Experts: To Address Migrant Crisis, State Governments Should Hire Migrants

JACOB HAMBURGER AND STEPHEN YALE-LOEHR, June 3, 2023

"With the end of the COVID-19 emergency on May 11, the Title 42 border restrictions have been officially lifted. Although the situation at the border is not the chaotic scene that many had predicted, the U.S. is nonetheless seeing historic numbers of migrants seeking refuge from violence and deprivation. In response, Texas has renewed its practice of sending migrants via bus and plane to large cities in liberal states. If Gov. Greg Abbott’s goal is to overwhelm these cities with new arrivals, he appears for now to be succeeding. In response to overcrowded homeless shelters and police stations, outgoing Chicago mayor Lori Lightfoot declared a state of emergency. New York City mayor Eric Adams has even made plans to mimic Abbott by busing migrants upstate. While anti-immigrant politicians in border states are seeking to score points by manufacturing a “migrant crisis” in destination cities and states, elected officials seeking to offer welcome are far from powerless. Responding to these challenges will require significant resources and ingenuity, but governors have tools at their disposal to rise to the occasion. One of those tools is to allow new migrants to work. Opponents of immigration typically complain that people from poorer countries bring lawlessness. But if anything, the problem today is that asylum seekers are eager to follow the rules. The last time border arrivals were at comparable levels, many new immigrants were single job-seekers who were willing to elude immigration enforcement and work under the table. In contrast, the first thing most humanitarian migrants do upon entering the U.S. now is to present themselves to the authorities to begin applying for asylum. Under that process, they cannot apply for work permits for at least six months. As a result, asylum seekers almost uniformly have no means of supporting themselves and their family members traveling with them, and must rely on the emergency services and private charities that are now being overwhelmed. New York Democrats, including Gov. Kathy Hochul, have called on the federal government to provide quicker access to work authorization, but the Biden administration seems unwilling to cooperate, and efforts in Congress are unlikely to succeed.  Luckily, state governors need not wait for federal permission to allow asylum seekers to work. As immigration law scholars have recently argued, the federal statute that forbids most employers from hiring immigrants without work authorization does not apply to state governments themselves. Whereas asylum seekers are barred from working in the private sector, nothing prevents states from hiring them directly.  Given the urgent needs today, we believe governors have the authority to provide temporary employment to asylum seekers. This would serve two important, intertwined objectives: providing migrants with means of supporting themselves and also providing states with manpower to address the most pressing needs of the moment. For example, migrants could assist in constructing new emergency shelters, distributing food and sanitary goods or caring for children. State National Guard units — which mayors have called upon — could be mobilized to provide logistical support to oversee these new efforts.  Such employment would not simply be a “handout,” nor would it condemn migrants to solve their own problems without public support. Rather, in the tradition of the Depression-era Civilian Conservation Corps, state governments could use public works to empower the people most affected by a national emergency to play a part in responding to it. Call it a Migrant Empowerment Corps. Given the opposition to migrant arrivals that has surfaced in some underserved neighborhoods of destination cities, it is crucial for governments to design welcoming efforts that can also address the needs of existing residents. To that end, state Migrant Empowerment Corps — which would legally have to be open to anyone, not just asylum seekers — could help craft solutions for a number of intersecting issues, whether by building homeless shelters and even permanent housing, or by maintaining public infrastructure to improve street safety.  To date, states have been cautious about directly hiring undocumented immigrants, perhaps fearing that an unfriendly administration might fine them. But this has started to change, most recently with the University of California’s decision to explore allowing undocumented students to work full-time on campus. Given the Biden administration’s interest in avoiding an escalating migrant crisis, it is unlikely that federal authorities would resist temporary state employment initiatives aimed at welcoming asylum seekers. Some Republican governors have engaged in a series of cruel — and in some cases likely illegal — stunts to underscore their belief that the Biden administration is ill-equipped to enforce the border, and that blue-state support for immigration is mere virtue-signaling. Other governors now have an opportunity to prove them wrong. A Migrant Empowerment Corps would not only fulfill the promise to welcome those in need, but would also become a tool to make destination states better places for all."

Jacob Hamburger is an incoming visiting assistant professor at Cornell Law School. Stephen Yale-Loehr is professor of immigration law.