Revisiting Immigration Policy as a Win-Win for Noncitizens and the Economy

By Harlin Oh, J.D. Class of 2023

In October, the U.S. Court of Appeals for the Fifth Circuit affirmed the decision of the District Court that the implementation of Deferred Action for Childhood Arrivals (DACA) in 2012 was illegal. In the decision, the Circuit Court remanded the case back to the lower U.S. District Court to decide on the newly codified version of DACA implemented by the Biden Administration. 1 The new rule has largely the same eligibility criteria as the previous 2012 version, but the new rule is subject to the public comment period of the Informal Rulemaking Process required for certain agency rules.2

DACA was first implemented in 2012 by executive action by the Obama Administration. The program grants temporary relief from deportation and work authorization to certain young undocumented people, who came to the United States as children.3 To this day, Congress has never passed federal legislation that would give a pathway to permanent status to those eligible for DACA.4 In and of itself, DACA does not provide permanent legal status to individuals and DACA recipients must renew for their grants and work authorization every two years.

DACA recipients and potential beneficiaries, often referred to as “Dreamers,” have engendered public sympathy, which is expressed by DACA advocates and challengers alike.5 Dreamers, who entered and grew up in the United States as children, are integral members of the American workforce, society, and culture. Even though they entered without authorization, they were brought here as minors through no fault of their own. The recent decision by the Fifth Circuit keeps the District Court’s stay in place, which allows the approximately 600,000 current recipients to renew for DACA but prevents first-time applications from being processed.6

Several red states, including Texas, where over 100,000 DACA recipients live, challenged the DACA program’s constitutionality and argued that these states cannot bear the increasing costs in health care, education, social welfare, and other human infrastructure costs when noncitizens are allowed to remain the country.7 In response, advocates for the DACA program, including the Department of Justice (DOJ), Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and the Citizenship and Immigration Services (USCIS), and allied with state of New Jersey, immigrant advocacy organizations, and corporations, such as Amazon, Apple, Google, and Microsoft, argue that DACA recipients are productive drivers of the U.S. economy8 and that the national GDP stands to lose as much as $460 billion without DACA.9

The opposition’s stance that DACA will encourage more illegal immigration still turns, in part, on misguided rhetoric that the influx of poor immigrants will strain social welfare programs and become a public charge.10 Challengers perpetuate a false narrative that is at best an uncreative trope, or worst, a fear-mongering tactic drudged up time and time again throughout history.11 It stems from the same fear-based prejudice that motivated anti-Irish, anti-Catholic, anti-Jewish sentiment throughout the 19th and 20th Century.12 Although some argue that the passage of the Immigration Reform and Control Act of 1986 (IRCA) contributed to the illegal immigration of the 1990s to 2000s,13 rising migration is far more complicated. Indeed, the United States is not immune from the resulting human toil of war, conflict, persecution, and famine that occur elsewhere throughout the world. However, in 1990 Congress also passed immigration reform to bring in highly skilled professionals to meet labor shortages in the 1990s and early 2000s.14 Those reforms have failed to keep up the stagnant and outdated immigration policies of today, resulting in the United States losing out on talent and companies leaving America to retain talent elsewhere.15

If history has taught us anything, it is that we know better than to fall into the same trap of fearing “the other,” because so many different people who were once considered non-native to this country have rooted their individual and collective histories here. Precisely to this point, attracting diverse people to work and live in the United States has only enriched the cultural fabric of America and revived the economy. Not only can we reject such repackaged nativist rhetoric but also, we can choose a happier story. Solidifying DACA can give us the collective win-win we are all looking for. If our current, post-COVID economy can have any say, it would be to increase the workforce in response to labor shortages16 that are currently impacting every industry.17 Dreamers are the solution to the nation’s current economic woes.18 Although challengers do not want to allow DACA recipients to compete for the same jobs as citizens, competition is good for everyone. We want skilled workers to want to work here, and specifically, we want skilled workers who want to invest their skills and expertise in the United States. Without a doubt, DACA recipients have positively contributed to the economy by increasing wages, purchasing power, and tax payments at the federal, state and local levels.19 The answer to current talent and labor shortages requires not only preserving a program that keeps young Dreamers, many of whom are highly educated,20 from the leaving the country. But it must also include a path to legal permanent resident status and eventually to citizenship to make it worthwhile for Dreamers to stay and invest their talents and their earnings in the U.S. economy.21 Because legal status, especially in the form of legal permanent resident and citizenship, affords greater opportunities to compete for better paying jobs,22 and keeping Dreamers here for economic reasons is inextricably tied to whether they will be formally recognized as Americans they already believe themselves to be. Therefore, immigration policy and economic policy go hand in hand, and investing in young immigrants to stay and work in the country will have a lasting positive effect and stand for a core value of America, where people of all backgrounds can live, work, and come together as one nation.

[1] Texas v. United States, Case No. 21-40680 (5th Cir. October 5, 2022), https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf.

[2] https://www.npr.org/2022/10/05/1127107147/an-appeals-court-rules-against-daca-but-the-program-continues-for-now

[3] https://www.americanimmigrationcouncil.org/research/deferred-action-childhood-arrivals-daca-overview#:~:text=Deferred%20Action%20for%20Childhood%20Arrivals%20(DACA)%20is%20an%20exercise%20of,of%20Homeland%20Security%20Janet%20Napolitano.

[4] https://time.com/6226027/daca-program-dreamers-congress/

[5] https://wol.iza.org/articles/legalizing-undocumented-immigrants/long

[6] https://www.nilc.org/issues/daca/; https://time.com/6226027/daca-program-dreamers-congress/

[7] https://www.npr.org/2022/10/05/1127107147/an-appeals-court-rules-against-daca-but-the-program-continues-for-now

[8] Id.

[9] Texas v. United States, Case No. 21-40680, at 38 (5th Cir. October 5, 2022), https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf. (citing DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1914 (2020), which “estimates that ‘excluding DACA recipients from the lawful labor force may … result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years’”). See also https://observer.com/2017/10/economic-effects-of-daca-are-460-billion-per-year/.

[10] https://digitalcommons.nyls.edu/cgi/viewcontent.cgi?article=1757&context=nyls_law_review; see Texas v. United States, Case No. 21-40680, at 20 (5th Cir. October 5, 2022), https://www.ca5.uscourts.gov/opinions/pub/21/21-40680-CV0.pdf (“Texas asserts standing based on direct injury. It claims that DACA inflicts pocketbook injuries on the State in the form of healthcare, education, and social services costs”)(emphasis added).

[11] Id.

[12] https://www.washingtonpost.com/made-by-history/2022/10/06/immigration-panic-irish/

[13] https://www.americanprogress.org/article/citizenship-undocumented-immigrants-boost-u-s-economic-growth/; https://www.heritage.org/immigration/commentary/daca-may-help-dreamers-illegal-immigration-hurts-us-workers-taxpayers-and

[14] In the early 2000s, USCIS approved about 200,000 petitions annually, nearly three times more as it does today, https://www.vox.com/future-perfect/23177446/immigrants-tech-companies-united-states-innovation-h1b-visas-immigration.

[15] https://time.com/6140707/americas-brain-drain-economy/; https://fortune.com/2022/08/19/chips-act-us-employers-tech-talent-immigration-rules-canada-startup-visa-program/; https://www.wsj.com/articles/the-other-immigration-crisis-endless-visa-waits-delays-embassies-consulates-processing-reform-canada-businesses-talent-11665338857; https://fortune.com/2022/08/19/chips-act-us-employers-tech-talent-immigration-rules-canada-startup-visa-program/; https://www.politico.com/news/2022/07/31/microchip-immigration-tech-00048242

[16] https://time.com/6140707/americas-brain-drain-economy/

[17] https://www.theguardian.com/us-news/2022/sep/13/us-labor-shortage-long-covid

[18] https://www.americanimmigrationcouncil.org/research/deferred-action-childhood-arrivals-daca-overview#:~:text=Deferred%20Action%20for%20Childhood%20Arrivals%20(DACA)%20is%20an%20exercise%20of,of%20Homeland%20Security%20Janet%20Napolitano.

[19] https://itep.org/state-local-tax-contributions-of-young-undocumented-immigrants/; Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey, Center for American Progress (2017), https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_DACA_study_economic_report_updated.pdf.

[20] In 2019 survey of DACA recipients, 46% of respondents reported already having a bachelor’s degree or greater, and most of the 40% of respondents who were still in school (83%) reported that they were working toward a bachelor’s degree or higher, https://www.americanimmigrationcouncil.org/research/deferred-action-childhood-arrivals-daca-overview#:~:text=Deferred%20Action%20for%20Childhood%20Arrivals%20(DACA)%20is%20an%20exercise%20of,of%20Homeland%20Security%20Janet%20Napolitano.

[21] https://www.washingtonpost.com/opinions/2022/10/10/dream-is-not-waste-our-investment-young-immigrants/

[22] Tom K. Wong, United We Dream, National Immigration Law Center, and Center for American Progress National Survey, Center for American Progress (2017), https://cdn.americanprogress.org/content/uploads/2017/11/02125251/2017_DACA_study_economic_report_updated.pdf.