Abstract
Often, undocumented immigrants are considered a population living in the shadows. But living below the radar of U.S. governmental authorities is no longer as accurate. As of the end of 2023, estimates indicate nearly six million, or nearly half, of the undocumented population has some level of liminal or protected status. At the same time, these protections are more temporary than before as most immigration policy now occurs in the executive, and not the legislative, branch, and is subject to dramatic shifts with a change in administration. Also, the diversity of protection types has grown. Using data for the U.S. case, this paper examines the broader implications of this trend on how the term “undocumented” is defined, as well as the advocacy and policy implications such new statuses portend. Having the world's largest undocumented population, the U.S. case can also shed light on our broader understanding of the undocumented label as a globally-referenced category.
For decades, the undocumented population in the U.S. has been referred to as a population living in the shadows (Aranda 2016), hidden from governmental authorities. As a group that has represented up to a quarter of the total immigrant population in the U.S. (Passel and Krogstad 2023), the undocumented population has been the source of hundreds of studies and volumes over the past several decades. Simultaneously, scholars and policymakers alike have sought to shed light on the heterogeneity of the undocumented immigrant population (Donato and Armenta 2011), including the societal impact of mixed-status families (Dreby 2015), the stratified status of visa overstayers compared with those who entered without inspection (Aptekar and Hsin 2023), and the social construction of being undocumented, unauthorized, or “illegal” (Menjívar and Kanstroom 2014). 1
In the vacuum of congressional action on immigration reform (Donato and Amuedo-Dorantes 2020), recent administrative protections like Deferred Action for Childhood Arrivals (DACA), the expansion of Temporary Protected Status (TPS), as well as a growing number of asylum seekers waiting for a decision on their case, in addition to paroled individuals, among other statuses, together present a new reality to scholars and policymakers alike of what it means to be “undocumented.” These liminal (Menjívar 2006), sometimes labeled “twilight” (Martin 2005; Chisti and Bush-Joseph 2023), statuses are leading to a shift in the parsing of immigration statuses among the undocumented, and who, at least statistically speaking, has been conventionally defined as an undocumented person (Passel and Cohn 2018). These various liminal statuses, particularly for DACA recipients (Olivias 2020) and those with TPS, resulted from movements of undocumented people organizing for immigration reform (Escudero 2020) and other forms of civic engagement (Menjívar, Agadjanian, and Oh 2022). Such advocacy efforts towards protections, however, have created a movement for greater rights and protections for the broader undocumented population (Nicholls 2014), and have led to contrasting career trajectories for undocumented youth as dependent on their protected status (Gonzales 2016).
Our understanding of who makes up the undocumented population, at least in the U.S. case, has been conditioned on the statistical artifact that the number of individuals with a protected, or liminal, status was comparatively few in number for many years. Demographer estimates (Van Hook et al. 2014; Passel and Krogstad 2023; Warren 2024), typically relying on various takes on the residual and logical imputation methods in estimating the size of the undocumented population, include a range of liminal statuses within the broader undocumented population. For the past two decades, the relatively small share having protections may not have ranked as a high priority in parsing out the undocumented population by immigration status. But as the empirical trends in this paper show, that is no longer the case: the growing number of protected individuals is more crucial now then ever in understanding who makes up the undocumented population.
At the same time, immigration policy in the U.S. increasingly occurs at the executive, rather than the legislative, branch; no significant immigration legislation has been passed in Congress since 1996. Consequently, any protections from deportation afforded by groups of undocumented immigrants are subject to which party holds the White House. In fact, the growing number of protected individuals within the undocumented population is a net result of no significant legislation providing a pathway to citizenship or broader immigration reform from Congress for decades.
For example, after some significant increases in the number of protected individuals during the Obama administration (creation of DACA, new TPS designations), the U.S. experienced frequent attempts during the Trump administration to dismantle years of protections held by several undocumented groups (Pierce and Selee 2017), often leading to court challenges that continue to jeopardize the future of these protections (Kocher 2018), in addition to state-level court challenges to executive authority on immigration (Boyer 2019). Nonetheless, the number of asylum seekers waiting on a decision in their case, also a protected status, has continued to increase for many years, across all administrations.
As a counter example, however, the Biden administration issued guidelines for enforcement of civil immigration law, particularly among the undocumented population. Prosecutors and federal law enforcement were directed to use prosecutorial discretion for cases based solely on unauthorized or other transitory statuses, essentially protecting many of those in processing backlogs for immigrant and nonimmigrant visas and other protections listed in this paper. Such lack of prosecution of these undocumented individuals immediately enlarged the number of protected individuals by hundreds of thousands of people. A different administration, however, could easily rescind such guidance, permitting deportation based solely on undocumented status, including potentially those who are in some processing backlogs or those with an expired protected status as decided by policies of the executive branch.
Executive action, in recent years, has prioritized groups encountered at the U.S. southern border as a means of managing irregular migration. At the same time, some administrations seek to balance such protections with policies impacting the large number of long-term, unprotected individuals (Gleeson and Gonzales 2012). Regardless of current politics, it is clear that a more expansive, undocumented population protected from deportation may not be as protected as their status once implies. There is significant temporariness in their protected status (Menjívar and Kanstroom 2014), and it is likely more precarious today than similar protections were decades ago. Consequently, protections are not permanent, and thus, due to the threat of a change in administration, results in only a somewhat protected population.
Beyond the growing number and increased temporariness of protected individuals, there is also a greater diversity of protected statuses than in previous years. As of 2023, there were four broad parole policies (Uniting for Ukraine, Operation Allies Welcome for Afghanistan, Cuba–Haiti–Nicaragua–Venezuela parole policy, CBP One app at the southern border), more than a dozen TPS designations, growing backlogs in the adjustment categories for U and T visas (labor, trafficking, and other victim and witness visas) as well as Special Immigrant Juveniles (SIJS), and a substantial growth of asylum cases that all have different start and end dates depending on the type of asylum and strategies taken by government officials to shorten wait times.
Parsing the undocumented population has been an ongoing scholarly pursuit for many years (Menjívar and Kanstroom 2014). But unlike previous periods in modern U.S. immigration history, the relative size, increased temporariness, and status diversity of the protected population is a new reality. This means that, on a definitional front, researchers are now challenged to further disaggregate the heterogeneity of this population by additional immigration statuses and categories. Meanwhile, policymakers, as a separate group. are grappling with the growth of liminal statuses as part of a broader undocumented population with unclear futures within the U.S. (Chisti and Bush-Joseph 2023), while the growth of the liminal statuses forces advocates to reevaluate their tactics for the greater undocumented population (Nicholls 2014).
More broadly, such alterations to our understanding of the undocumented population also have global implications during a period in global history when anti-immigrant rhetoric within the media and politics is a key pillar of populist politics in many immigrant destinations (Joppke 2021), all in the face of new and growing local interactions with undocumented immigrants impacting the public's view of them (Laurence and Kim 2023). The time is ripe to reconstruct our joint understanding of the term “undocumented” among various invested communities—scholars, advocates, policymakers—all through an empirically based mapping of the population.
The paper situates the empirical reality of a growing number, temporariness, and status diversity of protected individuals within the U.S. undocumented population by first examining how the concept of “undocumented” has been socially constructed through various disciplinary perspectives. With this theoretical context, the data and measurement issues in determining the changing size of the protected population for the U.S. case are provided. With population estimates in hand, along with some descriptive statistics across different protected and unprotected groups, the paper concludes by offering advocacy, policy, and definitional implications for the protected, yet undocumented population.
Perspectives in Defining the Undocumented Population
As is the case for population labels more broadly (Berger and Luckmann 1966), defining the undocumented population is a socially-constructed exercise, and in the case of immigration, involves legal, historical, and political inputs, in addition to measurement issues. Each disciplinary perspective contributes to our broader understanding of what groups should make up the undocumented population, and when and how certain labels are used.
A reflexive, critical approach to understanding the term “undocumented,” or “illegality,” is an important undercurrent of scholarship (De Genova 2014), whether it be for the U.S. or for other international destinations, particularly in Europe (Connor and Passel 2019; Orrenius and Zavodny 2016; Sigona 2012). The concept of individuals without legal status living in the U.S. has been a socially-constructed process over time, understood through the lens of border politics (De Genova 2002), expanding to include many groups. This social construction of the “illegal” population is one fraught by debate from various immigration policy perspectives, while also using the term as a criminal notion that further delegitimizes the potential inclusion of undocumented individuals within American society (Hagan, Rodriguez, and Castro 2011). The concept is also held against the premise of U.S. citizenship (Brubaker 1989), and who should make up a true American society. Also, the racialization of the concept has made the label increasingly synonymous with Latinos (Abrego 2011), particularly since previous waves of irregular migration at the U.S. southern border has mostly originated from Latin American countries (McC. Heyman 2011). And, finally, these social constructions of the concept are not uniquely American: many Western societies (Goldring, Berinstein, and Bernhard 2007; Sigona 2012) and also those in the developing world (Bosniak 1991) grapple with who makes up the undocumented population within their borders.
Legally, the concept of “undocumented,” at least in the U.S., involves an entirely different set of meanings, depending on what parts of the Immigration and Nationality Act (INA) pertain to which individuals. Certainly, “legal” immigrants in the U.S. include groups not part of the undocumented population, such as lawful permanent residents (LPRs) and nonimmigrants (U.S. governmental term for legal, temporary immigrants). But many legal professionals would probably also include any groups that are protected under INA statutes, including TPS holders, asylum seekers waiting for a decision in their case, and those on a certain adjustment path to LPR. Although the INA could be interpreted to also be protective for other groups like DACA or paroled individuals through broad policies (like those paroled recently from Afghanistan and Ukraine), this is more an interpretation of the INA, at the discretion of the current administration, and more open to court challenge. Consequently, these groups have documents protecting them from deportation, and as such, literally speaking, are not undocumented, even though their future in the United States is uncertain, and will be decided through future litigation or administrative policy.
Historically, the concept of “illegality,” didn’t really come to prominence until the rooting classification of ethnic or nationality groups, instituted by law, by, for example, the Chinese Exclusion Act (Ryo 2018), and decades later, coalescing as a concept as greater attention shifted to the U.S. southern border (Ackerman 2012), often synonymous with Hispanic ethnicity (Abrego 2011; Flores 2020). Subsequently, the concept of undocumented individuals living in the U.S. was almost entirely focused on the irregular means by which individuals crossed into the U.S. (De Genova 2014).
This began with Operation Wetback in the 1950s, when workers from Mexico were forcibly deported back to Mexico. Over time, an active border force was resourced with more funding. Portions of a border wall or other forms of physical border demarcation were installed, and the border became increasingly militarized (Massey et al. 1987; Massey, Durand, and Malone 2002; Massey and Espinosa 1997). In doing so, the previous cyclical patterns of migrants going back and forth across the border to work seasonally or during fluctuations in the U.S. economy became increasingly untenable for individuals, particularly with the INA's regional caps that could not handle a large number of individuals from Latin America (Massey 2007). Consequently, a sizable undocumented population grew throughout the 1970s and 1980s until Congress passed the Immigration Reform and Control Act (IRCA), when some 2.7 million people able to regularize their status (Orrenius and Zavodny 2003).
Still, without sufficient legal pathways to meet business demand, the undocumented population continued to grow. The undocumented population was even further penalized by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) in 1996, which imposed a series of immigration bars that denied adjustment to permanent residency for undocumented family members of U.S. citizens. IIRAIRA essentially solidified the undocumented population, since there were limited options to cross back and forth safely and orderly between the U.S. and Mexico (Massey, Durand, and Malone 2002), particularly following the events of September 11, 2011 which led to the further militarization of the U.S. southern border. This solidification of undocumented status has been argued to constitute undocumented individuals as part of America's new underclass (Massey 2007).
Politically, the undocumented concept has been employed by both those seeking to deny the rights of the population as well as those seeking to mobilize the population toward legal status. Using the term “illegal,” those actively pursuing harsher deportation policies and further militarization of the U.S. border (De Genova 2002) have used the political notion of illegality for political gains, whether it be for electoral politics (Vidal 2018), a wedge issue impeding successful congressional action on immigration (Fennelly, Pearson, and Hackett 2015), or as part of harmful political rhetoric and tropes (Vidal 2018). All those strategies lead to sustained fear within the undocumented population (Abrego 2011). These political attacks and impediments rarely define portions of the group that might be considered protected; instead, it has become a set of elusive concepts that have been, like those of a century earlier, conflated with certain immigrant nationalities and ethnicities (Chavez 2013; Minian 2018; Ngai 1998) all meant as a fear tactic by some politicians to grow voter enthusiasm (García 2006).
At the same time, many individuals with a protected status, may sometimes choose to be identified as undocumented as a means to draw public attention to their uncertain situation. This mobilization has involved political organizing and the growth of a movement (Olivias 2020), all under the undocumented label to bring attention to the long-term uncertainty of their liminal status. This public expression of members of the undocumented population, particularly among those who entered the U.S. as children, is notably different from those who may have come as adults, who, by contrast, highly value work as part of the immigrant experience, and may seek to remain below the radar of authorities (Gleeson and Gonzales 2012).
Empirically, however, demographers have historically rooted the undocumented concept in the available data and methods (Passel and Cohn 2018). In using a residual method (see estimation methods below), the undocumented population represents a broad swath of the immigrant population in the U.S., including anyone who is not a naturalized U.S. citizen, LPR, or a nonimmigrant (temporary immigrant visa). Defacto, our understanding of who constitutes the undocumented population, has been largely shaped by these estimates, and includes both those who have overstayed visas or entered without inspection (Aptekar and Hsin 2023). Although portions of the general public may view the undocumented population differently (Berg 2009), particularly with the rise of highly-charged political rhetoric towards undocumented immigrants (Finley and Esposito 2019), even most conservative commentators return to the broadly-accepted estimates of the undocumented population being around the 11 million mark, at least for the previous decades.
In light of these multiple disciplinary perspectives, this paper seeks to first define the population demographically, exposing how the understanding of who is undocumented is changing. Despite being an empirical exercise, the analytical outcomes aim to provide the basis for more commentary and reflexivity surrounding the term “undocumented.”
Estimation Methods for the Undocumented Population
The first step to estimating the demographic composition of protected, yet undocumented groups within the U.S. is to estimate the total undocumented population. The estimates are as of the end of fiscal year 2023 (September 30, 2023) and primarily rely on two data sources: (1) the 2022 American Community Survey for estimating the base undocumented population in 2022, and (2) publicly available administrative data to better estimate and add new inflows that have entered the U.S. in recent years, largely via the U.S. southern border. 2
The 2022 base estimates rely on microdata from the 2022 American Community Survey using IPUMS (Ruggles et al. 2020). The derivation of the undocumented population is based on the combination of the residual (Van Hook et al. 2014; Passel and Krogstad 2023) and logical imputation methods (Borjas and Slusky 2022) whereby, in broad terms, demographic and social characteristics of immigrants in the ACS help researchers to identify immigrant respondents as LPRs, or nonimmigrants (immigrants with temporary work or educational visas), in addition to naturalized U.S. citizens. 3 After listwise edits to likely erroneous claims to U.S. citizenship for some immigrant respondents, each respondent is assigned an immigration status based on years in the U.S., social and demographic characteristics, educational and occupational attainment, and use of public welfare programs, including public insurance programs that are available to only certain immigration statuses for a certain number of years in the U.S. 4
In this project, the 2022 ACS data are reweighted at the outset based on known 2020 Census undercounting of certain groups, including ethnicity and race, age, sex, and housing status according to the 2020 Census post-enumeration study (Khubba, Heim, and Hong 2022). This reweighting approach at the beginning of the immigrant assignment process was selected instead of the undercounting adjustment typically made for undocumented immigrants that some researchers perform. The undercounting of undocumented immigrants in surveys has been established by a number of studies (see summary in Van Hook et al. 2014), and must be taken into account. However, these undercounting adjustments are based on studies from decades earlier. We would expect that a number of factors (political, security, technology) may affect potential undercounting of undocumented immigrants in the U.S. differently since these studies were conducted. Consequently, this project employs the most recent data available to correct for possible undercounting of all immigrant groups, of which undocumented immigrants are one of the largest.
In classifying those likely with LPR or soon to have LPR, assignments include: long-term marriage to U.S. citizens, year of entry by nationality of likely resettled refugee groups over the past several years, use of government social programs (for example, Medicaid, Medicare, Social Security, TANF, Supplemental Security Income), and additional family members entering the U.S. in the identical year among those already identified as having LPR. For nonimmigrants, several different visa classifications are assigned according to occupations and/or educational qualifications and limits to potential year of entry into the U.S. for various visas, such as those for diplomats, skilled and less skilled temporary workers (H-1B, H-2A, H-2B), international students (F-1), post-international student graduate training (F-1 Optional Practical Training), cultural exchange visitors (J-1), intracompany transfers (L-1), extraordinary ability workers and athletes (O-1, P-1), religious workers (R-1), and North American visa holders (TN). Immigrant spouses and dependents of selected visa holders were also given nonimmigrant status.
Following these assignments for likely LPR and nonimmigrant classifications, the residual population is considered undocumented. 5 The resulting total number of undocumented immigrants estimated to live in the United States in 2022 is 10.8 million, comparable to the some 10 million to 11 million undocumented immigrants living in the U.S. estimated recently by other researchers. The derived undocumented population also shares consistent demographic and economic characteristics produced by other organizations that regularly estimate the size of the total undocumented population in the U.S.
However, with the high level of recent migration into the U.S. outside of the permanent residency or nonimmigrant categories, more than year-old estimates of the undocumented population are not useful for real-time policymaking, or for the goals of identifying the recent size of the protected population. Also, further testing of change in the size of the undocumented population from 2019 to 2022 is largely not reflective of the recent rise in new border arrivals or those paroled into the U.S. by the administration. This is most likely because this newly arriving group is highly transient, with many living in group quarters that are out of reach for surveys like the ACS, among other reasons.
Consequently, an estimate of the total undocumented population as of September 30, 2023, can be projected using previous immigration trends, demographic techniques, and other administrative data. To include these additional undocumented immigrants, who have entered the U.S. without permanent residency or nonimmigrant visas between January 1, 2021, and September 30, 2023, publicly-available administrative data from the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Department of Justice's Executive Office for Immigration Review (EOIR), USCIS and other agencies were obtained. In determining the likely characteristics of these added immigrant groups, the population weights for respondents determined to be undocumented in the 2022 ACS were upwardly reweighted by nationality and age (adult vs. minor) according to those from the same nationality and age groups entering the U.S. in 2021 and 2022. 6
Identifying Protected Population Groups
The decomposition of protected statuses since 2012 was determined by referring to end-of-fiscal year reports from USCIS, DHS, EOIR, Transactional Records Access Clearinghouse (TRAC) at Syracuse University, and other public data sources. For some statuses, cumulative backlogged cases, both for initial processing and waiting for a nonimmigrant or permanent visa, were totaled for each year after subtracting out the annual number of visas granted through these programs during the same time period.
In the broadest sense, the protected population for the empirical trends in this paper includes individuals who: (1) have no guaranteed pathway to permanent residency, but including those who are in adjustment backlogs waiting for a visa number or waiting for the processing of an application; (2) are not immediately deportable due to their protected status, except for non-immigration–related criminality; and (3) have been traditionally counted as part of the undocumented population as part of the residual population, apart from naturalized citizens, permanent residents, or nonimmigrants.
The major groups of protected individuals meeting these criteria are listed below. Data sources for population estimates for the protected population trend as well as the protected group identification in the 2022 ACS (after 2023 undocumented projections are applied) are itemized for each protected group, all as of the end of each fiscal year (September 30). Assignments of protected status, all among those already determined to be undocumented in the ACS, are exclusive to one group even though a small number of individuals may have multiple protected statuses. Assignments in the ACS are made in the order appearing below.
Temporary Protected Status
Several hundred thousand immigrants, including those with longer-term TPS designations from El Salvador and Honduras and more recent TPS designations from Cameroon, Ethiopia, Venezuela, and others, make up the TPS population. 7 TPS country designations are mostly granted by the administration, last up to 18 months, and are meant to offer temporary relief from deportation based on unsafe country conditions. TPS can be granted because of civil strife or conflict in the country, political repression, or environmental disaster. Extension of TPS designations are at the discretion of the current administration, and thus, an uncertain and temporal status. Annual estimates for the TPS population are drawn from Congressional Research Service period reports on TPS (e.g., Wilson 2023). For 2023 descriptive statistics, the TPS population is identified in the ACS by nationality and date of entry, with a random selection of households when the potential pool of undocumented immigrants identified in the ACS exceeds known population targets.
Deferred Action for Childhood Arrivals
Based on an executive order published by President Obama in 2012 and a Final Rule submitted by the Biden administration in 2022, DACA allows those with certain criteria who entered the U.S. as children, but have no current, lawful status, to apply for protection from deportation. DACA has been repeatedly challenged in the courts as an unlawful extension of executive authority, leading to its continuance with a Supreme Court decision in 2020 with DACA renewals permitted, but no new applications being processed. DACA is now working through various stages of court proceedings again with a series of adverse court decisions in lower and appellate courts. 8 Annual estimates are drawn from annual USCIS statistics on the active DACA population. For 2023 descriptive statistics, a random selection of undocumented immigrants meeting age and entry year requirements for population targets by nationality, sex, and top states of residence, as available from USCIS, was performed.
Adjustment to Permanent Status
The residual method conventionally used to identify undocumented immigrants also includes immigrants living in the U.S. waiting for an adjustment to LPR status, either through a family member (often a spouse) or an employment-based visa (often previously on a nonimmigrant visa). Like most protected groups, these individuals can access work authorizations and their protection from deportation is mostly guaranteed, since most will receive their green cards within a year or longer. Nonetheless, their right to live in the U.S. while they wait for LPR is still at the discretion of the administration. Trend estimates are based on DHS data for the annual number of spousal and employment-based adjustees already living in the U.S., with most recent years representing the decade average. For 2023 descriptive statistics, a random selection according to the average, annual population target among those who entered the U.S. within the past two years and are married to a U.S. citizen as well as those who have educational qualifications commensurate for an employment-based visa within the residual, undocumented population are considered part of this group.
Special Immigrant Juvenile Status (SIJS)
Undocumented juveniles who are subject to juvenile court proceedings for parental abuse, neglect, or abandonment can apply for permanent residency. This process can take many years for approval and eventual granting of a green card, due both to application processing backlogs and the lawful number of available visas granted for this category each year. Although protected through legal statute, protections for those in processing backlogs are at the discretion of the administration through deferred action. Trend statistics is based on the number of individuals in the USCIS SIJS backlog and those with approved cases but waiting for LPR during the past decade, subtracting those from DHS data already receiving permanent residency each year. For 2023 descriptive statistics, those aged 25 years or younger, entering the U.S. at 21 years or younger, entering the U.S. within the past five years, and not a child member of a household were randomly selected according to the population target distribution for state of residence from a recent report on SIJS status that relies on non-public USCIS data (End SIJS Backlog 2023).
Adjustment to Nonimmigrant Status
Some undocumented immigrants and their immediate undocumented family members who are witnesses to, or victims of, criminal activity (nonimmigrant U visa) including labor violations, and trafficking (nonimmigrant T visa), are protected from deportation after applying for these visas. If approved, these nonimmigrant visa holders can apply for permanent residency after three years of continual residence in the U.S. With a limited number of visas for nonimmigrant adjustment, many protected individuals have to wait several years to receive permanent residency. At the same time, the application processing backlog for the U visa is multiple years. Individuals in both queues have been conventionally protected from deportation, especially those with a nonimmigrant visa, but this protection is still at the discretion of the current administration. Trend statistics include both pending applications at USCIS and the resulting net backlog waiting for LPR from total visa approvals during the past several years, minus those receiving LPR from DHS data during the same time period. For 2023 descriptive statistics, a random selection of individuals based on nationality and sex distributions from a recent report by USCIS for U visa applicants (USCIS 2020) is performed.
Asylum Seekers
Asylum in the U.S. can be claimed affirmatively with an application to USCIS within one year of entering the country, or defensively after an encounter with border or other immigration authorities. Affirmative cases are processed by USCIS, while defensive cases and appeals to affirmative asylum decisions are processed in EOIR immigration court. Statistics on pending defensive applications under review, by nationality, are available from TRAC, while the total number of pending affirmative applications (after a multiplier of 1.34 for multiple members of households based on a recent TRAC 2022 report using non-public, USCIS data) is added according to the same defensive nationality distribution. For 2023 descriptive statistics, population targets by nationality are used for random selection among undocumented immigrants identified within the ACS who had entered the U.S. during the past seven years, the current wait time for most asylum cases.
Parole
Each administration has employed the right in the INA, case by case, to parole individuals into the U.S. under humanitarian or security considerations or when it is in the best interest of the U.S. The extent by which parole has been used from administration to administration has varied (Bier 2023); but between 2021 and 2023, hundreds of thousands of individuals were granted parole to enter the U.S. through several administrative initiatives, including Operation Allies (Afghanistan), Uniting for Ukraine, the Cuba-Haiti-Nicaragua-Venezuela (CHNV) policy, and the CBP One App process at the U.S. southern border's ports of entry. Additionally, some individuals encountered by the U.S. Border Patrol at the U.S. southern border were granted humanitarian parole and released into the U.S. between 2021 and 2023. Parole can last up to two years, and their continued presence in the U.S. after their paroled status expires is at the discretion of the current administration. Parole trend statistics are based on information from DHS and CBP. Since there can be a considerable overlap between asylum seekers and paroled individuals, the total number of active paroled individuals is reduced by the delta change in asylum applications from year to year. For descriptive statistics, population targets by nationality, age, and sex are used to randomly select undocumented individuals in the ACS who have entered during the previous two years.
Other protected groups include those with deferred enforcement departure (DED) or other forms of temporal deportation relief, but these groups are considerably smaller in population size and consequently have not been included in the empirical findings. Finally, although many undocumented individuals are known to ICE after detainment or deportation proceedings in immigration courts and could be argued to be protected, this group has even fewer protections than those listed above, and could be statistically duplicated in the estimates. Also, their continued presence in the U.S. is far from protected; in fact, their appearance at an immigration court for potential deportation can lead them to greater scrutiny and increase the likelihood of eventual deportation, again dependent on the policies of the current administration.
The Rise of the Protected Population: Varied Statuses and Characteristics
As of 2023, the protected population is approaching nearly half of the total undocumented population, or about 5.8 million people, rising from about 1.1 million more than a decade earlier in 2012. A decomposition of the protected population trend shows how some protected groups have contributed more to the rise of the protected population than others (see Figure 1). For example, the number of TPS holders has more than doubled from 2012 to 2023. Meanwhile, the number of those waiting in processing and pending application backlogs for nonimmigrant visas has quadrupled, and the number in the SIJS backlog has grown from about a thousand people in 2012 to more than 140,000 in 2023. The number of asylum seekers waiting for a decision is now topping two million, when it was only about a tenth of that number in 2012. And, the number of paroled individuals not already captured in other protected statuses has grown from very few individuals of any remarkable size in 2012 to more than a million individuals in 2023.
Decomposition trend of the protected population, by immigration status. Sources: Author’s calculations based on publicly-available administrative data.
By contrast to the upward direction for most protected groups, the number of DACA recipients has actually decreased in recent years, from more than 800,000 at its 2015 peak to about 544,000 in 2023. This is largely due to many finding a pathway to permanent residency, or not renewing their application in subsequent years. Even though more individuals became eligible for DACA in recent years, application processing has been stayed by the courts; consequently, an inflow of new DACA recipients offsetting those not renewing or obtaining permanent residency is not occurring. 9
Besides the absolute number of protected individuals rising, it is notable that the increasing number of protected individuals occurred across all recent administrations, but with particularly higher increases during two different Democratic administrations: a doubling during Obama's second term (1.1 million in 2012 to 2.2 million by the end of 2016), and a near doubling during the first three years of Biden's term (3.1 million in 2020 to 5.8 million as of 2023). In contrast, the number of protected individuals during Trump's 2017–2021 term in office increased more incrementally, mostly due to an increase in asylum seekers, not because of any additional protection policies offered to other undocumented groups.
Also notable is the increased diversity of protected groups, both in number and relative size. In 2012, three groups dominated the protected landscape: TPS, DACA, and asylum. As of 2023, many other protected groups, once more limited in size, had grown substantially, particularly among nonimmigrant visa adjustment backlogs and paroled individuals (Table 1).
The demographics of protected groups are dissimilar to each other and also in comparison to the unprotected population. For example, up until recently, most TPS holders have had TPS for many years, and thus are more similar in age and years in country as the more long-term, unprotected population. DACA recipients, by the very nature of the policy, were children when they entered the U.S., so they are both a younger population and have lived in the U.S. for many years. Meanwhile, SIJS are young as they must be a juvenile or of young adult ages to qualify and have lived, on average, only a few years in the U.S. Similarly, most paroled individuals have been in the U.S. for a short period of time, and skew, on average, quite young, as their age composition varies from young children, either accompanied or unaccompanied by a parent, to younger adults.
The origins of different protected groups also differ substantially. TPS policies are driven by specific country designations, which explains why there are no Mexicans in this group. By contrast, the overwhelming majority of DACA recipients are Mexican as their arrival into the U.S. as children many years ago reflects that migration pattern in and around 2000. In a similar way to that earlier migration flow, nearly half of the nonimmigrant adjusted backlog as well as the unprotected population are also Mexican. More than half of the SIJS cases are from Central America, mostly representing the large number of unaccompanied minors from this region that have come to the U.S. in recent years. Paroled individuals and asylum seekers reflect a diversity of origin countries and regions, mostly representing countries experiencing internal strife, with very few from Mexico.
About a quarter or more of most protected groups have not completed high school. Two important exceptions to this pattern are DACA recipients, with nearly all completing high school and a significant share with some college education. This can be explained by DACA eligibility requiring the completion of high school equivalency or being in school, resulting in a higher educated population relative to other protected groups. Also, a large number of those adjusting their status are skilled workers, also reflecting a large share with college education who are waiting for an employment-based visa that often requires the completion of post-secondary education.
Protected groups that have lived in the U.S. for many years are also more likely to live in a mixed-status family (having a U.S. citizen spouse and/or U.S. citizen children), including DACA recipients, TPS holders, and nonimmigrant adjustees. By contrast, those who have lived in the U.S. for a shorter period of time, such as asylum seekers, paroled individuals, and SIJS, are, for many reasons, including for their younger ages, less likely to be in mixed-status families.
Labor force participation also varies across adults of protected groups, with higher participation for those living in the U.S. for a long time (DACA recipients, TPS holders, nonimmigrant adjustment, adjusting to permanent residency) while lower for groups in the U.S. for a shorter period of time (asylum seekers, paroled individuals, SIJS). Many of these more recent arrivals, like other protected statuses, have access to work permits, but have sometimes been difficult to obtain due to processing backlogs.
Advocacy, Policy, and Definitional Implications of a Shifting Protected Population
The protected portion of the undocumented population is larger, more temporary, and more diverse than before. The implications of this shift can be felt across multiple spaces, including advocacy, immigration policy, and definitional impacts.
As immigration advocates look to a wide array of opportunities to reform the U.S. immigration system, the simultaneous expansion, as well as looming retraction of some protected statuses, are leading to countervailing strategies. Certainly, the expansion of legal frameworks for arriving immigrants, like various parole policies and increased guidance by authorities in pathways to claim asylum, that together reduce chaos and disorder at the U.S. southern border, are welcomed by immigration advocates. Advocates have also applauded the Biden administration's stabilization of TPS for Central American countries and Nepal, while also designating new TPS countries.
At the same time, however, there is warranted concern that these executive-level protections lack permanency, and could shift with a change in the administration. DACA is an example, whereby attempts to stop the policy by the Trump administration were initially defeated in the courts, but only to be litigated again through lower and appellate courts. Also, the certitude of many of the legal frameworks for those paroled into the U.S. and those ordinarily receiving prosecutorial discretion from the Biden administration may not carry on into future administrations.
Advocates have fought hard for these protections, but because they are subject to the policies of a particular administration and legal challenges, there is greater need by policymakers to find more durable protections, even within the executive branch. Consequently, those working within the machinery of immigration policy across governmental agencies are looking less at broader, new policies, but tweaks to current systems that exist within the bounds of the INA and can stand up to legal challenge. Nonetheless, protections, as we have seen with DACA, when expanded, do not immediately disappear with legal challenge. So there is value for some policymakers, encouraged and supported by advocates, in protecting a greater number of people even if it may result in a legal challenge. Such court processes can take months, if not years, to work through the judicial system; during that time, more undocumented immigrants can be protected, have access to work authorizations, and more fully contribute to their communities. At the same time, when a different administration removes protections, court challenges in the reverse direction can slow their removal.
The most durable form of protection is legislative action. The bifurcation of the undocumented population into protected and unprotected provides a new rubric in mapping legal avenues for advocates and policymakers as they look for immigration relief from Congress. Due to increasing heterogeneity in the status of the undocumented population, seeking additional or more sustained protections from Congress as well as legislative pathways for citizenship for portions of the unprotected population is becoming more segmented, rather than a more comprehensive approach. An undocumented population with a range of liminal statuses now provides a range of menus for immigration reform within Congress (Bolter, Chisti, and Meissner 2021).
As advocates and policymakers reconsider how to describe and categorize the undocumented immigrant population, scholars have for years pointed to the heterogeneity of the undocumented population (Donato and Armenta 2011). This additional dimension of a patchwork of protected statuses provides an even more critical component to understanding how this newly forming segment of the undocumented population should be defined, especially vis-à-vis the longer-standing, unprotected portion.
With the empirical evidence for the growing number of protected individuals, it will be intriguing to see how these groups will self-define themselves going forward in relationship to these legal categories put onto them by the government. Will those who entered since the start of the Biden administration through a legal pathway, such as parole or via a credible fear interview that led to an asylum claim, see themselves as more part of the lawful immigrant population, albeit with an uncertain future? And how would the public's perception of these protected statuses be altered, likely via the media, under a new administration? In their fight to remain in the U.S. with a protected status, would any administrative policy change resulting in a loss of protected status lead to a more positive view by the public of their future within the U.S. And, what political or policy-related circumstances may lead to differing identifications? These pragmatic questions teasing out how the undocumented, and particularly the protected component, is understood by all audiences, including themselves, will remain part of the focus of immigration policy makers and scholars to come.
More globally, it is our international concept of the undocumented population that may be even more challenged by the growing number of protected individuals. The U.S. is not the only jurisdiction that has offered temporary protections for portions of the undocumented populations. Some European countries have historically extended work permits to those in the agricultural industry, or more recently, are offering a form of TPS to those fleeing the Ukraine war. At the same time, many claim asylum even as they cross into Europe irregularly.
It could be argued that with the insistence of some in Europe and other jurisdictions to not include these protected groups within the undocumented population, that the U.S. is actually not a leader on this front, but is catching up to a more global understanding of immigrant populations in liminal statuses. As with the U.S., immigration reform in other countries that offers additional legal pathways for would-be irregular migrants can be few. Consistently, many immigrant destinations are finding ways to restrict immigration through the closure of borders and offshoring of those seeking protections. With little pairing of new legal frameworks for migration alongside increasing political solidification of borders, temporary statuses at the discretion of the government at the time, are often the only mitigating measures available for new immigrants. The pushing of more people into liminal statuses globally will continue to push the conventional bounds of what we consider an undocumented person.
Demographic characteristics of protected and unprotected, “undocumented” populations, by status group.
Sources: Author calculations based on the analysis of 2022 American Community Survey and publicly available administrative data.
