Immigrants seeking a legal pathway to live and work in the United States will now be subject to screening for “anti-Americanism’,” authorities said Tuesday, raising concerns among critics that it gives officers too much leeway in rejecting foreigners based on a subjective judgment.
U.S. Citizenship and Immigration Services said officers will now consider whether an applicant for benefits, such as a green card, “endorsed, promoted, supported, or otherwise espoused” anti-American, terrorist or antisemitic views.
“America’s benefits should not be given to those who despise the country and promote anti-American ideologies,” Matthew Tragesser, USCIS spokesman, said in a statement. “Immigration benefits—including to live and work in the United States—remain a privilege, not a right.”
It isn’t specified what constitutes anti-Americanism and it isn’t clear how and when the directive would be applied.
“The message is that the U.S. and immigration agencies are going to be less tolerant of anti-Americanism or antisemitism when making immigration decisions,” Elizabeth Jacobs, director of regulatory affairs and policy at the Center for Immigration Studies, a group that advocates for immigration restrictions, said on Tuesday.
Jacobs said the government is being more explicit in the kind of behaviors and practices officers should consider, but emphasized that discretion is still in place. “The agency cannot tell officers that they have to deny — just to consider it as a negative discretion,” she said.
Critics worry the policy update will allow for more subjective views of what is considered anti-American and allow an officer’s personal bias to cloud his or her judgment.
“For me, the really big story is they are opening the door for stereotypes and prejudice and implicit bias to take the wheel in these decisions. That’s really worrisome,” said Jane Lilly Lopez, associate professor of sociology at Brigham Young University.
The policy changes follow others recently implemented since the start of the Trump administration including social media vetting and the most recent addition of assessing applicants seeking naturalization for ‘good moral character’. That will not only consider “not simply the absence of misconduct” but also factor the applicant’s positive attributes and contributions.
“It means you are going to just do a whole lot more work to provide evidence that you meet our standards,” Lopez said.
Experts disagree on the constitutionality of the policy involving people who are not U.S. citizens and their freedom of speech. Jacobs, of the Center for Immigration Studies, said First Amendment rights do not extend to people outside the U.S. or who are not U.S. citizens.
Ruby Robinson, senior managing attorney with the Michigan Immigrant Rights Center, believes the Bill of Rights and the U.S. Constitution protects all people in the United States, regardless of their immigration status, against government encroachment. “A lot of this administration’s activities infringe on constitutional rights and do need to be resolved, ultimately, in courts,” Robinson added.
Attorneys are advising clients to adjust their expectations.
“People need to understand that we have a different system today and a lot more things that apply to U.S. citizens are not going to apply to somebody who’s trying to enter the United States,” said Jaime Diez, an immigration attorney based in Brownsville, Texas.
Jonathan Grode, managing partner of Green and Spiegel immigration law firm, said the policy update was not unexpected considering how the Trump administration approaches immigration.
“This is what was elected. They’re allowed to interpret the rules the way they want,” Grode said. “The policy always to them is to shrink the strike zone. The law is still the same.”