Immigration Explainer
- Carrie Stallings
- Oct 28
- 12 min read
Welcome to my six-part series on immigration in the United States! I hope it will be a helpful tool for you as you navigate the confusing and contradictory messages we hear about this topic. I recommend reading the articles in the order listed, but you can do what you want. I'm not the boss of you.
Immigration Explainer (this article)
Let’s face it: either you’re a sentimental sap trying to throw open the borders to whoever wants to come in and suck up all our national resources, OR you’re a hard-hearted bigot who wants innocent children to languish in cages while you get rich off their parents’ labor.
Year after year, politicians campaign on this false dichotomy, keeping things in a state of chaos from which only they, purportedly, can save us. Day after day, reporters, podcasters, and YouTubers feed us more reasons to be mad, our anger serving as their bread and butter. This strategy works because immigration is so confusing. Most of us don’t understand the ins and outs, so we need a shorthand to make sense of it, and public figures are happy to give us that shorthand.
Besides politicians and the bottomless appetite of the news cycle, who really benefits from this false dichotomy? It’s not the moderate voters, continuously disappointed with the choices on our ballots. It’s not the MAGA folks, terrified that a Venezuelan gang member is crouched around the corner, ready to rape their daughters. It’s not the far left, mired in angst about the inherent injustice of America itself.
ICE agents are honored as heroes one day and despised as villains the next. Immigrants are unsure if their case will be processed before the rules change again, separated from their families, afraid to see a doctor for their heart palpitations in case today’s the day they get put in prison for being here.
I believe most Americans want similar things when it comes to immigration: order, security, justice, and opportunity for as many as possible. However, it would be dishonest to act like there is no ideological divide whatsoever. I am happy to admit that I lean toward the ethos of welcome, of a preferential option for the poor and marginalized. I’m not concerned by the changing ethnic composition of the U.S. because I believe diversity is inherently beneficial.
At the same time, I’m happy to give credence to the converse ideology: that limitless charity ultimately doesn’t benefit people, that security is paramount, that homogeneity can be useful as cultural glue. What I’m not happy to give credence to is any sort of underlying attitude of nativism or white superiority. If you believe immigrants are inherently less important or less deserving than you, or that America should remain majority white, I don’t feel the need to find common ground with you on this issue.
But I prefer to assume the best of my readers! So I am assuming that you, like most Americans, are pro-immigrant, but you want immigration to happen in a safe, orderly way that benefits both current American citizens and immigrants. If we want to break away from the false dichotomy that does nothing but fuel political campaigns, we’re going to have to put some work into understanding complex things.
After combing through dozens of .gov and .org PDF files about immigration policy and still feeling totally confused, I realized I needed a schema, a structure, mental hooks to hang all this data on. I could read about refugee caps and credible fear interviews until I was blue in the face, but that didn’t get me closer to understanding the big picture. Neither did all the personal stories about fentanyl overdoses, ICE raids, and Tren de Aragua murderers.
In this series, I will give you a framework for understanding the stories on your newsfeed about immigration. That way, when you hear those compelling anecdotes, you’ll have a place to mentally slot them that doesn’t give you constant whiplash. Let’s start with a metaphor.
Ski America
The metaphor is a ski resort. Even if you’ve never been skiing, surely you’ve seen Dumb & Dumber where Harry Dunne licks the frosty chairlift, so you get the concept.
If you want to go skiing, you need to pay for your lift tickets at the resort’s office or online. Then you need to get your physical lift ticket and either rent some skis or bring your own. Then you hit the slopes. Workers scan the lift tickets to ensure yours is genuine and that it’s valid for the day you’re boarding the lift.
There are also rules: The skier going downhill has the right of way. No line jumping. Don’t ski in roped-off areas. Don’t rock or swing the chair while you’re on the lift. If you break these rules once or twice, you’ll get reprimanded. If you keep breaking them, you’ll be asked to leave. If you don’t leave when asked, presumably someone will forcibly escort you out.
Everything that I’ve described so far could be considered the “user experience”—it’s how the process works for you, the skier. There is also a user experience for immigrants in the United States. Congress passes laws saying how the immigration process is supposed to work, then federal employees implement that process in real life.
How Legal Immigration Works, More or Less
As briefly as possible, I’ll outline that process. A person can legally come to the United States in one of four basic ways. I’ve listed them in order from most common to least common:
Those four ways cover both immigrants (someone seeking to stay in the U.S. permanently) and non-immigrants (someone planning to stay temporarily).
Family sponsorship is the most common way people come. In 2023, 64 percent of new permanent residents were family-sponsored arrivals. A permanent resident (or green card holder) has legal permission to live and work in the country indefinitely. They must file their taxes and are eligible for most federal benefits that a citizen would be eligible for.
However, they do not have a U.S. passport and cannot vote. They can also have their status revoked much more easily than a citizen and have to be more careful about leaving the country. Permanent residency is often a stepping stone on the path toward full citizenship.
A U.S. citizen or permanent resident can petition for a family member to come to the U.S. by filing Form I-130. Citizens can petition for a spouse, fiancée, child, parent, or sibling. Permanent residents can only petition for a spouse or an unmarried child.
When you petition for someone else to come, that makes you their sponsor. You must prove that you have a place for the incoming relative to live and can financially support them. Preference is given to immediate family and underage children, and to people from countries with low rates of immigration to the U.S.
Humanitarian protections have made up an increasingly large category of immigrants in recent years. This includes refugees, asylum seekers, and those on humanitarian parole.
Refugees do not apply to come to the U.S. directly. They have fled their home country because they have been persecuted or fear they will be persecuted due to their race, national origin, religion, political opinion, or membership in a particular social group. They apply for refugee status through the UN Refugee Agency Resettlement in the United States (UNHCR).
The UNHCR interviews applicants and decides who gets refugee status and who will go where. The president, in consultation with Congress, establishes the maximum number of refugees the U.S. accepts each year. That number has varied widely since the modern system was established; the peak was 200,000+ in the early 1980s.
Asylum seekers are essentially refugees—meaning they’ve fled their country in fear for their lives—but rather than go through the UNHCR, they initiate their own application for entry by physically coming to the United States. This process is in accordance with international law established by the 1951 Refugee Convention. An asylum seeker is required to present themselves at a U.S. port of entry and request asylum “affirmatively” using Form I-589.
You can also apply for asylum “defensively” if your initial application was denied or you were caught trying to enter the country illegally. At this point, your case is processed in an adversarial court hearing: DHS prosecutes you for being in the country illegally and you (hopefully with a lawyer’s help) defend your right to stay before an impartial judge.
Humanitarian parole programs are special programs that allow certain people or groups of people to enter the country for a limited period of time for urgent humanitarian reasons or significant public benefit. For example, the Afghan Allies Protection Act allowed tens of thousands of Afghans who had assisted U.S. efforts in Afghanistan to come to the U.S. following the withdrawal of U.S. troops.
“Significant public benefit” could mean, for example, someone is coming to serve as an organ donor or appear for a legal proceeding. Humanitarian parole does not offer a pathway to citizenship or permanent residency unless an adjustment act is passed by Congress that creates a citizenship opportunity for that specific group of people.
The Diversity Visa Lottery is the least common immigration pathway (only six percent in 2023). It’s a program that allows certain people from certain countries (those with historically low rates of immigration to the U.S.) to come. The list of eligible countries changes each year. Winners of the lottery are selected by a randomized computer drawing. To qualify, you have to have a high school diploma or equivalent or have qualifying work experience. In 2023, only 50,000 of these visas were granted out of 9.5 million qualified applicants.
Employer sponsorship is when someone comes to the U.S. specifically for a certain job. They have to get one of five types of work visas, which range from people of “extraordinary ability in the sciences, arts, education, business, or athletics” to certain types of investors who employ at least ten workers. The sponsoring employer must file a Form I-140.
In many cases, employer sponsors must also get a Labor Certification to demonstrate that there are not enough willing and able domestic workers to fill the position, and that hiring the foreign worker will not negatively affect similarly employed domestic workers. Only 140,000 employer visas are available a year, and that number includes the spouses and children of the worker. Sometimes an employment visa can start a path to permanent residence; sometimes it’s just temporary.
In addition to those five employer-sponsored categories, there are H-1B (specialty occupations), H-1A (seasonal agricultural work), and H-2B (seasonal non-agricultural work) visas available. People on these visas are non-immigrant workers; that is, they are coming to work for a designated period of time and not seeking permanent residency.
Ski America: Back Office and Slopeside
At a ski resort, a lot happens behind the scenes. The board of directors, presumably, handles the big-picture decisions: fund-raising, public relations, and so on. They also likely hire the CEO and other high-level employees.
Those high-level employees, and the people they hire and supervise, actually run the resort. Someone figures out how many visitors they need each season to remain in business. Someone decides lift ticket prices for regular weekends and holiday weekends. Someone builds a website, decides whether to rent or buy grooming machines, creates the ski school schedule, and hires and trains additional staff.
For our purposes, the board of directors represents Congress, and the high-level employees represent the federal agencies that carry out immigration policy. Our national immigration “back offices” are 1) the Department of State, 2) the Department of Health and Human Services (HHS), 3) the Department of Justice (DOJ), and 4) the Department of Homeland Security (DHS).
The Bureau of Consular Affairs within the Department of State is responsible for issuing visas. The Office of Refugee Resettlement (ORR) within HHS deals specifically with placing and caring for refugees. The Executive Office for Immigration Review (EOIR) within the DOJ handles court cases for people with immigration violations.
But really, the Department of Homeland Security (DHS) does most of the heavy lifting. U.S. Citizenship and Immigrant Services (USCIS) within DHS is primarily responsible for processing immigrants and non-immigrant visitors. All the forms I mentioned earlier—I-130, I-140, I-589—are filed through USCIS. They administer “coming the right way.”
You could say that employees of USCIS, ORR, UNHCR, EOIR, and the Bureau of Consular affairs are like the ski resort staffers who manage online sales, answer phone calls, and run the office.
DHS’s enforcement arm includes Border Patrol (BP), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). Border Patrol agents monitor the border between ports of entry (where people AREN’T supposed to be crossing) while CBP agents handle traffic and inspections at official points of entry (where people ARE supposed to be crossing). ICE has jurisdiction in the interior of the country, that is, anywhere not in a border zone. BP, CBP, and ICE work to facilitate safe, secure trade and travel and enforce regulations, including immigration and drug laws.
You could say that agents of these three enforcement branches are like the slopeside employees who fit people for skis and boots, scan lift tickets, and patrol the slopes.
The devil is in the details. All these U.S. departments are run by real people. There are time constraints, money constraints, and human factors that are hard to quantify and predict.
At our imaginary ski resort, it’s the same. You, the skier, are at the mercy of how well the office and slopeside employees are doing their jobs. If the website is down, they may already be sold out of lift tickets when you get to the resort. If the person at the equipment desk is busy scrolling on TikTok when they’re supposed to be fitting you for boots, you may spend most of your day schlepping across the base area to exchange ill-fitting boots.
The resort manager is ultimately responsible for all of that. Although he or she must abide by the by-laws written by the board of directors, it’s his or her job to keep the place running, to assign people to deal with problems, and to always keep in mind the resort’s bottom line. The less involved the board is in the day-to-day operations, the more decision-making responsibility falls to the manager.
Our president is like a resort manager. Although he (or she, one day!) must abide by the Constitution and laws passed by Congress, he has considerable authority within those laws to do what needs to be done for the benefit of the country. In the last 35 years, our legislative branch has failed to pass any meaningful immigration laws. This means the executive branch—the president and federal agencies—have taken over immigration law-making, largely through executive orders and internal memos. Even within the same set of laws, different presidents can pull different levers to affect how immigration plays out in the real world.
When There is Trouble in Paradise
Here’s the thing: presidents do have authority to “legislate with the pen” through executive order. However, all executive orders begin with the words “by the authority vested in me by the Constitution and the laws of the United States of America,” or similar language—and for good reason.
If an executive order violates existing laws, it is illegitimate unless those laws are changed by Congress. Similarly, if an executive order violates the Constitution, it is illegitimate unless the Constitution is amended, which requires Congressional approval.
Almost all executive orders contain standard language at the end as well, explaining that executive action is subject to the legal authority of related agencies, the budget approved by Congress, and existing laws.
To monitor the legality of executive action, we have the judicial branch of government. There’s not a perfect parallel to the ski resort, but an in-house counsel would be the closest thing. They make sure the resort is in compliance with external laws so that it doesn’t get sued; some might be involved in internal governance. However, an in-house attorney would still be hired and fired by a high-ranking executive. In the U.S government, the executive, legislative, and judicial branches are (supposed to be) independent of one another.
From the 1980s through 2016, it was not common practice for presidents to issue executive orders, proclamations, or memos that they expected to be challenged in courts (at least regarding immigration). There was rarely a need for a severability clause, which says that if any part of the order is found to be illegal or unconstitutional, the rest of it still applies.
Executive orders were most often used to handle very specific situations that were time-sensitive and lacked a broader application. For example, in 2011, Obama signed Executive Order 13581, “Blocking Property of Transnational Criminal Organization,” barring U.S. entities from doing business with four specific criminal groups: The Brothers’ Circle, Camorra, Yakuza, and Los Zetas. These are the types of immigration-related executive orders we saw during the Bush and Obama years.
Courts are doing their job when they challenge executive action that could violate the Constitution or existing laws. America has an in-house counsel tasked with making sure that we function in accordance with our national principles laid out in the Constitution.
But what happens when the resort manager has a different vision than the board of the directors? When the board members haven’t updated the by-laws in decades? When a new resort manager comes in every season and changes everything?
Over the last couple decades, we’ve had the opportunity to find out. During George W. Bush’s presidency, the biggest change to the immigration process was the establishment of the Department of Homeland Security, which significantly restructured different agencies’ responsibilities. We’ll pick up our discussion with the Obama administration, since Trump’s reaction to Obama’s policies largely set the stage for today’s conversations about immigration.
Obama: Dreamers and Deportations (next article)
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