US Compliance with the Global Compact on Migration: A Mixed Record

When the Global Compact for Safe, Orderly, and Regular Migration (GCM)[1] was agreed to in December 2018, the United States (US) was not a party to the agreement, as the Trump administration did not formally participate in its formation. In 2021, however, the Biden administration retroactively supported[2] the nonbinding GCM and began participating in its implementation.

Since that time, the US has achieved a mixed record of adhering to the provisions of the GCM, a document which creates a multilateral framework for the international community to humanely manage migration flows. Moreover, proposed changes to US border policy threaten to further sully the US record on migration. The following is an examination of US immigration policies and how they measure up to the provisions of the GCM.

I. Policies and actions in alliance with the GCM

The United States has pursued numerous initiatives which correlate, both in spirit and in law, with the policies agreed to in the GCM, including:

A. The Expanded Use of Legal Pathways

The US has created new legal pathways for migration, which is an important element of the GCM. Objective 5 of the GCM focuses upon the creation of legal pathways “in a manner that facilitates labor mobility and decent work reflecting demographic and labor market realities, optimizes educational opportunities, upholds the right to family life, and responds to the needs of migrants in a situation of vulnerability…” (GCM, Objective 5, Paragraph 21).

The use of humanitarian parole as a tool for legal immigration. In its policies, US policy has been consistent with the GCM objective to “develop or build on existing national and regional practices for admission and stay of appropriate duration based upon compassionate, humanitarian, or other considerations for migrants…” (GCM, Objective 5, Paragraph 21g).

The US has liberally used humanitarian parole as a tool to bring in vulnerable populations or individuals into the country. It is a policy established in the post-World War II era to protect individuals or populations for humanitarian or public benefit reasons. Parole provides the parolee the right to work and to remain for a designated length of time, subject to an extension at the discretion of the President. It does not, however, provide permanent residency to beneficiaries.[3]

In 2021, the US exercised this parole authority to bring in two large populations—nearly 80,000 Afghans fleeing the US-Afghan conflict and over 140,000 Ukrainians fleeing the Russian invasion of Ukraine. In early 2023, the US created a new program to allow for up to 30,000 Venezuelans, Haitians, Cubans, and Nicaraguans per month to enter the US and work, with 340,000 having arrived in the US as of the end of 2023. Under the program, the beneficiaries require a US sponsor. The program excludes, however, those already on the move, those without passports, or those without sponsors in the US. It also excludes applicants from the Northern Triangle and Mexico.[4]

The use of family reunification parole. Paragraph 21(i) calls for nations to “facilitate access to procedures for family reunification of all migrants of all skill levels…” (GCM, Objective 5, Paragraph 21i). The US created a program in 2023 which would allow family members from Colombia, Ecuador, El Salvador, Guatemala, and Honduras with approved family petitions to enter the country with parole and join their families while waiting for their visa, thus not remaining separated for years. The existing programs for Cuban and Haitian family members were expedited. Parole can last for up to three years and work authorization is provided.[5] About 3,000 family members have benefited from these programs to date.

In total, the US has brought in over one million persons under humanitarian parole in the past three years.

Correcting the previous administration’s anti-family policies. Consistent with Paragraph 21(i) of Objective 5, the US also has promoted family unity by returning to a standard for denying a family member a visa based upon “public charge” in existence prior to the Trump administration. The standard, while still stringent, eased the requirements imposed during the Trump administration.[6] In addition, the US has reunited a large majority of the children who were separated from their parents under the Trump administration. The government settled a lawsuit which provided the families restitution and an expedited path to asylum protection in the US.

Safe Mobility Offices. Objective 7 focuses on assisting migrants in vulnerable situations “which may arise from the circumstances in which they travel or the conditions they face in countries of origin, transit, and destination” (GCM, Objective 7, Paragraph 23). The US has taken steps to help migrants who face vulnerabilities in transit and their country of origin.

In April 2023, the US launched Safe Mobility Offices (SMOs)[7] in several Central and South American countries (Guatemala, Costa Rica, Colombia, Ecuador) to facilitate legal migration to the US. The purpose of the program is to reduce the number of migrants taking dangerous journeys to the US southern border.

The SMOs allow certain individuals in the Western Hemisphere to be rapidly processed for lawful pathways to the US, Canada, and Spain. Applicants may apply for the US Refugee Admissions program (USRAP) and humanitarian parole. The offices also screen individuals for other legal pathways for which they may be eligible. To date, about 5,000 individuals have been processed to travel to the US legally.

B. Providing legal status for certain undocumented immigrants in the United States.

Objective 7 of the GCM addresses the irregular status of migrants, both in transit and upon arrival in their destination. Nations commit to “respond to the needs of migrants who face situations of vulnerability, which may arise from circumstances in which they travel or the conditions they face in countries of origin, transit, and destination, by assisting them and protecting their human rights, in accordance with international law” (GCM, Objective 7, Paragraph 23).

Objective 7 also calls for nations to provide methods to allow those in irregular status to transfer to regular status: “Build on existing practices to facilitate access for migrants in an irregular status to an individual assessment that may lead to regular status, on a case-by-case basis and with clear and transparent criteria…” (GCM, Objective 7, Paragraph 23j).

The US has met these goals in the following ways:

The introduction of immigration reform legislation. During his first week in office, President Biden introduced legislation in Congress to reform the US immigration system, including a path to citizenship for the more than 10 million undocumented immigrants in the country, including immigrant youth. The legislation has not been seriously considered, however, in part because the administration did not place it high on its list of legislative priorities.

Increased processing of permanent residency applications. After several down years during the COVID-19 pandemic, the US approved 1.2 million permanent residency applications in FY 2023, above the average 1.1 million per year prior to the pandemic. 964,000 immigrants became citizens in FY 2022 and 883,000 in FY 2023, the highest numbers since 2008.

The use of Temporary Protected Status. The US has met this objective by liberally using a policy called Temporary Protected Status (TPS), which allows for citizens of a certain country in an irregular status in the US to obtain legal status and work authorization for up to 18 months. According to the law, TPS is used due to conditions in a country of origin which temporarily prevent the country’s nationals from returning safely, including 1) ongoing armed conflict (such as civil war), 2) an environmental disaster (such as a hurricane or earthquake), or epidemic, or 3) other extraordinary or temporary conditions.[8]

Since 2021, the US has designated TPS for 16 countries and protected 698,000 individuals from countries such as Venezuela, Haiti, Ukraine, and Afghanistan. TPS has been used in cases of environmental disaster, consistent with Objective 2 (H-L) and Objective 5 (H).

The US also has launched an initiative to expedite work permits for TPS holders and, for certain countries, increase the validity time periods for them. Finally, the US has applied deferred action, another executive authority, to 99,000 U visa holders and 80,000 children with Special Immigrant Juvenile Status (SIJS).

C. The protection of immigrant workers

The use of deferred action to protect immigrant workers. In Objective 6 of the GCM, the signatories pledge to “commit to review existing recruitment mechanisms to guarantee that they are fair and ethical and to protect all migrant workers from all forms of exploitation and abuse in order to guarantee decent work…” (GCM, Objective 6, Paragraph 22). Paragraph 22(j) gives states the option to “ensure that migrants working in the informal economy have safe access to effective reporting, complaint, and redress mechanisms in cases of abuse, or violations of their rights in the workplace.”

In January 2023, the US launched a new program, consistent with these GCM objectives, which allows migrant workers, regardless of their legal status, to file complaints against employers and apply for expedited deferred action, which provides them with protection from deportation. In the first year of the program, 1,000 non-citizen workers have received deferred action.

The US also launched a pilot program on January 29, 2024, to allow 20,00 high-skilled H-1B visa holders to renew their visas without returning to their country of origin.

D. Managing the border humanely

Objective 11 of the GCM commits nations to manage national borders in a coordinated manner….facilitating safe and regular cross-border movements of people while preventing irregular migration” (GCM, Objective 11, Paragraph 27). Paragraph 27(c) urges nations to “review and revise relevant national procedures for border screening, individual assessment, and interview processes to ensure due process at international borders and that all migrants are treated in accordance with international human rights law (GCM, Objective 11, Paragraph 27c).

The US has complied with this provision in two prominent ways:

Ending the “Migrant Protection Protocols.” The Trump administration created the Migrant Protection Protocols (MPP), better known as the “Remain in Mexico” program, in December 2018.[9] Under the MPP, asylum seekers who filed an asylum claim at the US-Mexico border were returned to Mexico for the duration of their immigration proceedings. The program led to the creation of unsanitary and unsafe camps on the Mexican side of the US border and exposed vulnerable migrants to criminal networks and human traffickers.

Pursuant to an executive order and consistent with President Biden’s campaign pledges, the Department of Homeland Security (DHS) terminated the program on June 1, 2021.

Ending the use of Title 42. In March 2020, the Trump administration imposed Title 42[10], an emergency health authority, to block migrants and asylum seekers from entering the US through ports-of-entry. The justification of the authority was for public health reasons, as the COVID-19 pandemic had begun. The Biden administration received criticism for keeping the authority in place for the first two years of its term, until it was lifted on May 11, 2023. Border Patrol agents used Title 42 2.7 million times to block entries into the US.

E. Addressing Root Causes of Flight

Objective 2 of the GCM focuses upon minimizing the “adverse drivers and structural factors that compel people to leave their country of origin,” committing nations to create “conducive political, economic, social and environmental conditions for people to lead peaceful, productive, and sustainable lives in their own country” (GCM, Objective 2, Paragraph 18). In other words, nations acknowledge the need to address the push factors which force people to flee their homelands and live in another country.

In February 2021, President Biden issued an Executive Order to address the root causes of migration in Central America.[11] Since then, the US has provided more than $1 billion in development aid to El Salvador, Honduras, and Guatemala and pledged $4.2 billion in private investment. $300 million has been pledged to local organizations for sustainable locally-led development over the next five years.

Despite these commitments, irregular migration from the region remains high, in part due to political instability and corruption in such countries as Guatemala and El Salvador. Critics have stated that the US has turned a blind eye to human rights violations in these countries in turn for stronger containment of migration from the region.

II. Policies and actions not in alliance with the GCM

Just as with other nations, the US has used a “carrot and stick” approach to managing migration, with the deployment of enforcement policies which are contrary to the spirit and substance of the GCM. As previously cited, for example, the Biden administration waited for over two years to lift the Title 42 ban on entry, which returned millions of asylum-seekers to Mexico.

The following US policies are inconsistent with the GCM and should be abandoned:

A. Undermining asylum rights at the US border and returning migrants to dangerous conditions

Circumvention of Legal Pathways Rule. When the Title 42 ban was lifted by the US on May 11, 2023, it was immediately replaced by a regulation entitled the Circumvention of Legal Pathways rule.[12] The new policy denied asylum to any migrant who arrived at the US-Mexico border and could not prove that he/she had applied in a transit country, such as Mexico.

The rule has disqualified nearly all of the asylum-seekers who arrived at the border, as they either were unaware of the rule or did not have the resources to apply in a transit country. Moreover, the asylum systems of countries in Central America and Mexico are barely functional, unable to handle a large number of asylum cases at one time. The rule has been challenged in court, but remains in effect until a federal appeals court rules on its merits. The humanitarian consequences of the policy are dire, as asylum-seekers, including women and children, are left in Mexico at the mercy of gangs, human traffickers, and criminal organizations.

Effectively denying asylum under this policy undermines several provisions of the GCM. First, it goes against Objective 11, Paragraph 27(c), which requires that nations review and revise border screening, individual assessment, and interview processes to ensure “due process at the border and that all migrants are treated in accordance with international human rights law” (GCM, Objective 11, Paragraph 27c).

It also weakens Objective 7 on addressing and reducing the vulnerabilities in migration by leaving people at risk and Objective 12, which aims to “strengthen certainty and predictability in migration procedures for appropriate screening, assessment, and referral” (GCM, Objective 12, Paragraph 28). Paragraph 28(e) asks nations to “ensure that, in the context of mixed movements, relevant information on rights and obligations under national laws and procedures, including on entry and stay requirements….is available’ (GCM, Objective 12, Paragraph 28e).

Deportations to dangerous conditions. Objective 21 focuses upon the safe and dignified return of migrants by “upholding the prohibition of collective expulsion and of returning migrants when there is a real and foreseeable risk of death, torture, and other cruel, inhuman, and degrading treatment or punishment, or other irreparable harm…” (GCM, Objective 21, Paragraph 37). Objective 21 also outlines conditions for the safe return of individuals and families, including facilitating the “sustainable reintegration of returning migrants into community life by providing them with equal access to social protection and services, justice…” (GCM, Objective 21, Paragraph 37h).

The US continues to deport migrants who are unable to obtain asylum to dangerous conditions in failed or failing states, including Haiti and Venezuela, without a plan to help them reintegrate into their communities. Despite conferring TPS on both countries, in FY 2023, the US still returned 27,903 Haitians and 13,000 Venezuelans to dangerous situations in their home countries.

Haiti is considered a failed state, where gangs control neighborhoods and sustainable employment is very low. Venezuela is controlled by a dictatorial regime which punishes their perceived opponents and has a high rate of poverty. These deportations, as well as deportations to other dangerous countries such as Nicaragua, fly in the face of the goals of Objective 21 of the GCM.

B. Expanding Detention and Expedited Removal of Families

Monitoring of family units. On May 10, 2023, DHS announced a limited program, called the Family Expedited Removal Management (FERM) program[13], to place families facing expedited removal in a monitoring program in which the head of the household would be required to wear a monitoring bracelet and honor a 5 PM curfew each night. The program has been criticized by immigration experts as having inherent due process problems, as families are unable to find legal representation and prepare their cases in a short period of time.

FERM goes against Objective 13, in which nations commit to “non-custodial alternatives to detention that are in line with international law…” (GCM, Objective 13, Paragraph 29). The objective promotes the use of “alternatives to detention, favoring non-custodial measures and community-based care arrangements, especially in the cases of families and children” (GCM, Objective 13, Paragraph 29a). A case management model, rather than a monitoring program, is more in line with the goals of Objective 13 of the GCM.

C. Proposed Changes to Asylum, Border Management, Detention, and Removal

The proposed weakening of asylum protection, the closing of the border, the expansion of expedited removal, and restrictions on humanitarian parole. The US is currently considering a number of restrictive measures to deter migrants attempting to enter the US. While it is unclear whether the proposed policy changes will become law, their adoption would mark a sharp turn away from the goals of the GCM by undermining international human rights standards.

Among the proposed changes, upon which the Biden administration and the US Senate have agreed, is 1) making it more difficult to obtain asylum by raising the credible fear test standard; 2) creating an authority to close the border at the discretion of the President; 3) expanding the use of expedited removal to the interior of the country; 4) restricting the use of humanitarian parole, and 5) increasing the use of detention and monitoring programs. If these proposed changes are enacted into law, they would violate Objective 5 on pathways for regular migration; Objective 7 on addressing and reducing vulnerabilities in migration; Objective 11 on managing borders in an integrated, secure, and coordinated manner; and Objective 13 on the use of migration detention as a measure of last resort.

III. Conclusion

Since it signaled support for the GCM in 2021, the United States has deployed several policies which are consistent with its goals. However, the use of restrictive enforcement policies, particularly at the US-Mexico border, has tainted its record. Should Congress adopt several additional restrictive enforcement policies in the near future, it would severely undermine, if not eviscerate, the progress the US has made in implementing humane and lawful immigration policies over the past few years. It also would send a message to the world that such restrictive policies are acceptable and appropriate, leading to a global retrenchment from the goals of the GCM in the years ahead.

[1] Global Compact for Safe, Orderly, and Regular Migration (GCM). 2018. New York: UN General Assembly. https://refugeesmigrants.un.org.

[2] Revised National Statement of the United States of America on the Adoption of the Global Compact for Safe, Orderly, and Regular Migration. December 17, 2021. US Department of State, Washington, DC. www.state.gov.

[3] Humanitarian or Significant Public Benefit Parole for Individuals Outside the United States. US Citizenship and Immigration Services. Washington, DC. www.uscis.gov.

[4] Processes for Cubans, Haitians, Nicaraguans, and Venezuelans. US Citizenship and Immigration Services. Washington, DC. www.uscis.gov.

[5] Family Reunification Parole Processes. US Citizenship and Immigration Services. Washington, DC. www.uscis.gov.

[6] Public Charge Ground of Inadmissibility. US Citizenship and Immigration Services. Washington, DC. September 9, 2022. www.federalregister.gov.

[7] Safe Mobility Initiative. Bureau of Population, Refugees, and Migration. US Department of State. www.state.gov.

[8] Temporary Protected Status, US Citizenship and Immigration Services. Washington, DC. www.uscis.gov.

[9] Migrant Protection Protocols. US Department of Homeland Security. Washington, DC. January 24, 2019. www.dhs.gov.

[10] Title 42—Public Health. US Center for Disease Control. Atlanta, Georgia. www.ecfr.gov.

[11] Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration. The White House. February 2, 2021. www.whitehouse.gov.

[12] Circumvention of Legal Pathways Rule. US Department of Homeland Security and Executive Office for Immigration Review, US Department of Justice. May 16, 2023. www.federalregister.gov.

[13] Statement regarding Family Expedited Removal Management Program. US Customs and Immigration Enforcement. Washington, DC. August 3, 2023. www.ice.gov.

February 2, 2024