The US Congress has not enacted major changes to US immigration policy since the 1990s, three decades ago. Presidents of both parties have thus become accustomed to enacting immigration by decree, or “executive authority.” However, such policies are easily amended or erased. The result is that millions of immigrants live in a liminal status–that is, an uncertain space where the rules are unclear, where someone crossing the border may be allowed to enter the country under one set of rules, but then have those rules change. Pia M. Orrenius delivered the Presidential Address of the Southern Economic Association in 2025 on the subject “Temporary Fixes, Permanent Problems: Implications of the Growing Reliance on Liminal Status in U.S. Immigration Policy” (co-authored with Madeline Zavodny, Southern Economic Journal, October 2025, pp. 181-193).
This figure shows the number of monthly “encounters” between the US Border Patrol and potential border-crossers with the blue line, measured on the left-hand axis. The red line and the right-hand axis shows the share of potential border-crossers released into the United States. Perhaps unsurprisingly, a rising share of border-crossers being released into the US (red line) was accompanied by a rising number of border encounters (blue line).
Set aside questions over the merits of this policy for a moment. My theme here is that the Biden administration chose to alter US immigration rules not as a result of a law debated and passed by Congress, but purely a matter of “executive authority.” The Trump administration has pushed back with its own alteration of immigration rules, again through its own “executive authority.” In the US Constitution, Article 1 lays out the structure and powers of Congress. In Section 8, Clause 4, Congress is given the authority “To establish an uniform Rule of Naturalization.” Presidents and the executive branch are supposed to be carrying out the rules, not making them.
Orrenius and Zavodny offer some estimates of the size of this liminal population of immigrants, which has risen dramatically in the last decade or so. The categories are a reminder of how immigration policy has been evolving over time.
Temporary Protected Status (TPS) was created by the Immigration Act of 1990 “and was first designated to help migrants who had fled civil war in El Salvador remain in the U.S.” The Department of Homeland Security can designate countries where it would be unsafe to return. “As of the end of fiscal year (FY) 2024, almost 1.1 million immigrants from 17 countries were protected under TPS.”
Deferred Action for Childhood Arrivals (DACA) was created by the Obama administration in 2012 “in order to provide temporary legal presence to unauthorized immigrants who were children when they entered the U.S.” The Trump administration partially rescinded it, but courts blocked them from going further; the Biden administration tried to reinstate the original version, but courts blocked them from going further. “Almost 835,000 young people have been approved for DACA since 2012, including over 537,000 active beneficiaries as of the end of FY 2024.”
The Special Immigrant Juvenile (SIJ) program is so that “child immigrants who are unauthorized and have been abused, neglected, or abandoned may be eligible for a permanent resident visa.”
The Nonimmigrant T/U adjustment group refers to “immigrants who have been victims of criminal activity or trafficking,” who under certain circumstances “are eligible for a U or T nonimmigrant (temporary) visa, which allows them to apply for permanent residence after 3 years and to work in the meantime. The number of U visas for principal applicants is capped at 10,000 a year, and there is a substantial backlog—almost 400,000 petitions by victims and their family members were pending at the end of FY 2024. While they wait, victims with bona fide claims and their family members are protected from deportation and can apply for work authorization, but even that process takes years …”
Asylum seekers and the paroled are, at least in my mind, closely related groups: “A growing number of people with temporary legal presence in the U.S. are asylum seekers. Some of them presented themselves at the border, asked for asylum, and were paroled into the U.S. Others were pre-approved for parole status and sought asylum upon arrival. Yet others asked for asylum after illegally entering the U.S. and being apprehended by U.S. Border Patrol and were released into the U.S. to await determination of their asylum claim. There were so many of the latter that the Biden administration effectively eliminated the ability of apprehended migrants to ask for asylum in the summer of 2024. Regardless, it will take years for asylum officers and immigration courts to weigh the merits of pending asylum claims. As of the end of FY 2024, there were over 2.4 million asylum claims awaiting adjudication. In the meantime, asylum applicants can apply for work authorization. If their asylum claim is approved, they can adjust to permanent resident status. Typically, only about 20% to 30% of asylum claims are approved. If their claim is denied, they are supposed to leave the U.S., but evidence suggests many remain in the U.S. without legal status, adding to the unauthorized population.”
In addition to those with liminal status under these various rules, the number of those with explicit status under a temporary visa is also on the rise.
As the authors write: “The other large category of temporary migrants is those with temporary work visas, who make up the great majority of employment-based immigration. Over the last 10 years, the annual average ratio of temporary to permanent work-based visa issuances is 35 to 1. The U.S. issues temporary worker visas in an alphabet soup of categories. The most notable temporary worker visa categories are the H-1B visa for high-skilled professionals in specialty occupations; the H-2A visa for agricultural workers; the H-2B visa for non-agricultural workers; and the J-1 visa for exchange visitors. Together, they accounted for over 800,000 workers each year since 2018.”
In addition, there are F-1 visas for students: “International students who hold an F-1 visa can work under certain circumstances, including for up to 3 years after graduation under the Optional Practical Training (OPT) program if they majored in a STEM field. That post graduation work period gives STEM graduates multiple shots at winning a visa in the H-1B lottery. In 2023, almost 400,000 international students who had graduated from a U.S. university had work authorization, and another 140,000 were authorized to work off-campus while completing their studies.”
In a big-picture sense, the US population is entering a period of demographic transition, with lower birthrates and longer life expectancies. The ratio of retirees per worker is likely to rise. The US is overdue for a rethinking of immigration policy that doesn’t depend on temporary categories or on the caprice of whoever is president. Orrenius and Zavodny argue for a rise in the total levels of legal and permanent immigration, and I agree.
I’m confident that a Biden-style immigration policy of just releasing most people who show up at the US border into the US economy for indeterminate periods of time is not optimal. About two-thirds of all legal and permanent US immigration is based on family unification, with the other one-third is employment related. As a starting point, I would suggest keeping the levels of immigration related to family unification at the same level, but doubling or tripling the employment-related immigration. One starting point would be to make it more straightforward for foreign students at US colleges and universities to find a pathway to US citizenship. There is a global contest to attract talent, and the current US immigration system is a hindrance in that competition.
