatively, the condition of the undocumented in this country. So I don’t think we’ve ignored it at all, but Congress has not acted.”
That inaction is weighing on large cities where long-term undocumented immigrants often watch newer arrivals wait just weeks or months for paperwork that’s been out of their reach for decades.
Chicago Mayor Brandon Johnson (D) on Thursday put his weight behind the push to expand permits to the undocumented, citing economic needs and family unity.
“This is the city that works, and whether it is a new arrival or a long-term undocumented Chicagoan who has lived in our city for decades, immigrant communities are working communities,” said Johnson.
“I’m proud to stand here today with the business community and labor partners as we call for work permits so that families can stay together and we can continue to grow our local economy.”
But for undocumented immigrants — as opposed to asylum applicants — the legal path to a work permit is convoluted and sometimes doesn’t exist at all.
While both groups often get thrown into the same basket, their legal status is radically different.
Asylum applicants are foreign nationals who requested asylum on U.S. soil or at a port of entry, regardless of how they entered the country, and whose asylum claim is still subject to approval or denial by immigration authorities.
Undocumented immigrants are foreign nationals who entered the United States, legally or illegally, and either overstayed a legal status such as a tourist visa or simply were never technically admitted into the country by a U.S. official.
The undocumented population grew from 3.5 million people in 1990 to a high of 12.2 million in 2007, to about 10.5 million in 2021, according to the Pew Research Center.
Whether that number has grown since then is a matter of debate: Some research organizations such as the Migration Policy Institute pair people without official U.S. paperwork and those with some non-permanent statuses into the “unauthorized” category.
The distinction in terms of work permits, however, is clear. Asylum applicants can apply for a work permit after a certain period and are legally in the country until and unless their application is denied.
Over the last decade, migrants have more and more often chosen to turn themselves over to the Border Patrol and apply for asylum, creating that distinction between long-term undocumented and new arrivals.
That dynamic has given new political significance to a community that’s used to living in the shadows, further spurred by incidents including the recent death of six immigrant workers in the Francis Scott Key Bridge collapse in Baltimore.
“The country and the news cycles have been all occupied with what’s happening on the border. And you know, what happened on the bridge in Baltimore, it’s just another reminder of, you know, in addition to what’s happening at the border, and millions of people are impacted by immigration and immigrants are part of our families, our communities, our schools or our workplaces, and this is an opportunity for the Biden administration to use existing authorities,” said Marielena Hincapié, an immigration scholar at Cornell University Law School.
Advocates want the Biden administration to more aggressively use tools such as parole in place or cancellation of removal, existing authorities that allow the executive to give a sort of clean slate to undocumented immigrants who otherwise have no path to regularization.
Only certain undocumented immigrants are eligible for those programs, mainly those who have direct relatives who are U.S. citizens.
The Biden administration has made use of some of the executive authorities available, particularly those that are less at risk of litigation and has left the door open for further action.
“On his very first day in office, President Biden introduced a comprehensive immigration reform proposal that would have addressed our broken immigration system. While the previous Administration demonized immigrants and sought to take away protections from millions who have lived in the United States for years, our Administration has reinstated protections and support for immigrants — and in many instances — expanded them,” said White House spokesperson Angelo Fernández Hernández.
“The Administration remains committed to ensuring those who are eligible for relief can receive it quickly and to building an immigration system that is fairer and more humane. As we have said before, the Administration is constantly evaluating possible policy options.”
The administration has made aggressive use of Temporary Protected Status (TPS), a program that allows people from certain designated countries to live and work in the United States but does not create a pathway to permanent residence and ultimately citizenship.
The administration has also implemented deferred action for workers involved in labor disputes, to prevent undue use of immigration threats in work relationships.
“The Biden-Harris Administration understands the need for noncitizens to be able to lawfully support themselves and their families while they are pending immigration proceedings so as not to be a burden on the communities in which they reside,” a Department of Homeland Security spokesperson told The Hill.
“We have taken many steps to make sure that individuals who are eligible for employment authorization are informed, and, where possible, to accelerate the processing of employment authorization documents (EADs) to ensure that applicants receive them promptly.”
The administration is also working to teach local authorities who is and isn’t eligible to apply for EADs, because the convoluted nature of the system means eligible individuals are often not aware that they can apply, or how to apply for work permits.
“One of the things that we have been working on with mayors, including Mayor Johnson and others, is making sure that they understand who is resident in their shelters and other facilities, and what their eligibility for work authorization is,” said Mayorkas.
But even federal officials like Mayorkas — who has run Homeland Security for three years and previously worked for seven years at the department, including running United States Citizenship and Immigration Services (USCIS) — say the system is too convoluted.
“I was the director of USCIS and that doesn’t make me an expert in all of the legal intricacies of an incredibly labyrinthian immigration system. And if I haven’t said that that immigration system is fundamentally broken, allow me to say that now,” said Mayorkas, who often publicly states the immigration system is fundamentally broken.
But advocates and scholars say the administration could do more, even under threat of litigation.
“This is an opportunity for the Biden administration to go on offense, and that if they are blocked by a court on this because Texas sues, then to point the finger at who’s responsible for that, which is Texas once again,” said Hincapié.
“But they have to be able to show immigrant communities and voters that they’re willing to go out, not even on a limb, but that they’re willing to move forward towards providing relief and solutions.”