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House Bill Provides Path to Citizenship for Most Legal Dreamers

David J. Bier

House Democrats introduced the American Dream and Promise Act (H.R. 6) yesterday. The primary focus on the legislation—like the Dream Act in the Senate—is to provide a path to citizenship for immigrants brought to the country as minors. Unlike the Dream Act and last Congress’s version of H.R. 6, however, this year’s version extends the path to citizenship to “legal dreamers,” foreign-born children of temporary workers who can grow up in this country in temporary status that they lose at age 21.

Along with many of the legal dreamers themselves, I’ve long advocated for this change, and it will have major implications not only for the kids, but for their parents and the entire employment-based system if this bill becomes law.

Previously, H.R. 6 had only allowed someone who was “inadmissible or deportable” to qualify unless they were in Temporary Protected Status (TPS), a temporary status mostly for immigrants without any other legal status. But the new American Dream and Promise Act greatly reduces this unfair discrimination against legal residents. The new language will allow anyone who “is the son or daughter of an alien admitted as a nonimmigrant” under the E-1, E-2, H-1B, and L-1 temporary work visa programs.

The H-1B program is for skilled employees of U.S. businesses working in specialty occupations. They must have college degrees. Their children are eligible to come with them and grow up in the United States in H-4 dependent status. Their employers can sponsor them for green cards. On their 21st birthday, however, they lose H-4 status and their place in the green card line and the have to self-deport or find another status such as a student visa.

The L-1 program is for skilled intracompany transfers by multinational companies, and they also may bring their minor children. L-1 and H-1B visa holders awaiting green cards are mainly from India. I have estimated that about 100,000 currently in line will age out and lose their chance to become citizens through their parent’s employer’s petition. Overall, there are more than 255,000 dependents awaiting employment-based green cards.

The E programs are for “treaty traders” who are engaging in business operations in the United States, and many are business owners. As Angelo Paparelli details in our “Deregulating Immigration” paper, the Department of Labor makes it very difficult or impossible for entrepreneurs to self-sponsor themselves for green cards, so they can spend decades here with no chance to become permanent residents or U.S. citizens. Their children also lose status at their 21st birthday.

Legal dreamers would still have to meet the other requirements in the bill: continuous presence in the United States since January 1, 2021, under the age of 18 when first coming to the United States and continuous presence since then, graduated from a U.S. high school or is enrolled in a U.S. high school or college, and has not committed certain crimes. While legal dreamers often travel internationally, the bill allows for breaks of up to 90 days and 180 days cumulatively. It also excludes any travel authorized by the Department of Homeland Security (DHS)—which, if the government adopts a reasonable interpretation, should include all travel under H-4 or other lawful status provided by DHS. Those who have already aged out and were forced to leave the country would also be allowed to apply for a green card from abroad if they departed the country on or after January 20, 2017 if they had been physically present for at least four years.

According to the plain text, the applicant’s parent does not need to currently be in H-1B, L-1, or E statuses. Many legal dreamers’ parents have left the United States or received their green cards after the child aged out. The text only states that the applicants must currently be the son or daughter of someone “admitted” under those classifications, but the language doesn’t say either “who is” or “who was” admitted. Since it doesn’t specify, it should include both groups (that is, anyone ever admitted under those classifications) since, in order to exclude one or the other, the language would need to explicitly state so.

While it should include the vast majority of dreamers, it’s worth noting that the bill does leave out some legal dreamers who are children of workers under other temporary statuses, such Os for those with extraordinary ability, Fs for student workers and graduates of U.S. universities working under Curricular Practical Training and Optional Practical Training programs, Ps for professional athletes, Js for various classifications of exchange program workers, Rs for religious workers, and TN workers who work in the same jobs as H-1B workers but who have citizenship in Canada and Mexico. That’s an oversight that hopefully could be corrected by the House Rules Committee or the Senate.

Nonetheless, the American Dream and Promise Act has greatly improved from last Congress by including the large majority of legal dreamers in the United States. By allowing them to obtain U.S. citizenship, they will eventually be able to sponsor their parents for green cards outside of the hopelessly backlogged employment-based system. Freeing both the parents and kids from the needlessly bureaucratic and controlled temporary statuses would hold great economic benefits for this country.

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Biden’s “Wait in Mexico” Is Worse Than Trump’s “Remain in Mexico”

David J. Bier

Yesterday, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas updated the press on the Biden administration’s efforts to “replace the cruelty of the past administration,” especially the Trump administration’s “Remain in Mexico” program where asylum seekers were stuck in Mexico for months. Yet in practically the same breath, Mayorkas articulated an even worse policy: Wait in Mexico.

Of asylum seekers, he said, “They need to wait. But they need to wait with a particular goal in mind. We are not saying don’t come. We are saying don’t come now.” He clarified that if they don’t wait, DHS will use the Center for Disease Control’s (CDC’s) “Title 42 authorities and return them to Mexico, and we have done that.” If Remain in Mexico was cruel, is “Wait in Mexico” better? Definitely not.

Under the Trump administration’s Remain in Mexico policy known as the Migrant Protection Protocols (MPP), immigrants who crossed were returned to Mexico to await a hearing date north of the border. At a final hearing after months or years living homeless in Tijuana, Juarez, or Matamoras, an immigration judge could at least theoretically grant them asylum and entry into the United States.

Under the Biden administration’s Wait in Mexico policy, immigrants and families dumped back into Mexico would not even receive a hearing date to await. They do not enter the asylum process at all. All they get from the Biden administration—beyond a push in the back on their way out the door—is the vague promise that at some undefined future time this administration will do… something to make things better.

Because DHS is hardly accepting in any of those returned under Remain in Mexico (despite celebrating ending it), the Wait in Mexico returnees are right now sitting with them in literally the same “squalor” that Biden denounced during his campaign. Biden insisted that he opposed making anyone wait for asylum in another country, and yet here is his DHS secretary announcing a worse version of the same idea.

Mayorkas says that DHS is “obligated” to expel asylum seekers under the Wait in Mexico program because a Centers for Disease Control (CDC) declaration that found that anyone crossing without documents posed a threat to public health during the COVID-19 pandemic. Yet the CDC’s own health experts rejected the order, and the only reason the CDC signed the order is because the Trump White House forced the agency to do so.

“We were forced to do it,” one former official who worked on public health told CBS News. “We exhausted all of the options. We delayed. We slow??rolled. We flat out said there’s not a public health justification. We said no. And then we were told, ‘Do it.’ So, at the end of the day, your options are to resign in protest or sign it. And if you resign in protest, the next person is just going to do it anyways.”

More than seven dozen public health experts at leading public health schools, medical schools, hospitals and other institutions wrote a letter in January to the Biden administration that denounced the purported health basis for the expulsions. “Imposing restrictions on asylum seekers and other migrants based on immigration status is discriminatory and has no scientific basis as a public health measure,” they wrote.

They noted that while the CDC order claims that all asylum seekers would need to be held in “congregate” settings where COVID-19 could spread, the fact is that DHS has the authority to process asylum seekers without detaining them. The health experts told DHS that the science supports alternative procedures, including testing, distancing, masking, and releasing people. DHS could also move more of its intake procedures outdoors.

Nonetheless, the Biden CDC last month said in a regulatory notice that the CDC expulsion order was based on the “most current information” regarding COVID-19. That wasn’t correct at the time, and it certainly isn’t correct now.

DHS Secretary Mayorkas is bragging about its end to Remain in Mexico—which hasn’t ended and will take months to end at the current pace that immigrants are being admitted—yet before that policy is even over, it is instituting a Wait in Mexico program that has all the threats and disadvantages of Remain in Mexico with none of the upsides.

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DHS Should Release Supplemental H-2B Visas Immediately

David J. Bier

Last year, Congress authorized the Department of Homeland Security (DHS) to effectively double this year’s H-2B visa cap for nonagricultural seasonal employers in landscaping, forestry, seafood, and other industries. Employer requests exceed the initial cap on February 12, but in over two weeks, DHS has announced no plans to release any additional visas. This failure compounds President Biden’s ongoing error of not rescinding Donald Trump’s H-2B visa ban on some types of H-2B workers.

Employers will need their workers by April 1, so the administration has barely one month to notify employers of the new process, employers to re??request workers including whatever new evidence DHS requires, the State Department to issue the visas, and the workers to arrive. By waiting this long, DHS is risking that employers will not receive their workers in time, disrupting important business operations during a time of economic recovery. The Department of Labor (DOL) Inspector General has found that H-2B delays “have serious adverse effects on business owners and local economies.”

While President Trump justified his visa ban on certain H-2B workers on protectionist economic grounds, the fact is that all H-2B jobs are offered to U.S. workers for more than two months prior to the H-2B workers receiving their visas. Only if no U.S. workers applied would the Department of Labor (DOL) certify the jobs as unfilled and available for H-2B workers. As Figure 1 shows, H-2B jobs are routinely not filled by U.S. workers, and in 2020, DOL certified a record percentage of jobs as unfilled: 93 percent.

In the top industries, the percentage of certified jobs was even higher. While there are many H-2B occupations, the top three in 2020 were landscapers (46 percent of certified jobs), forestry workers (7 percent), and meat and seafood cutters and trimmers (7 percent). Among the top three industry??occupation combinations, the certification rate was even higher: 96–98 percent.

There is no economic justification for forcibly keeping these jobs unfilled. When immigrants quickly fill difficult??to??fill positions, they increase demand for other jobs elsewhere in the economy that U.S. workers are more likely to want. By quickly filling these jobs, immigrants grease the wheels of the economy, allowing production to resume much faster—which opens up more desirable jobs for Americans.

DHS should reject Trump’s primitive protectionist policies and focus on rapidly increasing economic growth, which would benefit everyone in the United States. From 2017 to 2019, the Trump administration failed to increase the H-2B cap to the extent that Congress authorized it. The largest increase available is 64,716, and the largest increase allowed was only 30,000 in 2019, and in 2020, it failed to provide any visas.

There is no reason for the Biden administration to take this same limited approach. DHS should adopt these two recommendations:

  1. Increase the H-2B visa cap to the greatest extent possible to guarantee that no jobs go unfilled, costing the U.S. production and overall job growth. When Congress initially adopted this supplemental visa provision in 2017, it did not expect that the administration would cap it. It was supposed to be based on a “determination that the needs of American businesses cannot be satisfied in fiscal year 2021 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” which is already what the DOL certification shows.

  1. Set aside up to 10,000 visas for Guatemalans, Hondurans, and Salvadorans, as a way to channel some workers into a legal alternative to illegal immigration. DHS had planned to release additional visas this way in 2020, but then cancelled the supplemental cap entirely.

Using the supplemental cap is the easiest way to ease the economic burden of the H-2B cap. But the administration has other ways as well, as I explain in my H-2B paper as well as in our extensive list of executive actions for the Biden administration. The administration has the ability to certify H-2B jobs for three years as opposed to a single season, freeing up cap space each year. It can also authorize the spouses and older minor children to work, and it could allow workers to extend their stays beyond the current 3??year regulatory limit (as the Trump administration did for certain industries in 2020).

These reforms would allow the H-2B program to reach its highest economic potential, which is extremely useful during the economic recovery. The Biden administration has already rescinded the protectionist ban on immigrant visa recipients for future legal permanent residents partly on the grounds that “the suspension of entry…. does not advance the interests of the United States. To the contrary, it harms the United States including…. industries in the United States that utilize talent from around the world.” This same rationale applies both to the H-2B visa restrictions and the delay on issuing supplemental H-2B visas. He should act on both issues immediately.

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Biden Rescinds Immigrant Visa Ban, Keeps Worker Ban: Who Benefits? 

David J. Bier

President Joe Biden rescinded Donald Trump’s president proclamation banning new immigrant visas for most new legal permanent residents coming from abroad. Trump justified the ban based on old, disproven economic protectionist arguments. He claimed immigrants would take jobs. During his campaign and in this proclamation, President Biden rejected this idea. Yet incongruously, he’s keeping an identical ban on temporary work visa holders.

The State Department issued nearly 290,000 fewer immigrant visas in the categories that the ban targeted during the year that it was in effect. If they are not from a country on which Biden has imposed a countrywide entry ban—mostly Europe, South Africa, Brazil, China, and Iran—these immigrants will now be able to immigrate to the United States. This is great news for them and for the Americans with whom they plan to associate.

Altogether, the banned categories saw a 90 percent decline in visa issuances over the last year. The family??sponsored categories saw an average decline of 94 percent, while employees of U.S. businesses were least affected (partly due to a favorable court decision that exempted employees of members of the National Association of Manufacturers and the Chamber of Commerce). 83 percent of the banned immigrants were family members of U.S. citizens and legal permanent residents.

Spouses and minor children of U.S. citizens were exempt from the ban, but they also saw a decline in the number of visas issued due to the travel restrictions. According to a government filing this month, the State Department had nearly 473,000 documentarily qualified family??based immigrant visa applicants—presumably some of these cases will ultimately turn into denials, but this will be a huge undertaking for the consulates to process.

Four ideas to help with this backlog (mostly borrowed from our one??time Cato author David Kubat):

  1. The government should use “parole??in??place” authority to waive the requirement to travel to consulate abroad for certain applicants who would otherwise be eligible to adjust in the United States if not for the fact that they initially entered without inspection (illegally).
  2. It should adjudicate applications for waivers on grounds of inadmissibility before conducting the interview to save time and streamline the process. Under the current process, the State Department waits until after they’ve taken your fingerprints, medical evaluation, and other documents and then get denied. Only then do you restart the many months??long process of trying again.
  3. It should allow for remote or virtual interviews to speed the interview process. Remote immigration court hearings are already happening.
  4. It should waive as many interviews as possible for applicants with no red flags and a history of travel to the United States.

As Figure 1 shows, the number of immigrant visas had already declined by more than a quarter before the pandemic. This means that even without the visa bans, the new administration will have to go further to rescind the numerous restrictions on legal immigration that led to that decline.

Of course, the other major visa ban—on the most common nonimmigrant work visa categories for skilled and seasonal nonagricultural workers—is still in effect. President Biden states in his order revoking the immigrant visa ban, “The suspension of entry…. does not advance the interests of the United States. To the contrary, it harms the United States including…. industries in the United States that utilize talent from around the world.” These lines apply just as much to the nonimmigrant visa ban, yet Biden has chosen to keep it.

The nonimmigrant visa ban and immigrant visa backlog are just two of the numerous issues that Biden will have to address to get the legal immigration system back to what it was pre??Trump. There are also country??specific entry bans on Europe, South Africa, Brazil, China, and Iran that lack any health basis. The public charge rule to keep out low??income immigrants is also still in force. USCIS has not reinstated its prior deference memo and so is still relitigating past approved petitions and applications in order to increase denials. The immigration forms still contain the bogus, vague, time??consuming, and expensive “extreme vetting” questions based on a faulty reading of the data on vetting failures. At the border, Border Patrol is still “expelling” asylum seekers under a political CDC order. The immigration courts and asylum process generally is still in chaos.

With this action, the president makes his first real attempt to reinstate the system to how it once was, but he’s not even 10 percent of the way there. Still, it’s a great first step.

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Biden’s Bill Won’t Solve Future Illegal Immigration Without Guest Workers

David J. Bier

President Biden endorsed the U.S. Citizenship Act last week that would create a path to citizenship for most noncriminal illegal immigrants in the United States. Republicans were quick to criticize the bill’s lack of money for border security. But more funds for the border bureaucracy won’t stop illegal immigration. Sadly, however, the better solution—more guest workers—also didn’t make the cut.

The failure to include guest workers violates a campaign promise by Biden. His immigration platform states that his proposed legislation would “expand opportunities for individuals seeking temporary worker visas or another form of legal status for which they may qualify to be able to come to the U.S.” Yet the U.S. Citizenship Act doesn’t address this issue at all.

The relationship between more Mexican guest workers and less illegal immigration from Mexico is as clear as any long??term immigration trend in recent American history. In the 1950s and 1960s, the Bracero program funneled hundreds of thousands of Mexican workers into the legal system to U.S. farms every year, and illegal immigration virtually disappeared.

But in 1965, Democrats terminated the Bracero program after unions complained about it, citing now??disproven claims that doing so would increase farm wages. By 1970, illegal immigration had spiked again, and many Republicans urged the resurrection of the Bracero program. Indeed, former??border state governor Ronald Reagan and presidential candidate repeatedly argued for an open??door policy with Mexico.

Once elected, Reagan tried to get more guest workers through Congress, but ultimately, Democrats enacted only an amnesty for long??term illegal residents alongside a temporary program that allowed former farm workers to stay or reenter the United States at the southern border and obtain permanent residence. Cross border illegal traffic did fall but then continued at still??high, albeit lower rates.

In the 1990s, ramping up the Border Patrol became a bipartisan goal. But without a guest worker program, it had a perverse effect. It became so expensive to cross that anyone who made it in never left, building permanent, albeit illegal, lives here. This caused the illegal population to balloon even as crossings declined.

But then something interesting happened. Permanent lives meant most illegal workers switched to permanent, year??round jobs, so suddenly, employers faced a shortage of workers for temporary or seasonal positions. With declining workers coming across the border, employers urged reforms to the seasonal guest worker programs—H-2A for agriculture and H-2B for others—that would make those visas more widely available.

In a few years, farmers, landscapers, and other seasonal employers were recruiting tens and then hundreds of thousands of legal H-2A and H-2B guest workers from Mexico, and crossings again began to fall even further and faster. Just before the pandemic, illegal immigration had hit a sustained low rate last seen under the Bracero program in the 1960s.

Despite their success, the H-2 programs have a major shortcoming: they are only for seasonal or temporary jobs. Permanent, year??round positions don’t qualify, so employers returned to workers crossing the border. With Mexicans waiting for visas, the new wave of border crossers were from Central America. Rather than evade detection, they crossed, requested asylum, were released, and ultimately received work permits while they waited for a final decision.

The result is hundreds of thousands of Central Americans legally working in the United States in year??round jobs as they waited for asylum hearings. But that result came at huge costs to them, their families, and the government. They have to travel illegally through Mexico over a thousand miles, get arrested, and caged often in deplorable conditions just to fill open positions that employers are hiring for.

A better idea would be to allow them to obtain visas to work in year??round jobs in the United States and let them fly to the United States. Yet the Biden bill not only lacks this reform. It doesn’t do anything to increase temporary workers at all from anywhere. That’s a huge error with profound long??term effects. Biden’s original immigration platform—on which campaigned—explicitly called for more guest workers for Central America. He should return to that plan.

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Biden Can Get Most of His Immigration Bill Done on His Own

David J. Bier

President Biden and Democrats in Congress unveiled the U.S. Citizenship Act last week. The 353??page bill is more modest than the sweeping 1,000-page comprehensive bill that passed the Senate in 2013, but it nonetheless proposes some significant changes in the operation of the U.S. legal system. Given that Democrats never bothered to try to get their support, even moderate Republicans universally denounced the effort as a partisan messaging bill, and so it has almost no chance of becoming law.

But the fact is that Congress has already given President Biden authorities to carry out much of the agenda on his own without the bill becoming law. The Supreme Court has unfortunately recognized that Congress has the constitutional authority to delegate to the president broad powers on immigration, and it has. Presidents (especially but certainly not exclusively the last one) have usually used their powers to restrict immigration and interpret the laws restrictively. But this is entirely a policy choice.

As I and my coauthors explained last year in Deregulating Immigration: A Blueprint for Agency Action, President Biden has the ability not just to reverse Trump’s restrictive regulations, but many other restrictions that predate him as well. While it is regrettable that Congress passes ambiguous laws authorizing enormous executive discretion, the goal (as attorney Angelo Paparelli and I argue) should be to interpret these statutes in favor of the liberty of immigrants and the Americans with whom they associate, not as restrictively as possible.

Certainly, a successor could eventually reverse many of the actions that Biden takes, but as President Trump’s term in office showed, that is much easier said than done, and many are simply irreversible for the immigrants who already benefited from them. Certain immigration documents cannot simply be revoked by another administration on a whim. Even if they could be reversed, these actions would have great benefit in the meantime.

President Biden is uniquely positioned to improve the immigration system. While he should work on bipartisan legislation to update the laws and make them unambiguously open to immigration, he should not make the mistake that President Obama made by spending the majority of his term acting as if he is required to adopt the worst possible interpretations and worst applications of the current laws.

Legalization of immigrants

Biden has two different authorities from Congress that he could use to grant legal status and work authorization to almost all noncriminal illegal immigrants in the United States right now. The first is Temporary Protected Status (TPS). It is a status that Congress has told the administration to grant to those who cannot be humanely returned to their home countries due to a crisis there. TPS holders have work permits so they can be lawfully employed in the United States. The statute specifically mentions a “pandemic” as a crisis that would be the basis for TPS. Given the state of the world right now, Biden can grant TPS to whoever he wants.

The second option would be to grant illegal immigrants “parole??in??place.” Parole??in??place relies on the authority granted by Congress to the Department of Homeland Security (DHS) to “parole” or waive the normal legal barriers to entering. Parole??in??place refers to granting “parole” to someone who has already entered. Last year, Congress explicitly recognized the use of parole??in??place on behalf of broad categories of illegal immigrants as a valid exercise of the parole authority. TPS and parole are legally unassailable authorities, well??grounded in statute, and have few meaningful constraints on their use. Prior presidents have already used them on behalf of millions of immigrants over the last several decades without any successful legal challenges.

Path to citizenship for some immigrants

Biden cannot create a new path to citizenship for all illegal immigrants, but he can allow those who—if not for their illegal status—already meet the criteria for green cards to receive those green cards, which would open up a pathway to citizenship. He can do this—as his vice president suggested—by granting these immigrants “parole??in??place” (described above). Biden could use this authority to grant parole to those immigrants who can through marriage, employer sponsorship, or family connections receive green cards, which would open up the current path to citizenship. Again, this authority is well??tested, and many illegal immigrants have already received green cards through this mechanism.

Let family members wait for green cards inside the United States

The bill expands the V visa eligibility criteria to include all family members of U.S. citizens and legal permanent residents who are waiting for green cards abroad but cannot receive one due to the immigration caps. About 3.8 million family??sponsored immigrants were waiting abroad as of November 2020. Again, Biden can parole these immigrants into the country, as attorney Cyrus Mehta explained in our deregulating immigration paper last year. In fact, the government has already been using exactly this for Haitians, Cubans, and certain Filipino veterans of World War II. There is no reason not to make such a program available to all nationalities.

Parole Central Americans in the family??sponsored backlog

This provision requires Biden to use parole directly on behalf of certain Central Americans in the family??sponsored backlog. Not only is this redundant to the V visa expansion, there’s no reason for Biden to wait for this bill to pass to do this since parole can be made available at the discretion of the administration at any time. Another provision requires him to reinstate the Central American Minors program, which granted parole to children with U.S. relatives in legal statuses in this country.

Establish refugee processing centers in Central America

The bill requires the president to create refugee processing centers in Central America and expand refugee processing there. The Refugee Act of 1980 gave the president total authority to set the refugee limit and establish the criteria for selecting refugees for resettlement. President Biden has already used that authority to raise the refugee ceiling for this year. Trump had allotted 1,500 slots for Central Americans, while Biden will give 5,000 slots to all Latin America and the Caribbean—nowhere close to the amount of resettlement needed. 5,000 would not cover the demand for a single week of the year.

Recapture unused employment??based green card cap numbers

The bill requires the administration to recapture the roughly 226,000 employment??based green card cap numbers that were not used over the last 30 years, mainly due to bureaucratic delays. As former??DHS official Amy Nice explained in our deregulating immigration paper last year, the administration already has the authority to do this when it failed to implement the laws as Congress intended. She notes that in the 1970s, the State Department did recapture green card numbers that it had lost.

Exempt spouses and minor children of green cards for family and employment??based immigrants and diversity lottery winners

The legislation would exempt spouses and minor children of new legal immigrants from the green card caps. As attorney Ira Kurzban explained in our deregulating immigration paper, nothing in the law requires the administration to count immediate family against the caps for family, employment, and diversity categories. By freeing up these numbers, exempting derivatives would roughly double the employment??based numbers and increase the family??based cap by about 50 percent. He also notes that there is precedent for this: the State Department also changed its green card counting policy for Cuban Adjustment Act cases after several years of counting them against the caps in the 1960s and 1970s.

Increase requirements for immigration bans

The bill increases the standards for a president to impose an immigration ban—banning nationality or religious??based bans and requiring that any ban be based on specific credible facts supporting a compelling governmental interest in a ban—and only if the ban is narrowly tailored using the least restrictive means to achieve the interest. It also requires consultation with Congress within 48 hours about the ban. President Biden currently has the ability to set whatever standards he wants for bans, so he could increase the requirements on his own, but he has instead chosen to continue blanket bans on almost all legal immigration and temporary workers to “protect the labor market” using the same weak protectionist justifications as his predecessor. There is nothing legally stopping President Biden from removing Trump’s immigration bans.

Authorize spouses and children of H-1B workers to work

The bill explicitly requires spouses and minor children of H-1B skilled workers to be given permission to work in the United States. But as I explained in our deregulating immigration paper in November, the administration already has the authority to authorize employment for dependents of H-1B workers (and any other temporary workers). In fact, DHS already issues employment authorization documents to certain spouses of H-1B workers already in the process of becoming permanent residents. There is no reason to limit the use of this authority when so much economic value is being lost by keeping them unemployed.

Prevent children of H-1B workers from losing status

The bill allows children of H-1B workers on H-4 visas to maintain their H-4 status after their 21st birthday. DHS can arguably already do this since the statute only requires the person who receives an H-4 visa to be under the age of 21 at the time that they “accompany or follow to join” the H-1B worker. But even if this is not the case, the Biden administration could simply parole H-4 children back into the country if they age out of status and must leave the country, as attorney William Stock explains in our deregulating immigration piece.

Other provisions of the U.S. Citizenship Act that Biden could implement now:

  • Expand use of alternatives to detention for detained immigrants: These are already being used on a smaller scale.
  • Hire 165 more immigration judges to process immigration court cases: Trump hired even more than this.
  • Increase hiring standards and training for immigration judges
  • Implement electronic filing at immigration courts: Other agencies already permit this.
  • Access to legal orientation programs for detained immigrants
  • Restrict use of force by all immigration agents
  • Investigate and prosecute human smugglers

None of this is to say that the president having such powers is a good thing, it most certainly is not. As Alex Nowrasteh and I have written, immigration power by executive decree is a terrible institutional situation that Congress should remedy. The president should not have the unilateral power to restrict immigration. But the fact also remains that President Biden has well??recognized legal authority to do reverse these restrictions and implement the majority of the U.S. Citizenship Act’s major provisions. Yet as I detail in Reason, so far he has not taken hardly any measures to use them. He should not wait. President Trump did not wait, and he substantially worsened the U.S. immigration system. Biden has an opportunity to reverse those decisions and lawfully improve immigration policy.

Democrats already know that the U.S. Citizenship Act is not going to become law, and he should learn a lesson from President Obama about attempting late??term executive actions like DACA that are rushed, failed to get done, or get caught up in court actions without time to correct any procedural defects. President Biden should act now to deregulate as much of the legal immigration system as possible while working out a bipartisan compromise to get the rest done.

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Biden Tells the State Department to Launch Private Refugee Sponsorship

David J. Bier

President Biden issued an executive order providing for a number of changes to the U.S. refugee program that President Trump had gutted during his four years in office. One important change follows a recommendation from Cato’s compilation of 30 executive actions to restore legal immigration (and many other times): private refugee sponsorship. The president states:

To meet the challenges of restoring and expanding USRAP, the United States must innovate, including by effectively employing technology and capitalizing on community and private sponsorship of refugees, while continuing to partner with resettlement agencies for reception and placement.

As I’ve explained before, private sponsorship has been highly successful in Canada for decades and following the United Nations’ call for more such programs at least seven other countries have created some version of private sponsorship since 2014. The president can implement a privately funded refugee program with his existing authority under the Refugee Act of 1980, which already requires him to consider available private funds before setting the refugee target.

While this is an extremely positive development, the order provides no specifics on implementation. The State Department had previously committed to creating a private sponsorship program under the Obama administration in 2016, so hopefully the department already has some particulars worked out.

I have outlined four models under which private individuals or community groups could select refugees for resettlement under a private sponsorship program. The Biden administration could implement all of them simultaneously.

  1. Allow the United Nations High Commissioner for Refugees (UNHCR) to recommend certain refugees referred for resettlement for private sponsorship.
  2. Allow private sponsors to choose from a pool of refugees referred for resettlement under the existing system.
  3. Expand existing Priority 3 (P-3) family sponsorship to include more extended relatives as was done for Bosnians in the 1990s could expand sponsorship through an existing channel. Similarly, I proposed that the administration grant refugee status to any family who are refugees caught in the green card backlog. Family of Americans shouldn’t die abroad waiting for a green card.
  4. Allow sponsors to select any refugees that they want abroad. While more complicated to administer, the ability to select refugees of particular concern to the sponsor would create a powerful incentive to engage with the program.

Another important element that must be a part of any private sponsorship program is the concept of “additionality.” Any privately sponsored refugee should come in addition to those resettled by the U.S. government. If private resettlement merely does what the government already committed to do, that vastly reduces the incentive to participate.

However, because the president has not yet raised the refugee cap, we aren’t sure if private resettlement or “additionality” will be part of this year’s plan. If the president does raise the refugee limit to 125,000, it will come close to meeting another recommendation in our compilation of 30 ideas for the administration: that more resettlement is warranted due to increasing numbers of refugees worldwide. This would reverse a trend of the United States taking a decreasing share of the worldwide refugee population. 

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The House Could Vote on These 10 Immigration Bills in March

David J. Bier

The rules of the House of Representatives normally require that legislation receive a committee hearing, markup, and vote before receiving a vote on the House floor. However, the rules adopted by the House in January waive this requirement until April 1 for bills that previously passed the House. This expedited process could encourage the House to act quickly on legislation it passed last Congress. The last votes scheduled on the House calendar before April 1 are on March 12—meaning that if the House uses this procedure, it would have just over a month to make it happen.

There are a couple of important differences between this Congress and last Congress that could make it more difficult to pass these ten bills. First, Democrats have a slimmer majority (220 now v. 235 last year with 218 being the majority of the House). This means that the Democrats have less margin for error within their party. Second, the attack on the Capitol by some Republican voters, the attempt by 139 House Republicans to overturn the election, and the impeachment and trial of Donald Trump has created unusual obstacles to even small??scale bipartisan cooperation.

The ten immigration bills that passed last Congress cover a wide range of topics, including legalization of certain Dreamers and farm workers, green card reforms for high skilled workers, standards and oversight of the Department of Homeland Security (DHS), restrictions on presidential authority, and greater legal protections for people detained by DHS agencies. Overall, the bills fall far short of comprehensive reform, but they would nonetheless constitute significant and generally positive changes to the system.

House??Passed Immigration Bills from the 116th Congress

  1. H.R. 6 — American Dream and Promise Act of 2019 (passed 237 – 187 on June 4, 2019)

Every Democrat and seven Republicans (Fred Upton — MI, Chris Smith — NJ, Dan Newhouse — WA, Brian Fitzpatrick — PA, Mario Diaz??Balart — FL, Don Bacon — NE, and Will Hurd — TX) voted for this bill last Congress. Of the seven Republicans, only Hurd is gone, and a couple more Republicans who defeated Democrats in November may vote for this bill. The unanimous support from Democrats with some Republicans virtually guarantees that this bill will receive a vote by March 12.

The bill provides the opportunity to receive legal permanent residence (green cards) to certain illegal immigrants who entered the United States at least four years ago as children before the age of 18 as well as those in the Temporary Protected Status program as of January 1, 2017—about 2.6 million people, according the Migration Policy Institute’s Julia Gelatt.

  1. H.R.1044 — Fairness for High??Skilled Immigrants Act (passed 365 – 65 on July 10, 2019)

All but eight Democrats and 57 Republicans supported this bill. The lopsided vote is the second time that the House of Representatives has passed this bill with majorities of both parties voting in favor since 2011. This would seem to make it a lock to get fast??tracked this Congress, but unlike the other bills on this list, the Senate actually amended and passed this bill as well. Normally, this would be a positive development, but because the House disagreed with its changes, it may complicate its decision to bring the bill to the floor quickly. But the complication doesn’t rule out early action. The House may want to just kick it back to the Senate quickly to get the process going.

The bill phases out the country limits for employment??based green cards over three years and raises the country caps from 15 percent for family??sponsored immigrants. Currently, no more than 7 percent of green cards in the employment? and family??based categories may go to immigrants from any single birthplace (unless they would otherwise be wasted), leading to exceptionally long waits for Indian immigrants. There are 1.2 million employment??based immigrants who would be affected by the bill. The Senate added several complex provisions, but the dealbreaker for the House appears to have been a limit on the number of H-1B workers who can receive green cards and a ban on adjusting to legal permanent residence any Chinese national who was ever “affiliated” with the Chinese Communist Party.

  1. H.R.3239 — Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (passed 233 — 195 on July 24, 2019)

All Democrats joined by one Republican (Don Young — AK) voted for this bill. The unanimous support from Democrats and the high visibility of the issue makes this bill a plausible one for action early this year. On the other hand, circumstances have changed dramatically at the border since July 2019. Crossings are still down, and the new administration has promised to create its own standards. It is possible that House Democrats may want to allow that process to play out before imposing its own rules.

The bill requires health screenings of detained immigrants at the border and sets timelines for those screenings. It requires the provision of interpreters, chaperones, and mental health treatment when necessary. It also mandates certain baseline standards for care of detainees.

  1. H.R.549 — Venezuela TPS Act of 2019 (passed 272 – 158 on July 25, 2019)

Every Democrat and 39 Republicans voted for this bill. The strong bipartisan vote makes this legislation a strong contender for the fast??track treatment in 2021. However, the fact that President Biden could unilaterally make the bill’s changes could mean that the administration may pre??empt House action.

The bill would designate Venezuela as a country whose nationals are eligible for Temporary Protected Status (TPS). TPS is a status provided in situations where it would be inhumane to force a person in temporary or illegal status back to their home country, such as during the socialist country’s economic and political crisis. The bill would designate Venezuela for an initial period of 18 months.

  1. H.R.2203 — Homeland Security Improvement Act (passed 230 – 194 on September 25, 2019)

All but one Democrat voted for this bill with all Republicans opposing it. The lack of Republican support would make a vote this Congress tighter, but the near??unanimous Democratic support could allow this bill to see the floor this month.

The bill would establish an independent, neutral, and standardized process to assist individuals in resolving complaints related to U.S. Customs and Border Protection and Immigration and Customs Enforcement, a Border Oversight Panel, which shall make recommendations related to border enforcement policies, and a Border Community Liaison in each Border Patrol sector on the northern and southern borders, which shall consult with and receive feedback from border communities on ICE and CBP policies and activities.

  1. H.R.565 — AMIGOS Act (passed by voice vote on December 3, 2019)

The bill passed by voice vote, meaning that no one in either party objected to its passage and requested a recorded vote. This means that leadership of both parties agreed to it, and none of the anti??immigrant members of the House cared enough to object (perhaps because it would pass so overwhelmingly).

The bill would add Portugal to the list of countries whose nationals may participate in the E-1 and E-2 nonimmigrant visa programs for treaty traders and investors. The E-1 program allows a nonimmigrant to enter “solely to engage in international trade on his or her own behalf” along with certain of their employees, and their spouses and minor children. The E-2 program is for entrepreneurs who invest significantly in their businesses, certain of their employees, and their spouses and minor children.

  1. H.R.5038 — Farm Workforce Modernization Act of 2019 (passed 260 – 165 on December 12, 2019)

All but four Democrats (Jared Golden — ME, Ben McAdams — UT, Bobby Scott — VA, Rashida Tlaib — MI) voted for this bill, and they were joined by 34 Republicans—nearly all of whom will return. Again, with bipartisan support and near unanimity among Democrats, this bill is a strong candidate to receive the fast??track treatment this coming month.

The legislation would provide the opportunity for illegal immigrant farm workers and their families to receive legal permanent residence (green cards). It would also improve the H-2A guest worker program’s minimum wage requirement and allow some year??round farmers to access the program. It also creates a pilot program whereby employers can hire H-2A workers who switch from one employer to the other on the same basis as any other U.S. worker with only the requirement to pay the H-2A minimum wage. The bipartisan compromise that led to nearly three dozen Republicans to back it was a mandate for farmers to use the flawed E??Verify employment verification program.

  1. H.R.2877 — To add Ireland to the E-3 nonimmigrant visa program (passed by voice vote on March 9, 2020)

The bill passed by voice vote, meaning that no one in either party objected to its passage and requested a recorded vote. This means that leadership of both parties agreed to it, and none of the anti??immigrant members of the House cared enough to object (perhaps because it would pass so overwhelmingly). The bill previously passed the House on a voice vote in 2018 under GOP House leadership.

The legislation adds Ireland to the E-3 nonimmigrant visa program, which is effectively an H-1B program solely for Australia with a cap of 10,500. The Irish would receive the same number of visas as Australians used in the prior year. Any company that hired the Irish E??3s would be required to enroll in the flawed E??Verify employment verification program.

  1. H.R.2214 — NO BAN Act (passed 233 – 183 on July 22, 2020)

All Democrats and two Republicans (Will Hurd — TX and Brian Fitzpatrick — PA) voted to pass the NO BAN Act last Congress. The unanimous support may spur action again this Congress, but the unanimity was achieved when Donald Trump was president, President Biden has already used the power to ban immigrants very early in his term. On the other hand, Biden included the bill explicitly by name in his legislative proposal to Congress, so he almost certainly cannot publicly oppose any House action on it.

The NO BAN Act restricts the authority of the president to ban immigrants or nonimmigrants by outlawing bans based on religion, race, sex, nationality, place of birth, or place of residence. It also requires that any ban by the president narrowly tailors the suspension using the least restrictive means to achieve a compelling government interest. It also creates a rebuttable presumption in favor of granting family??based and humanitarian waivers to the ban, and it explicitly authorizes anyone in the United States harmed by a ban standing to challenge to sue.

  1. H.R.5581 — Access to Counsel Act of 2020 (passed 231–184 on July 22, 2020)

All Democrats voted for this bill, and all Republicans voted against it. The lack of Republican support would make a vote this Congress tighter, but the unanimous Democratic support could allow this bill to see the floor this month.

The bill explicitly requires the Department of Homeland Security to allow access to immigration counsel for anyone subject to secondary or deferred inspection at U.S. ports of entry. No one can give up their legal permanent resident status without waiving in writing their right to confer with an attorney.

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DOL Wage Rule Affects All Major Employers, 70% of H-1B Requests, After DOL Said Few Should Be Affected

David J. Bier

In October 2020, DOL issued an “interim final rule” effective immediately that inflated the “prevailing wage”—or minimum wage—that employers must offer and pay under the H-1B temporary and permanent employment??based immigration programs. As I explained at the time, the rule was deeply flawed. It misrepresented how high wages would rise under the rule and so also miscalculated the rule’s costs.

Businesses commenting on the rule change through the official regulatory process cited my analysis, and in January 2021—just before the change in administrations—DOL issued a final rule that admitted these mistakes, and to address them, the final rule increases the prevailing wage by much less than the interim final rule (though still very significantly). DOL’s final rule, however, still failed to rectify another error that I noted in the October interim final rule. In its justification for raising the prevailing wage, DOL made the following finding:

the Department’s data show that many of the largest users of the H–1B program pay in many cases wages well over 20 percent in excess of the prevailing wage rate set by the Department for the workers in question.… Employers must pay the higher of the actual wage they pay to similarly employed workers or the prevailing wage rate set by the Department. Both possible wage rates generally should approximate the going wage for workers with similar qualifications and performing the same types of job duties in a given labor market as H–1B workers. It is therefore a reasonable assumption that … the wage rates they produce would, at least in many cases, be similar.

Where the Department’s otherwise applicable wage rate is significantly below the rates actually being paid by employers in a given labor market, it gives rise to an inference that the Department’s current wage rates … are not reflective of the types of wages that workers similarly employed to H–1B workers can and likely do command in a given labor market.… Put another way, when many of the heaviest users of the H–1B program pay wages well above the prevailing wage, it suggests that the prevailing wages are too low, and thus can be abused by other firms. (85 FR 63872, 63886).

In other words, DOL admits that most major companies are already offering wages higher than the existing prevailing wage and offering similar amounts to the “actual wages” that their other U.S. workers are making, and so its decision to raise the prevailing wage should have only a relatively small effect for those other companies “abusing” the process. It reiterated these points in the final rule, stating that “the actual wage clause and the prevailing wage clause of the INA are designed to achieve similar outcomes.”

Yet DOL’s data show that once the rule is fully implemented, this will definitely not the case: the prevailing wage will affect 100 percent of the top 50 H-1B employers and impact 73 percent of their H-1B job offers. The average prevailing wage increase will be about $20,000 higher than their actual wage offers, which DOL says are based on what other U.S. workers are making.

The impact for the top H-1B employers that DOL insists have nothing to fear from raising the minimum wage are actually greater than the overall averages for other employers. Altogether, the rule would have required H-1B employers to offer wages of about $7.6 billion in a single year more than under the existing prevailing wages. These inflated wages will make it very difficult or impossible for many companies to hire these important foreign workers at all.

DOL has not published exactly what the new prevailing wages will be, so this analysis used the Bureau of Labor Statistics Occupational Employment Statistics survey data—on which the prevailing wages are based—and interpolated them to identify the new prevailing wage for each H-1B offer recorded in the H-1B disclosure data published by DOL. Some data were not available for certain areas of the country.

Ultimately, the data show that DOL has not implemented a rule in accordance with its own findings that most employer’s H-1B job offers should be similar to the new prevailing wage rates. I’ve already shown that DOL also misrepresented the private wage data that it received from employers commenting on the rule that show the same thing. The new prevailing wage rates are inflated. The reason is obvious: DOL doesn’t want employers to be able to legally hire foreign workers.

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DOL Misrepresents Wage Data to Justify H-1B Prevailing Wage Increase

David J. Bier

On its way out the door, the Trump administration’s Department of Labor (DOL) finalized a rule that increased the prevailing wage—the minimum wage—for foreign workers in the H-1B and permanent immigration programs. The final rule updated an interim final rule effective October 2020, which, as I have previously explained, the DOL misrepresented in multiple ways. And while the wage increases are lower in the new rule than the October rule, DOL is still justifying the rule with misrepresentations. It claims in the final rule that data provided by commenters on the interim final rule support its higher wage levels, but the opposite is true.

The law requires DOL to set the prevailing wage with “at least 4 levels of wages commensurate with experience, education, and the level of supervision.” The Level 1 wage is the entry level. The level 4 wage is the “fully competent” or supervisory wage. DOL uses the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey to identify the wage for each occupation??area combination.

The OES survey doesn’t capture information about skills, so DOL has for as long as it has used the OES survey (since 1998) created the entry level wage by averaging the bottom third of wages in the occupation in the area based on the assumption that lower wages reflect lower skilled. It then averaged the rest of the wages (top two thirds) to create the level 4 wage. The other two levels are equally distributed between the level 1 and level 4.

The level 1 wage (average of the bottom third of wages) is about the 17th percentile. DOL’s January final rule will raise the level 1 prevailing wage to the 35th percentile, which is lower than the interim final rule for October that had set it at the 45th percentile. To justify setting the wage at the 35th percentile, the final rule cited several comments that it received in the interim final rule providing private wage data for various occupations. DOL makes this comment on the data:

In general, the Department found that the annual wage data for specific jobs in specific metropolitan areas offered by commenters were clustered around percentiles in the 30s. Some annual wage data offered by commenters fell in lower percentiles, and a few fell higher in the distribution.

DOL listed wages that it received before concluding:

In sum, most of the wage data offered by commenters was for salaries paid by employers to entry??level workers in positions typically filled by H-1B workers. While there are outliers, most of these wage observations fell between the 30th and 40th percentiles of the OES distribution.

In other words, DOL is stating that private wage data from the commenters support its rule, but that is false. Most of the wages from commenters as listed by DOL did not fall between the 30th and 40th percentiles. It is almost like these passages were written before DOL had analyzed the data that commenters provided. But Table 1 provides the entry level 1 data that DOL cited and what percentile DOL identified those wages falling in the OES data. It shows only one high end wage of the 15 ranges provided that was above the 35th percentile. The majority of the DOL??cited data points was at the 20th percentile or below.

In other words, the private wage data provided to DOL and cited by the rule are much closer to the existing prevailing wage structure than the DOL’s rule. DOL also provided a few data points for wage levels 2 and 4 (Table 2). Wage level 2 will increase from about the 34th to 53rd percentile. Yet the only two data points that DOL provides show percentiles closer to the original prevailing wage. The level 4 wage will increase from the 67th to 90th percentile, but again the only comment cited by DOL shows wages close to the original prevailing wage.

This is not DOL’s only argument for its new rule, but it is an important one nonetheless. By misrepresenting—again—wage data to support its misguided approach, DOL undermines its credibility. Courts have enjoined the October interim final rule on procedural grounds since December. Hopefully, if courts reach the substance of the final rule, they will find it wanting as well.

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Trump Banned Many H-2B Workers But No More U.S. Workers Applied—Now He May Extend the Ban

David J. Bier

The H-2B program allows nonagricultural employers to hire foreign workers when they cannot find U.S. workers to perform temporary jobs. Since 2014, employers have repeatedly hit the H-2B cap of 66,000 visas, so Congress has repeatedly authorized the Department of Homeland Security (DHS) to permit workers to enter above the cap. DHS refused to allow any additional workers to enter above the cap after the unemployment rate spiked in March.

In June, President Trump went even further by banning many H-2B workers until the end of this year, which caused visas under the cap to be wasted. Now Trump is considering extending the H-2B ban into 2021. This is a bad idea. The ban was supposed to free up jobs for U.S. workers, but government data show that almost no U.S. workers applied for H-2B jobs, despite the spike in unemployment.

As I pointed out at the time, it made no sense to ban H-2B workers because every H-2B job must be offered to U.S. workers first. The Department of Labor (DOL) oversees U.S. worker recruitment under the H-2B program, and it will not certify an employer to hire H-2B workers unless it determines that there “are not sufficient U.S. workers who are qualified and who will be available” for the job.

Starting 90 days prior to the job start date, DOL requires that employers request that State Workforce Agencies refer U.S. workers (including those on unemployment insurance) to them. DOL advertises the job on an online site. All jobs must pay an inflated wage—known as the prevailing wage. Within two weeks of applying, employers must also contact former employees and ask them to return for the job. The employer can only stop accepting applicants 20 days before the date of need—after roughly two months of recruitment.

After 15 days of posting the job offer at the job site—a requirement that DOL changed to 30 days during the pandemic—employers will submit proof in a recruitment report that they fulfilled all the requirements. Despite the increased recruitment requirements, President Trump’s H-2B ban, general COVID-19 travel restrictions, and massive increase in unemployment, very few U.S. workers applied for H-2B jobs.

Figure 1 shows the percentage of H-2B job requests that DOL certified as unfilled by U.S. workers. Fiscal year 2020 (from October 2019 to September 2020) saw the highest rate of H-2B jobs certified as unfilled by U.S. workers of any year on record. U.S. workers simply did not apply for H-2B jobs in 2020. In fact, the unemployment rate appears to have no effect on the rate of approvals at all, implying that employers only go through the certification process when they are highly confident that U.S. workers really are not available. 

Figure 2 shows the unemployment rate and the certification rate for just the second half of the fiscal year (April to September), which in the case of FY 2020 was when unemployment spiked. Again, it shows that very few U.S. workers applied for H-2B jobs and that there was a slight increase in the certification rate in the second half of FY 2020 compared the second half of FY 2019, despite unemployment more than doubling.

While there are many H-2B occupations, the top three in 2020 were landscapers (46 percent of certified jobs), forestry workers (7 percent), and meat and seafood cutters and trimmers (7 percent). Among the top three industry??occupation combinations, the certification rate was even higher: 96–98 percent. It is important to note that there are other reasons why a job could not be certified other than the job being filled by a U.S. worker.

Table 2 shows H-2B jobs in 2019 as a share of all jobs in May 2019. This isn’t a perfect comparison, but it is the best we have to contextualize the importance of H-2B workers. For forestry and seafood processing, H-2B workers absolutely dominate those categories in a way that leads to the conclusion that U.S. workers only very rarely take those positions. These shares are even higher in some parts of the country (like Maryland seafood). But for landscaping, almost 90 percent of the industry’s landscapers are not H-2B workers, implying that there is a U.S. workforce in at least some places in the United States (though this U.S. workforce includes many illegal workers).

So why are almost all H-2B landscaping jobs going unfilled despite aggressive recruitment? The main answer is that employers do not engage with the expensive H-2B process if they are not certain that the local labor market has already been exhausted. It would not be worth their effort to hire H-2B workers at higher wages and greater costs unless they were sure that it was there only option. In 2020, like past years, it was the only option.

U.S. workers simply will not relocate to work in tough manual labor positions when they are temporary. Very few Americans are looking for temporary employment anyway. But during the pandemic, they had even less reason to seek it out because they were being assured that the market would quickly recover; they were being told to stay home to avoid spreading COVID-19; they were being paid such inflated benefits by the government that incomes actually rose despite fewer people working, so U.S. workers could afford to wait for their ideal job to return.

President Trump should not extend the H-2B visa ban. H-2B workers not only are not taking U.S. workers’ jobs. They are creating jobs for them. By doing the jobs that U.S. workers turn down, H-2B workers increase demand for other jobs elsewhere in the economy that Americans want to fill.

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What Biden Should Do on Legal Immigration

David J. Bier

Today, Cato published a new compilation of 30 short essays by 15 authors including some of the leading immigration law experts in the United States that explains executive actions that could improve and expand the legal immigration system. It is titled: Deregulating Legal Immigration: A Blueprint for Agency Action. Going into this project, we had the following goals:

  1. Each proposal goes beyond reversing Trump policies. Obviously, we support the wholesale and immediate reversal of nearly every Trump immigration policy since nearly all have been harmful, but we felt that the Biden officials will already have marching orders to reverse Trump policies, so there was more of a need for ideas to make the system better than it was before Trump. We hope that Trump policies get swept away quickly so officials can turn their attention to our ideas.
  2. Each proposal helps legal immigrants navigate our bureaucratic, outdated, and restrictive system. We adopted this focus mainly because we feel that the Biden team has already fully thought??out proposals to address immigrants without legal status, and others were better equipped to flesh out those ideas. Thus, this compilation was about filling niche in the market of ideas for reforming the system, not giving every important idea for reform.
  3. Each proposal provides the legal authorities for action. We have many ideas for improving legal immigration (I have laid them out briefly here and here), but it was imperative for us that these executive actions have strong legal foundations under current law. These ideas are all legally actionable based on existing law and precedent, and this volume gives the administration almost everything that they need to implement them.
  4. Each proposal is concise and easily read by nonexperts. This last one was exceptionally important to us. Legal experts have spilled thousands of pages about problems with the legal system, but our goal was to provide a product that could be consumed by administration officials, advocates, and others who may not be experts on these matters but could take an interest in seeing these ideas across the finish line.
  5. Each proposal is authored by a legal expert: It was important to us that this was not simply a Cato??only project. We wanted to introduce ideas from many of the leading immigration authorities in this country (as well as a few of my own). These included multiple past presidents of the American Immigration Lawyers Association, a former administration official, authors of the leading immigration law reference texts in the United States, and other well??known immigration experts.

I hope that we accomplished these goals. I believe this is the most comprehensive and concrete, but also most consumable and concise compendium of legal immigration ideas for President Biden. The Biden administration should act quickly to undo as much of the damage of the last four years as possible. But he should go further and deregulate the legal immigration system to the greatest extent that the laws allow. Table 1 lists the ideas we included and their authors. The entire paper is available here.

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Visualizing a 4??Year Assault on Legal Immigration: Trends Biden Must Reverse

David J. Bier

With President??elect Joe Biden set to assume the presidency on January 20, he has set the ambitious goal of reversing his predecessor’s immigration policies. The scope of President Donald Trump’s influence can be measured in terms of policies—the Migration Policy Institute has identified more than 400 changes since 2017—but it can also be measured in terms of people—immigrants not coming to America, not receiving permanent residence, or being denied employment authorization and status.

This post explores the trends in immigration approvals and denials that the new administration must reverse to fulfill its campaign promises.

738,000 Fewer Immigrants From Abroad

Immigrant visas are issued to prospective legal permanent residents by the Department of State (DOS), usually following a petition by a U.S. sponsor approved by U.S. Citizenship and Immigration Services (USCIS). Before President Trump, 86 percent of immigrant visas were issued to the immediate family members of U.S. citizens and legal permanent residents—spouses, children, parents, and siblings (and their spouses and minor children). Fiancés and their children also receive a K nonimmigrant visa that provides a path to permanent residence, so they are also included in Figure 1.

Figure 1 shows immigrant visas issued by month under the Trump presidency compared to the average for the last fiscal year of the Obama administration (2016). Immigrant visa issuances were down 83 percent in October 2020 compared to FY 2016. Even before the pandemic, permanent immigration from abroad had declined by about 24 percent. Overall, there were 738,857 fewer immigrant visas issued as of October 2020 than there would have been if the rate of issuance under President Obama had continued under President Trump.

The main cause of the drop in FY 2020 was DOS’s closure of consulates and refusal to waive in??person visa interviews. But another reason is that USCIS started denying petitions for immigrant visas at a much higher rate. Figure 2 shows the USCIS denial rate for immigrant petitions (which can also be the basis of an adjustment of status application). The denial rate was higher in every quarter under the Trump administration than the annual average in FY 2016. The denial rate basically doubled from about 8 percent in FY 2016 to 16 percent in the third quarter of FY 2020. This translates into 72,856 more denials for families, employers, and others seeking to start the immigrant visa process.

Even if USCIS approves their family member’s petition, immigrant visa applicants must still receive approvals from DOS’s consular affairs. Unfortunately, DOS has not provided any data for denials in FY 2020, but even by FY 2019, the denial rate had again almost doubled from 13 percent to 21 percent. Assuming the denial rate in 2020 remains at least what it was in 2019 (and it will likely continue to climb), the Trump administration will have produced about 101,120 additional immigrant visa denials than would have occurred if the denial rate remained the same. These denials undoubtedly intimidated other applicants into choosing not to apply at all.

291,000 Fewer Refugees

The U.S. Refugee Admissions Program resettles refugees to the United States if they possess a well??founded fear of persecution based on a protected ground. Unlike immigrant visas, the most dramatic drop in refugee admissions occurred almost immediately upon President Trump taking office. As of September 2020, the number of refugee admissions had fallen by 67.5 percent compared to the average for 2016. We can be sure this low admissions rate will continue through January, indicating the United States will have admitted about 291,393 fewer refugees than would have come had the admissions stayed at 2016 levels.

246,000 Fewer Adjustments of Status to Permanent Residence

An adjustment of status application requests that USCIS adjust the applicant’s status legal permanent residence. It is an application filed by immigrants inside the United States in lieu of traveling abroad and obtaining an immigrant visa at a consulate. In normal years, about half of new permanent residents adjust their status in the United States. Unlike immigrant visas, only half of adjustments are family??based, while the rest are employment??based as well as refugees, asylees, and applicants in other humanitarian categories.

Figure 5 shows the number of approved adjustment of status applications by quarter. As of the third quarter of FY 2020 (March to June), the number of approvals had fallen by 56.2 percent compared to the average in FY 2016. Unlike immigrant visas and refugees, the drop started late in Trump’s term in the 4th quarter of FY 2019 and the major decline occurred in the third quarter of FY 2020. If the rate of approvals remains the same until January, about 246,313 fewer applicants will have received permanent residence under the Trump administration than would have received it had approvals remained at FY 2016 levels.

Like immigrant visas, the main cause of the decline in adjustments is that USCIS closed field offices and generally refused to waive in??person interviews during the pandemic, bottlenecking the process. However, another major contributor is increased USCIS denials—both of petitions (see Figure 2) and adjustment applications themselves (Figure 6). Despite adjustment approvals remaining as high as before, the denial rate has been higher in every quarter of the Trump administration than the average in FY 2016. The denial rate has increased almost threefold during the last four years. By January, there will likely end up being about 70,256 more denials of adjustments of status during the Trump years as there would have been had the denial rate remained at the 2016 rate.

287,000 Fewer Nonimmigrant Work and Cultural Exchange Visas

The United States permits foreign workers to enter the United States on nonimmigrant (temporary) visas—either work visas or cultural exchange visas—issued by DOS. Exchange visas allow the visa holder to work as part of the cultural experience, and nearly all choose to do so. The foreign workers’ spouses and minor children may join them in the United States as well. While temporary, nonimmigrants can often renew their statuses in the United States. In most cases, temporary workers (e.g., H-1B, H-2A, H-2B, L-1, etc.) may not enter the United States without USCIS approving an employer petition on their behalf.

Figure 7 shows the number of nonimmigrant work and cultural exchange visas issued by month. In general, work visa issuances were higher than they were in FY 2016 (monthly data are not available), but in October 2020, work visa issuances were down 69 percent from October 2019, largely thanks to consulate closures and refusals to waive interviews by DOS. There would have been 287,003 more work and cultural exchange visas issued during the Trump presidency if the FY 2016 visa issuance rate continued.

Work visas grew before the pandemic because labor demand grew, not because USCIS or DOS adopted more favorable processing standards. From FY 2016 to FY 2019, DOS’s visa denial rate grew from 4.4 percent to 6.5 percent, causing 34,389 more denials than would have occurred without the increase. More dramatically, Figure 8 shows that the denial rate for employer petitions for nonimmigrant workers by USCIS more than doubled from 7 percent in FY 2016 to almost 15 percent at the midpoint of FY 2020. This translates into 113,000 additional denials of nonimmigrant workers.

These denials reflect a concerted effort by USCIS to make hiring foreign workers much more difficult. USCIS has also nearly doubled the rate at which issues “requests for evidence” (RFEs) in response to employers’ petitions. RFEs amount to an initial denial in which USCIS demands more evidence to support the petition. The USCIS Ombudsman has found on multiple occasions that USCIS commonly issues RFEs for information already provided or based on erroneous understandings of the law. Many lawyers assume that USCIS uses RFEs to delay having to adjudicate the application. These delays are always costly for employers but are particularly damaging for seasonal H-2 employers because the jobs are of a short, defined period.

96,000 More Denials of Asylum

Asylum provides refugee status to people who meet the refugee definition (well??founded fear of persecution based on protected class). Under the asylum statute, asylum applicants may apply for asylum anywhere in the United States. Asylum applicants are processed either as “affirmative” applications through USCIS or as “defensive” applications made as part of removal proceedings through the Justice Department. Defensive asylum applicants include those who crossed illegally to request asylum as well as those who applied at ports of entry—either at airports or the land border crossing points.

Defensive asylum grants increased under the Trump administration from 8,648 in FY 2016 to 14,507 in FY 2020, and affirmative asylum grants also initially increased from to 9,538 to 19,945 from FY 2016 to FY 2019, but so far in FY 2020, asylum grants have fallen back to almost to where they were in 2016 on pace for about 9,700. Once again, these increases reflect rising requests for asylum and greater processing of applications, not more favorable processing.

Figure 10 shows affirmative and defensive asylum denial rates by quarter. The defensive denial rate has more than doubled the average for FY 2016, and the affirmative denial rate has grown significantly as well. Three??quarters of affirmative asylum applications adjudicated by USCIS in FY 2020 were denied, compared to 57 percent in FY 2016. These increases produced 25,687 more affirmative asylum denials and 70,774 more defensive denials than would otherwise have occurred had the FY 2016 rates prevailed.

These statistics only reflect those whose applications made it to a final adjudication. Most defensive asylum applicants must first clear an initial screening by USCIS to identify if their stated fear of return is “credible.”

Figure 11 shows the credible fear denial rate for 2017 to 2020. Credible fear denials exploded when USCIS implemented its categorical ban on asylum for almost anyone who transited through another country before reaching the United States. A district court enjoined the policy on June 30, 2020 after which time credible fear was established at a higher rate (though a separate policy still allowed Border Patrol to remove those who crossed illegally). Overall, USCIS found credible fear in 28,545 fewer asylum cases than if it had maintained its 2016 average rate throughout Trump’s 4 years. Many more were persuaded to not even bother to apply.

698,000 Fewer International Students

Foreign students can travel to the United States to study and may also work before or after graduation under the Curricular Practical Training and Optional Practical Training programs. Their spouses and minor children also can travel and live with them. The number of international students on F or M visas crashed 75.5 percent from FY 2016 to FY 2020. The largest drop occurred in FY 2020 during the pandemic when the administration hesitated over allowing students to enter for online??only classes, and DOS closed consulates and refused to waive interviews. The United States saw 697,625 fewer student visa holders as a result of the declining visa issuances.

Nine Million Fewer Tourist and Business Traveler Visas

Foreigners can also come to the United States as tourists or business travelers on a B visa. Even before COVID-19, every month but one saw fewer tourist or business traveler visas issued than the monthly average in FY 2016. The average in the 12 months before the national emergency in March 2020 saw 21 percent fewer tourist and business traveler visas issued than in FY 2016 (Figure 13). As of October 2020, business and tourist visa issuances were down 92 percent compared with FY 2016. Overall, nearly 9.1 million fewer tourist and business traveler visas were issued during Trump’s four years than would have occurred if the FY 2016 rate had continued. The drop in tourism and travel in 2020 was caused both by traveler avoidance, other countries’ exit policies, President Trump’s entry bans, DOS’s consulate closures, and DOS’s refusal to issue interview waivers.

8 Million Pending Applicants

Beyond denials and fewer approvals stands an almost unfathomable backlog of 5.7 million applicants for immigration benefits at USCIS—everything from travel and work authorizations to adjustment to permanent residence to citizenship. Until 2017, the backlog of pending applicants was a little less than 2 times the quarterly number of new applications—with changes in the receipts reflected in changes in the backlog (Figure 14). But in 2017, the backlog spiraled out of control despite declining applications. As of the third quarter of 2020, the backlog is now 3.5 times the number of new applications. The Justice Department’s immigration courts also have another 1.3 million pending cases, more than double the court backlog in FY 2016.

The USCIS and DOJ backlogs effectively deny immigrants and Americans their legal rights by delaying their ability to receive status, work, or travel authorization or preventing them from sponsoring their employees or family. According to USCIS, the average time that all pending USCIS applications have waited has grown from 4.7 to 7.3 months from FY 2016 to FY 2020—with the share waiting more than 7 months shooting up from 4.7 percent in FY 2016 to 50.2 percent in FY 2020. For example, adjustment of status (green card) applications increased from 6.8 to 11.4 months. This is just the average time that applications—including those recently filed have spent waiting—but the average time to actually finish adjudicating an application is much longer.

Conclusion

By taking FY 2016 as its baseline, this analysis fails to capture the lost opportunity that increased legal immigration would have brought over the last four years. Nonetheless, the numbers are clear that President Trump’s immigration policies have irreparably harmed millions of immigrants and Americans. But a new administration will need to go beyond simply reversing his policies to avoid having their effects felt for years to come. New policies would need to allow immigrants to reopen cases wrongfully denied and issue visas and status to them. They should streamline processing these applications to avoid further delaying others. If President Biden’s goal is to rectify the harm of the last four years, he must act boldly and aggressively to fix the numerous problems of his predecessor.

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Comments on the Senate Passed Fairness for High Skilled Immigrants Act

David J. Bier

The Senate passed an amended version of the Fairness for High Skilled Immigrants Act (S. 386/H.R. 1044). The bill has already passed the House of Representatives on a massive 365-65 vote. Since then, Sen. Mike Lee (R-UT) repeatedly attempted to pass the bill on “unanimous consent” under which any member can object—which led to deals with Senators Chuck Grassley (R-IA), Rand Paul (R-KY), David Purdue (R-GA), and Dick Durbin (D-IL) that amended the House bill. Sen. Rick Scott (R-FL) who was the latest member to object lifted his hold last night, allowing final passage.

The Senate version is now substantially different from the House version with deleterious provisions to which the House Judiciary Committee has already voiced opposition, but it has also committed to finding common ground to resolve. 

What’s in the Fairness for High Skilled Immigrants Act, December 2020 version?

Green card reforms:

  1. Phases out employment-based per county limits on green cards: The main purpose of the legislation is to treat all employment-based immigrant visa applicants on a first-come, first-served basis without regard to birthplace. Under current law, immigrants from no single birthplace can receive more than 7% of the total number of immigrant visas or green cards issued in a year unless they would otherwise go unused. The effect of this provision is that while Indians are half the skilled employer-sponsored applicants, they receive just 10 percent of those green cards and—as a result—are nearly 90 percent of the backlogged applicants.

    • Comments: The House bill is the same. Basically, this provision is the only reason the bill has made it as far as it has. The discrimination against Indian skilled immigrants mean, as I’ve estimated before, that new Indian green card applicants will almost certainly never receive green cards in their lifetime. More than 200,000 of the 700,000 Indians in line will likely die before they receive their green cards. The fact that other immigrants almost immediately receive their green cards makes the system massively unfair and is already causing skilled workers to leave the country. Indians and Chinese—the only two significantly backlogged applicants—also receive wage offers significantly higher than those for the average applicant from other countries.
  2. Provides for an 11-year phase out period: The bill’s green card changes will only take effect on October 1, 2022. For the EB-2 and EB-3 categories for non-executive level employees of U.S. businesses, the bill guarantees immigrants which are not from the top two origin countries (India and China) a certain percentage of the green cards for 9 years: year 1 (30%), year 2 (25%), year 3 (20%), year 4 (15%), years 5 and 6 (10%), and years 7 through 9 (5%). No more than 25 percent of these “reserved” green cards can go to immigrants from any single country. No more than 85 percent of the other “unreserved” green cards can go to a single country (India). In addition, a minimum of 5.75% of all EB-2 or EB-3 green cards will go to immigrants from these non-top 2 countries for 9 years prioritizing spouses and minor children of immigrants already in the United States and immigrants awaiting visas abroad. It’s unclear if the 5.75% counts toward the prior reservation or must be in addition to it. This ambiguity means it is not possible to say with certainty how long it will take for the current backlog to be processed under the bill.
    • Comments: The House bill would have taken effect immediately and only contained a 3-year phaseout with set asides for non-Indian or Chinese applicants of 15% in the first year and 10% in the next two years. Eleven years is an incredibly long time to continue a system based on birthplace discrimination. It will probably take about 13 years to process all existing Indian applicants under this system, while new applicants continue to take priority. If only applicants who are not currently in the United States received priority, that would be a rational basis for discrimination since those already in the United States are already benefiting more from the U.S. immigration system than those abroad. But these provisions continue the discrimination that the bill is designed to eliminate for a decade (albeit to a lesser degree).
  3. Guarantee for nurses and physical therapists: The bill carves out 4,400 EB-3 green cards (11% of the category) for nurses and physical therapists—defined as “shortage occupations”—for 7 years. The spouses and minor children would not count against this limit but would still receive green cards at the same time.
    • Comments: The House bill has no similar provision. This essentially creates a temporary new category for legal immigrants who DOL deems to be in short supply. I have no problem with this. It is as arbitrary as the rest of the employment-based categorization scheme and does not involve birthplace discrimination.
  4. Caps H-1B visa holders and H-4 visa holders (or those who held H-4 status in the last 2 years) to no more than 70% of all employment-based green cards during the first 9 years after implementation and 50% for all subsequent years.
    • Comments: This is a way of continuing discrimination against Indians indirectly because Indians are 70 percent of H-1B visa holders. Moreover, nearly all of the backlogged immigrants in the green card queue from India are working on the H-1B visa. This provision undermines the purpose of the bill and makes little sense as an anti-H-1B measure because it forces H-1B holders to remain on the temporary status longer than they would otherwise. We don’t know the exact breakdown of the status of those in the green card backlog from India, but it’s likely at least 90 percent H-1B visa holders, so this will delay the receipt of green cards to backlogged Indians. If not for the backlog, the effect would not be very great. About 70 percent of EB-2 and EB-3 green card applicants in 2019 were on the H-1B visa based on Department of Labor’s labor certification data. It is likely less than this in the EB-1 category (multinational executives, those with extraordinary ability, etc.) who have other temporary visa options available or come from abroad, and there probably are very few in the EB-4 special immigrant and EB-5 investor categories, so assuming only 50 percent of EB-1 is on H-1B visas, the number of new H-1B green card applicants is probably only slightly higher than 50 percent. That said, it would hamstring any increase in that program.
  5. Raises the family-sponsored per country limit on green cards to 15 percent: Family-sponsored preference categories also currently have a 7% limit on green cards for immigrants from individual birthplaces. The bill more than doubles that limit to 15% increasing in absolute terms from about 15,820 to 33,900. This will primarily benefit long-backlogged immigrants from Mexico and the Philippines, but also India and China.
    • Comments: The House bill is the same. This provision does not go as far as the employment-based provision in ending discrimination based on birthplace in the family-sponsored system, but it is a significant benefit to long-backlogged, family-sponsored immigrants who are mostly waiting for immigrant visas abroad.
  6. Bars adjustment of status to all Chinese “affiliated” with the Chinese Communist Party: The new language (presumably proposed by Sen. Scott) requires DHS to “not adjust status of any alien affiliated with the military forces of the People’s Republic of China or the Chinese Communist Party” (CCP). This is similar to the existing ground of inadmissibility in 8 U.S.C. 1182(a)(3)(D) for members or those “affiliated with” any communist party anywhere. However, the existing ground of inadmissibility has exceptions for involuntary membership, past membership, or close family members. However, the current ground applies to both adjustment of status in the United States as well as consular processing abroad. Effectively, this provision requires all Chinese immigrants to apply for immigrant visas at consulates abroad.
    • Comments: This is just more de facto national origin discrimination. Most Chinese have no ideological connection to the CCP even if they join it. The main reason to have joined the party is that it facilitates promotions, especially within government or state-owned enterprises but overall. Lotus Yuen of The Atlantic has called membership the “ultimate resumé booster” in China. It can also allow Chinese to avoid direct state persecution. While the government obviously has an interest in stopping actual espionage, this ban is overbroad. The United States should want communists to experience the superiority of the U.S. system and encourage defectors from communist China. The United States has benefited greatly from Chinese immigrant innovators in science, technology, and medicine, and this ban would push inventors back toward the communist regime. That said, because it only applies to adjustment in the United States, the practical effect amounts to an expensive inconvenience rather than an outright ban.

Adjustment of status from temporary visa to green card

  1. “Early filing” (H-1B lite status): Allows backlogged temporary workers to receive a separate, limited, 3-year, renewable employment authorization (apart from their underlying status) 2 years after their employer petition was approved by filing an adjustment of status to legal permanent residence application (i.e. green card application) prior to a green card number being available under the caps. You can credit Sen. Durbin with this provision. Currently, anyone whose adjustment of status application is pending for at least 180 days can receive an employment authorization document (EAD). This EAD allows them to work for any employer that they want while remaining in line based on the original employers’ petition. The original employer’s petition remains valid so long as they work in “the same or a similar occupational classification.” However, you currently cannot apply for legal permanent residence prior to a green card or immigrant visa number being available. The bill states that these new “early filers” could also receive this same authorization. However, the bill adds new requirements for this authorization. The job would have to have wages “commensurate with” those for the employer’s similarly situated U.S. workers in the area.

    If the employer had fewer than 2 such employees, it would have to attest that they were similar to the wages for similar U.S. workers in the area. The worker would have to file a Confirmation of Bona Fide Job Offer or Portability with a request for employment authorization. The employment authorization would last for three year increments with renewals, which is better than the adjustment of status EAD available now (which is only a 1 or 2 years). The worker would also have to provide a signed letter from their employer with the required attestations. A Confirmation of Bona Fide Job Offer or Portability would need to be filed (again if necessary) within 12 months of the green card application being adjudicated. If the Confirmation of Bona Fide Job Offer or Portability was deemed not to meet the requirements, the green card application would be denied. The minor children and certain spouses of temporary workers would also not benefit from this provision. The cost would be $2,000 for each Confirmation of Bona Fide Job Offer or Portability, in addition to the cost of the adjustment of status green card application. Half the fees would go to immigration adjudications and half into the general fund of the U.S. Treasury.

    • Comments: The senators have made this provision about as watered down as they can get it, but it is still the most important unequivocally positive change from the language that the senators have added. It would make it easier for H-1B workers to change jobs. Currently, H-1Bs stuck in the backlog have to renew every single year, which is costly and problematic if the government decides to readjudicate the underlying H-1B petition. It would also allow other temporary workers, such as those on Optional Practical Training, to extend their status when they otherwise would not be able to, potentially enabling them to avoid having to obtain an H-1B at all.
  2. Prevents “aging out” of children of temporary workers in the backlog who have filed an adjustment of status application under the early filing provision. Currently, a dependent child of an H-1B worker loses their status on their 21st birthday. They also lose their eligibility for a green card at the same time. The bill would provide them both a status past their 21st birthday.
    • Comments: This is an unambiguously positive provision.

H-1B high skilled temporary worker reforms (none in House bill)

  1. Requires the posting of H-1B jobs for new H-1Bs on government website for 30 days. If the Department of Labor (DOL) cannot get the website up and running within 180 days, the bill allows just a 30-day extension. If the website still cannot work, the H-1B program could not permit additional H-1B applications.

    • Comments: This seems like it is risking a lot for DOL to create a working website in less than a year. Forcing employers to advertise positions that may or may not actually be available makes little sense.
  2. Bans advertising only to H-1Bs.
    • Comments: This provision is not unreasonable.
  3. Bans recruiting primarily H-1Bs.
    • Comments: Unlike the prior ban on advertising, this provision undermines a major purpose of the H-1B visa, which is to allow employers to hire workers for specialty positions. This tells businesses that they cannot simply recruit and hire a specific foreign worker or workers who they believe will fill whatever niche they need. Moreover, the “primarily” implies that companies would have to spend at least 50 percent of their time recruiting U.S. workers, even if they had already decided that a specific noncitizen was the person that they wanted. It treats the H-1B program like the lesser-skilled H-2 programs where the main purpose of the hire is labor, not skills. Moreover, it would greatly harm businesses that already employ the worker under a different visa category (L-1, F-1, J-1, etc.).

      Employers could probably evade this requirement by making the job descriptions so demanding that only an existing employee could fill the position, as they commonly do under the permanent labor certification process. But why do the authors think it helps U.S. workers to create a bunch of sham job advertisements? The Justice Department’s recent Facebook lawsuit highlights the perils of handing such vague language to any administration. This concern is compounded because the bill also allows DOL to troll through companies’ files whenever it wants without any underlying complaint from an employee or U.S. worker. 

  4. Requires providing every W-2 for every H-1B worker employed by the company over whatever period DOL wants.
    • Comments: This provision would impose a significant administrative burden for no upside. The H-1B process is already too time-consuming and expensive.
  5. Bans hiring new H-1Bs if an employer has more than 50% of its workforce on H-1Bs or L-1s (for skilled intracompany transfers from abroad).
    • Comments: As far as I can tell, only two large companies come close to fitting this profile: Cognizant (49.999%) and Tech Mahindra (50.3%), though a few others may be close if H-1B visas were more readily available. The provision sets a dangerous precedent that H-1B-heavy companies should be legally discouraged. But it’s unclear what the purpose of this restriction is, except to target certain companies that specialize in certain tech services to the benefit of others who are more widely diversified. Even if the requirement was only 25 percent, it would only force Cognizant and other specialized companies to sell or merge with a larger company with more employees, not change any business practices or cease hiring H-1B workers.
  6. Requires DOL to charge a fee for H-1B labor condition applications (LCAs) to cover the cost of processing.
    • Comments: The bill also says that the fee could be used for “administration, oversight, investigation, and enforcement.” If the purpose of the fee is to cover the cost of the application, that’s reasonable. If the purpose is to force compliant employers to cover the costs of DOL actions against noncompliant employers, that’s unfair. This authority should be at least clarified.
  7. Bans B-1 temporary business visas for anyone who would “normally” be classifiable as an H-1B:
    • Comments: This provision is unambiguously negative. Foreigners visiting the United States “temporarily for business” can receive a B-1 visa if they . The State Department has stated since the 1960s that in cases where a person who could qualify as an H-1B is only coming for a short period, they are “more appropriately” classified as a B-1 so long as they are paid from sources abroad. In a proposed rule, the comment period of which ends in December 21, the State Department is proposing its own reversal of this policy. Presumably this legislative provision is also intended to stop this practice, though the word “normally” adds some ambiguity. The “B-1 in lieu of H-1B” option is important because there is no other option specifically for skilled professionals on short-term assignments, especially those that come up suddenly and need to be completed quickly. 

      U.S. businesses contracting with foreign companies, foreign multinationals investing in the United States, or foreign companies without a physical presence in the United States use this option, but it’s unclear how widespread it is because the State Department doesn’t separately record B-1s-in-lieu-of-H-1Bs from the total 38,000 B-1s. In 2010, however, the State Department stated that the consulates in India (the largest source of H-1Bs) made “fewer than 1,000” such grants against nearly 60 times as many H-1Bs. Nonetheless, this rule directly restricts legal trade, travel, and employment to no benefit to the United States.

  8. Requires employers that retaliate against people who “reasonably believe” are disclosing evidence of an H-1B violation to pay backpay.
    • Comments: This is an extension of current law prohibiting employers from retaliation by explicitly requiring them to pay backpay.
  9. Requires DOL to review H-1B LCAs for “fraud or misrepresentation” rather than only for “completeness and obvious inaccuracies”.
    • Comments: This undermines the type of expedited review that LCAs receive. As soon as adjudicators must undertake a more substantive review than completeness and obvious inaccuracies (such as, an internal inconsistency), the review will add significantly more time and expense to an already expensive and time-consuming process.
  10. Requires employers pay at least the actual wages paid to similar U.S. workers in the local area.
    • Comments: This provision extends a current provision of the law to state the “actual wages” must be based only on wages of workers in the area of intended employment. There is also a slight tightening in how it defines similar U.S. workers from “similar experience and qualifications” to “substantially the same duties and responsibilities.” In some cases, using only U.S. workers in one area might raise the wage in some cases, while it might lower the wage in other cases. Again, narrowing the workers to those with “substantially similar duties and responsibilities” would have the same ambiguous effect.
  11. Vastly expands DOL audit and investigation authority:
    • Allows DOL to conduct compliance surveys or annual audits of any H-1B employer.
    • Requires audits of anyone with 100 H-1B workers if more than 15% of their employees.
    • Allows investigations based on anonymous sources not in the form of a complaint from workers or other harmed parties.
    • Allows DOL to audit or investigate based on information in an LCA.
    • Eliminates the requirement that the DOL secretary personally certify that reasonable cause exists for an H-1B investigation.
    • Removes the 60-day time limit on investigations.
      • Comments: Currently, H-1B audits are based only on complaints or other verified, nonanonymous sources that come to the DOL from people DOL knows would have knowledge of an H-1B violation. According to DOL, this latter authority had never been used as of this year, so H-1B audits have exclusively been based on complaints. Congress imposed these restrictions because it wanted to limit the authority of DOL to conduct meritless investigations. These provisions would allow DOL to target employers for audits without any reason to believe a violation has occurred. This is yet another burden in an already burdensome and expensive process.
  12. Eliminates the protection from penalties for employers that made a good faith effort to follow the rules or that underpaid employees based on use of a prevailing wage methodology based on industry standards.
    • Comments: These harmful provisions are replaced with a benignly labeled “information sharing” provision on page 19.
  13. Triples the fines for H-1B LCA violations. Fines increase from $1,000 to $3,000 for non-willful violations, from $5,000 to $15,000 for willful violations, from $35,000 to $100,000 for displacement of U.S. workers.
    • Comments: Adjustments for inflation since 1998 would not quite double the fine amounts, so these increases are clearly intended as more than an update to outdated statutory figures.
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100,000 Children in the Employment??Based Green Card Backlog at Risk of Family Separation

David J. Bier

Employment??based immigrants from India and China put up with a lot of bad governmental policies. Despite having wage offers far higher—on average—than immigrants from the rest of the world, these highly skilled immigrants face wait times for green cards (i.e., permanent residence) of a decade for Chinese to 8 decades for Indians, while nationals of other countries hardly wait at all. This is a consequence of the country caps that limit immigrants of any single birthplace to no more than 7 percent of the green card cap unless they would otherwise go unused.

This means that because nearly all of them are already here working on an H-1B visa, skilled workers from India and China are constantly fearing the prospect of being forced to leave the country if they lose their jobs. They are less likely to get promotions and have trouble changing jobs as a result of the stilted immigration rules for temporary workers. They cannot start businesses, and they must pay thousands of dollars to attorneys and the government to obtain repeated renewals of status. Each administration changes the rules for them, causing additional uncertainty.

But the worst indignity brought upon these talented future Americans is how the system treats their children. Every “minor” child of a temporary H-1B worker is entitled to H-4 temporary status. They are also entitled to a green card if their employer sponsors the worker for one. But the moment that the child turns 21, the government cancels their H-4 status and boots them from the green card queue. They must choose either leaving the country or finding another temporary status to jump to, such as a student visa.

These young people must fight to remain in the country that they have grown up in, graduated from high school in, and have built their lives in. Even if they obtain a student visa, they must then try to win an H-1B visa through the lottery system, where staying with their family and their adopted country is up to random chance. Of course, even if they get the H-1B visa, they are thrown to the back of a massive eight??decade long wait for green cards, even though they had already waited in line for a decade or longer with their parents.

High??skilled immigrants will suffer many indignities to stay in the United States—including nationality??based discrimination, closed job opportunities, unnecessary fees, and much else. But many will not tolerate this forced separation. I’ve spoken to hundreds of H-1B families and every single one has spoken of the stress and anxiety of the thought of having to choose between America and their children. EB-5 investors who are waiting for visas abroad face the choice of whether to come to the United States at all without their children.

About one quarter of the employment??based immigrants who receive green cards are children. Based on this fact, Figure 1 estimates the composition of the green card backlog in April 2020, showing that about 253,293 children were waiting for green cards with their parents in 2020. That means a quarter of a million children are fearing the prospect of aging out of green card eligibility and status in the United States.

Of the children in the green card backlog, there are 157,064 from India, another 49,835 from China, and 46,394 from other countries. Figure 2 shows that Indian children represent 62 percent of the child green card backlog, Chinese 20 percent, and others 18 percent. Again, the fact that Chinese and Indians dominate the backlog is the result of the country caps where green cards are not issued proportionally to the number of pending applicants in each country but rather limited arbitrarily at 7 percent per nation of birth.

Figure 3 breaks down the child backlog by country and category as of April 2020. Almost 87 percent of the child backlog from India is in the EB-2 and EB-3 green card categories for employer??sponsored immigrants with master’s and bachelor’s degrees, while nearly 57 percent of the Chinese backlog are in the EB-5 investor category. Because nearly all EB-5 investors come from abroad and are not already working in the United States like those in the EB-2 and EB-3 categories, aging out for them would mean never coming to the United States at all. These investor families would have to decide whether to keep the family together or leave their children and immigrate.

Table 1 shows how many immigrant children will age out in each category by country of origin at current rates of green card issuances (accounting for the 2021 increase from spillover of unused green cards from family??based categories). About 104,000 children will age out of eligibility over the next two decades. This is about 40 percent of the entire green card child backlog. More than four in five of the aging out children will come from India—a higher proportion than even their current share of the backlog (62 percent).

Congress should entirely repeal the employment??based green card limits, both the country caps based on birthplace and the category limits overall. But even if Congress does nothing else, it should stop the monumental injustice of aging out. The vast majority of these children grew up in America. This is their home. They should get to stay—just like the Dreamers in the DACA program should get to stay. This injustice harms America as well. More and more talented immigrants are going to Canada, Australia, and other countries because they treat their immigrants well: a reasonable and timely path to citizenship for them and their families. It’s the least they should expect.

Congress has no reason to continue to exclude legal dreamers from its paths to citizenship in bills like the Dream Act that provide for immigrants brought to the United States as children—essentially requiring a violation of the law to obtain citizenship. It’s senseless and unjust. Congress can and should do better.

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Employment??Based Green Card Backlog Hits 1.2 Million in 2020

David J. Bier

The U.S. Citizenship and Immigration Services (USCIS) released new data showing that the green card backlog for employment??based immigrants in 2020 has surpassed 1.2 million applicants—the highest number ever. From November 2019 to April 2020, the new data show that demand exceeded the number of green cards issued by more than 109,000. The monthly rate of increase in the backlog has tripled from the rate from 2018 to 2019. Despite the infusion of new green cards in 2021, Indian employer??sponsored applicants face an 8??decade wait for green cards, and nearly 200,000 will die before they could even theoretically reach the front of the line..

This backlog is caused entirely by insufficient numbers under the green card limits—not delays in processing applications. When a petition is approved but no green card number is available, the immigrant enters the green card backlog. While more employment??based green cards will become available in fiscal year 2021, the new numbers will prove to be far fewer than the number required to meaningful reduce the backlog. Congress needs to address this problem immediately.

Figure 1 shows the number of backlogged green card petitions for employment??based immigrants and their families during the three points in time that USCIS has made these numbers available. From April 2018 to November 2019, the backlog increased 215,394—or 11,488 per month—while from November 2019 to April 2020, it increased 153,056 or 30,611 per month. About half of the backlog comes from derivative beneficiaries (spouses and minor children) of the primary applicant. 

The increases are almost entirely concentrated in the EB-2 and EB-3 category for employer??sponsored immigrants with master’s or bachelor’s degrees. The backlog for these categories increased 127,609. The category for unskilled employer??sponsored immigrants also notably jumped nearly 20,000 this year, and the EB-4 category for special immigrants increased nearly 28,000. EB-1 and EB-5 investor backlogs declined slightly.

About 68 percent of the employment??based backlog was from India in April 2020. This outcome is the result of country caps that limit nationals of no single birthplace to no more than 7 percent of the green cards in a year unless the green cards would otherwise go unused. Another 14 percent was from China, and 18 percent from the rest of the world. The Chinese backlog actually declined slightly during 2020 through April, but the backlogs for Indians and all other applicants grew significantly.

As a result of President Trump’s ban on immigration from abroad based on unjustifiable economic concerns, about 121,000 family??sponsored green cards went unused in FY 2020, so the EB backlog received an infusion (known as spillover) of that many additional green cards for FY 2021 above its normal allotment. This will certainly help bring the wait times down for skilled immigrants from India who have been the longest delayed, but not nearly enough for recently backlogged immigrants.

Table 1 shows that the EB-2 and EB-3 category backlog from India reached 741,209 in April 2020 and that despite the spillover from the family??based categories, backlogged petitions still face an expected wait of 84 years. Both categories are combined due to the potential for EB-2 Indians to switch to the EB-3 category if wait times become more favorable there.

However, Table 1 predicts that about 186,038 immigrants will die (based on Social Security Administration mortality tables) before they receive green cards even if they could remain in line forever. Of course, many Indians will leave the line long before they die, and Table 1 predicts using historical trends on abandoned petitions and accounting for aging out that only half the Indians in the backlog will receive green cards through the employment??based system.

For comparison, using numbers from November and not expecting the family??sponsored spillover, my paper earlier this year estimated that the backlog for India would take 89 years to clear with an expected 205,665 deaths before that time. Only 44 percent were expected to receive green cards. Thus, the spillover will make a dent in the waits for new Indian applicants, but only a very small one. The main effect will be felt by those who entered the EB-2 line before 2012 or the EB-3 line before 2016.

COVID-19 has probably affected the green card backlog in other ways as well. The number of deaths of H-1B holders in the backlog has probably increased from the Social Security Administration’s normal estimates. There are probably more abandoned applications as well as a result of H-1B workers losing jobs from business closures and downsizing during the economic downturn (though not a huge number as the unemployment rate has not significantly changed in the most common H-1B occupations overall).

But no one can argue that the spillover of additional green cards for 2021 has solved the backlog for green cards for skilled workers. Ultimately, Congress must act. It should repeal the green card limits on individual countries and then increase (or better yet eliminate) the overall caps on green cards for employment??based immigrants. The United States has already fallen far beyond the rest of the developed world for work??based permanent migration, and allowing this backlog to continue will only exacerbate that trend.

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Biden Has No Reason to Back Down on Immigration Now

David J. Bier

After Joe Biden won the Democratic Party nomination, he made no adjustments to his aggressively pro??immigration agenda. Some ideas—a path to citizenship for illegal immigrants—have long been standard Democratic Party positions, but Biden’s ideas went far beyond this. Biden’s platform was probably as pro??immigrant as any winning candidate since Abraham Lincoln. Yet despite repeated attacks by President Trump, Biden stuck to his message—even on border and asylum issues which many see as the most difficult politically. With public opinion on immigration even further on his side than the presidential vote count, he has absolutely no reason to back down now.

Biden Stuck to a Pro??Immigrant Message

The most remarkable moment in this campaign for me as an immigration analyst was when President Trump attacked Biden in the second presidential debate for the Obama??Biden administration allowing what he calls “catch and release” of immigrants at the border. Rather than pivoting back to normal Democratic attacks about Trump’s child separation policy, Biden took Trump’s bait and launched into an extended defense of exactly what Trump was attacking him for—even going so far as to counter??attack Trump for forcing Central American asylum seekers to live homeless in dangerous cities in Mexico.

Without Trump’s anti??asylum seekers, it is inevitable that the United States will have a very significant increase in immigrants requesting asylum. Of all the Trump policies, I believed—as many analysts still do—that these asylum restrictions would be the most difficult politically for Biden to end. Yet Biden took his few minutes on a national debate stage to assert that he’s willing to embrace greater acceptance of asylum seekers as a good thing. If the new administration accepts them all at ports of entry, grants them status and employment authorization, there will not even be the issue of immigrants breaking the law to create any potential political liability.

Little Reason to Change

Now that he appears to have beaten President Trump, will Biden suddenly reverse? It’s possible. It wouldn’t be the first time that Biden has flipped on immigration. But he absolutely no political reason to change. He won on a pro??immigrant message. House Democrats won on a pro??immigrant message.

Moreover, Biden is assuming office at a time when the public has never been more sympathetic to the pro??immigrant cause. For the first time in its 55??year history, Gallup’s immigration poll found more support for increasing than decreasing immigration (Figure 1). Support for immigration grows when Gallup only asks about legal immigration. More than three quarters tell Gallup that they believe immigration is a good thing. Pew Research Center polls find that large majorities reject that the arguments immigrants increase crime, that they tax the welfare state, and that they do not assimilate. Trump has actually lost ground even among Republicans on his anti??immigration message, as I explained here.

Even the old President Obama advisors who oversaw the most deportations ever and will likely resurface in a Biden administration understand that they have a mandate from Biden to gut and replace Trump’s anti??immigrant agenda in a way that they did not until very late in Obama’s term. I fully expect that the agencies will go beyond reversing them and create even better processes for immigrants—legal or otherwise. He will also push aggressively for Congress to enact legislation to create a path to citizenship for unauthorized immigrants and expand legal immigration.

Potential Problem Areas

The most likely problem areas for Biden are on guest worker visas. Biden said he wanted to make the H-2A and H-2B guest worker programs for lesser skilled seasonal jobs less “cumbersome, bureaucratic, and inflexible.” Moreover, Biden “will support expanding the number of high??skilled visas.” But in both cases, he also falls into the erroneous labor union narrative that these visas can hurt U.S. workers and calls for strong enforcement of the “prevailing wage”—a made??up governmental minimum wage for foreign workers.

In the case of the H-1B skilled worker visa, Biden specifically calls for greater restrictions on “entry level wages”—which could effectively stop the hiring of foreign college graduates by U.S. companies. Since nearly all employer??sponsored foreign workers enter first on temporary visas, restricting them would do very significant harm to both employers, foreign workers, and U.S. workers in complementary positions.

Conclusion

Overall, Biden has given immigrant advocates a reason for optimism. He faced down President Trump’s attacks and doubled down on his pro??immigrant positions. He may impose new restrictions on guest workers and not follow through on every campaign promise, but he will restart a legal immigration system that has almost entirely been stopped by this administration, and he will generally make positive reforms beyond that.

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America Ranked Low Among OECD Countries for Employment??Based Immigration Rate Before Trump

David J. Bier

The United States allowed very few immigrants for work compared to other countries that are members of the Organisation for Economic Co??operation and Development (OECD) even before Trump took office. Of the 24 countries for which data are available from the OECD, the United States ranked 21st for employment??based permanent immigration in 2016.

Figure 1 shows the inflow of new employment??based permanent immigrants as a share of the country’s population for the 24 OECD members with available data as of 2016. The U.S. rate was 0.02 percent of its population in 2016. The United States not only ranks low—the difference is dramatic. Its admission rate is about 90 percent below the world leaders: New Zealand, Australia, Luxembourg, and Canada. Its work??based immigration system is even lower than notoriously closed off Japan.

The United States closed off system for employment??based immigration has resulted in a backlog of more than 1 million workers, investors, and their families waiting for the ability to become permanent residents. Unique among the OECD members, the U.S. system limits immigrants from any single birthplace from receiving more than 7 percent of the total green cards issued (unless they would otherwise go unused), which has caused nearly the entire backlog for workers to develop among Indians and some Chinese.

If Joe Biden becomes the next president, Congress may have the opportunity to revisit this extremely outdated system that it last updated in 1990. The United States benefits greatly from skilled immigration, and a system this broken pushes companies to grow in places where they can hire the talent they need. The data show that this state of affairs existed even before President Trump added far more restrictions in the last four years, so a return to the pre??Trump era will not fix this problem.

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DOL Said It’s H-1B Wage Rule Should Cost Many Employers $0 But It Imposed Billions in Costs Anyway

David J. Bier

The Department of Labor (DOL) released a rule last week that raised the “prevailing wage”—the minimum wage that employers must pay to H-1B and other foreign workers. In justifying the rule, DOL claimed that most employers were paying more than the current prevailing wage, so raising it shouldn’t affect them. Indeed, DOL said that the prevailing wage should approximate the wages that many H-1B employers were already paying to their workers. But it then went ahead and imposed prevailing wage rates that are far higher than the wages that H-1B workers are now receiving.

DOL summarizes its logic for raising the prevailing wage as follows:

the Department’s data show that many of the largest users of the H–1B program pay in many cases wages well over 20 percent in excess of the prevailing wage rate set by the Department for the workers in question.… Employers must pay the higher of the actual wage they pay to similarly employed workers or the prevailing wage rate set by the Department. Both possible wage rates generally should approximate the going wage for workers with similar qualifications and performing the same types of job duties in a given labor market as H–1B workers. It is therefore a reasonable assumption that … the wage rates they produce would, at least in many cases, be similar.

Where the Department’s otherwise applicable wage rate is significantly below the rates actually being paid by employers in a given labor market, it gives rise to an inference that the Department’s current wage rates … are not reflective of the types of wages that workers similarly employed to H–1B workers can and likely do command in a given labor market.… Put another way, when many of the heaviest users of the H–1B program pay wages well above the prevailing wage, it suggests that the prevailing wages are too low, and thus can be abused by other firms. (85 FR 63872, 63886).

To hear DOL tell it, then, most H-1B companies are already complying with both the letter and intent of the law and should have no problem with this new rule because the higher wages will only affect a few low??paying employers. It concludes that the prevailing wage rate “should approximate” the actual wage being paid for the “largest users of the H-1B program” and that the actual wage and prevailing wage should “at least in many cases, be similar.” But the prevailing wage rates that the rule actually adopted completely contradict these agency findings.

DOL produced wage rates that are almost entirely dissimilar from the actual wages offered to H-1B workers overall as well as among the top users in 2020. Table 1 shows the new hourly prevailing wage rates compared to the actual hourly wage offers in 2020. Overall, 94 percent of H-1B job offers were below the prevailing wage rates under the IFR. The new IFR prevailing wage rate is 20 percent more or higher than the actual wage offers for 88 percent of H-1B jobs in 2020. Overall, the average H-1B employer will have to increase actual wage offers by more than 30 percent. Among the top H-1B employers that DOL specifically indicates its findings should apply to, the new prevailing wages average 31 percent above, and again, the new prevailing wages are 20 percent above for 89 percent of H-1B jobs among the top users.

Notice that DOL claimed that a 20 percent difference was “significant” and proved the the prevailing wage rates were wrong, but now it has moved the wages more than 20 percent higher than actual wages, despite its clear statements. Far from costing employers nothing, the 30 percent wage hike will cost employers tens of billions of dollars in additional wages.

This is the second way in which DOL has fundamentally misrepresented its rule to the public. I previously noted that DOL made a massive error in its assumptions about where wages would fall under its new methodology. It’s possible that the one bad assumption explains why the prevailing wages are so far from the actual wage offers. Either way, DOL’s rule directly contradicts the agency’s own findings. Hopefully, a court will find that any agency action that contradicts its own findings is arbitrary and capricious and stop the rule.

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No Year Has Seen Legal Immigration Cut Like the 2nd Half of FY 2020

David J. Bier

The United States has welcomed more than 85 million legal immigrants to the United States since its founding. But at no time since it has maintained records has the country witnessed as fast a decline in legal immigration as it has seen in the second half of fiscal year 2020 (which finished September 30). Overall, the second half of FY 2020 saw 92 percent fewer immigrants from abroad than the first half, which was larger than any annual decline in the history of the United States. 

Figure 1 shows the monthly immigrant visa issuances under the Trump administration since March 2017. As it shows, legal immigration almost wholly stopped in April and May 2020—after the State Department closed its consulates and President Trump issued a proclamation suspending new visa issuances to most immigrant categories. It has recovered slightly since then, but it remains 84 percent below last year (which was also a down year).

Figure 2 shows the number of new arrivals of legal permanent residents or immigrant visas approved by year from 1820 to 2020, with the third and fourth quarter of FY 2020 added. The United States witnessed a more than 90 percent falloff in new immigration from abroad during the second half of FY 2020. This brings the annualized legal immigration rate from abroad to 0.03 percent of the U.S. population. This is the lowest rate of immigration except for three years during World War II and one year during the Great Depression.

The 92 percent drop in the second half of FY 2020 is larger than the drop during any single year in American history—larger than the 73 percent decline in 1915 coinciding with the start of World War I, larger than the 70 percent decline in 1925 coinciding with Congress closing legal immigration from Europe, larger than the 63 percent declines in 1931, 1942, and 1918 following the onset of the Great Depression and U.S. entries into each world war. Table 1 shows the data for all available years and the change for the second half of 2020 from the first half. While it’s only half a year, Figure 1 indicates how slow the immigration recovery has been. It is unlikely that the 2021 will be much different if President Trump is reelected. 

Before 1924, immigrants were never required to receive immigrant visas abroad to enter and become legal permanent residents, and from 1924 to 1952, nearly all immigrants had to receive immigrant visas abroad to become legal permanent residents. In recent years, about half of all new legal permanent residents have adjusted their status to permanent residence from temporary statuses, such the H-1B visa, refugee status, or illegal status. Generally, the number of new “immigrants” include both the number of new arrivals from abroad and those adjusting in the United States, but it’s also important to see who is entering from abroad because that reflects real changes in the U.S. population. The number of work visas, of course, have also declined just as dramatically.

This historic slowdown is important for both the short??term and long??term economic growth of the United States. Fewer workers mean that jobs will take longer to fill and slow the economic recovery, and in coming years, fewer workers will support more retirees. If the United States remains closed long enough, it could push worldwide patterns of immigration away toward other countries with more welcoming policies.

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DOL’s H-1B Wage Rule Massively Understates Wage Increases by up to 26 Percent

David J. Bier

The Department of Labor’s (DOL) new rule changes how it calculates the mandatory minimum wage—called the prevailing wage—for employers of H-1B and permanent foreign workers. DOL adopts a fundamentally flawed methodology as its basis to inflate the prevailing wage. But a bigger issue is that DOL itself failed to understand how much its methodological changes would artificially raise the required wages. DOL estimated the wage effects of its rule using completely erroneous assumptions, and so it understates to the public the wage increases by, in many cases, as much as 26 percent.

The prevailing wage is supposed to approximate the wages of similarly skilled U.S. workers. DOL currently uses the Bureau of Labor Statistics’ (BLS) Occupational Employment Statistics (OES) survey to create a prevailing wage for four skill levels within each occupation in every area of the country. The creation of the skill levels—which is the focus of this rule—is contentious because the OES doesn’t directly record skills. Instead, BLS creates these skill levels mathematically based on the reasonable assumption that higher wages within an occupational category within a specific area generally reflect higher skills.

Table 1 compares the new and old prevailing wage methodologies. Previously, DOL had assumed that the bottom third of the wage distribution represented entry level wages, while the top third was not entry level. After averaging the wages in the bottom third and top two thirds to create the Level 1 and Level 4 wages, it placed the two other wage levels equally distant between them. The new rule, however, ignores all wages below the 45th percentile—making that the starting wage—and rather than averaging all other wages to produce Level 4, it only averages the top decile of wages (the 90th to 100th percentile).

The big error that DOL makes is that it assumes that averaging the top decile will equal the 95th percentile. Since the top decile (the top 10 percent of wage earners) includes some extreme outliers and a very small sample size, those outliers skew the level 4 wage far higher than the 95th percentile. Because the Level 2 and Level 3 wages are dependent on the Level 4 wage calculation, it also mistakes where these wage levels will fall on the wage distribution. This becomes incredibly important when DOL then tries to estimate the wage impact of the new rules:

To estimate the wage impacts of new percentiles contained in this [rule], the Department used publicly available BLS OES data that reports the 10th, 25th, 50th, 75th, and 90th percentile wages by SOC code and metropolitan or non??metropolitan area. In order to estimate wages for the new IFR levels of 45th, 62nd, 78th, and 95th percentiles, the Department linearly interpolated between relevant percentiles for reported wages at each SOC code and geographic area combination. [Endnote: For example, if OES reports a wage of $30 per hour at the 25th percentile and $40 per hour at the 50th percentile then the 45th percentile is interpolated as $30+($40-$30)*((45–25)/(50–25)) = $38 per hour.] For the 95th percentile, the Department used OES wages reported for the 90th percentile at each SOC code and geographic area combination. (p. 126)

In other words, DOL did not even try to estimate what the actual 95th percentile would be. For reasons that are only explicable as laziness or hastiness, it did not ask BLS to calculate the new prevailing wages until after it issued the rule. Instead, it just settled on using the 90th percentile as a stand??in for the level 4 wage to estimate the rule’s effects because it thought that it would be similar. It then tried to calculate the level 3 and level 2 wages assuming that they would be around the 78th and 62nd percentiles, respectively. But this was wrong.

Table 2 is an example of DOL’s assumed wage levels for San Francisco architects and New York City management analysts under the new rule and what the actual wage levels now are. For wage levels 2–4, DOL’s estimate is wildly inaccurate—underestimating the actual amount by 15–18 percent for level 2, 23–25 percent for Level 3, or 24–26 percent for level 4. These huge differences appear in every single occupational category. Notice that in the examples below, the actual level 2 wage is higher than what DOL assumed would approximate the level 3 wage, and the actual level 3 wage is higher than what DOL assumed would approximate the level 4 wage.

DOL repeatedly refers to the top three wage levels as “percentiles,” misstating its own methodology which is based on averaging the top decile and then imputing the middle two wage levels equally distant from the other levels. Because the level 4 wage is so inflated, the other two middle wage levels are also widely off to the point that what DOL refers to as the “78th percentile” (Level 3) is actually above the 90th percentile in the two examples above.

Because DOL decided not to ask BLS for the actual OES data that it would use to create the new wage levels, it missed how egregious this mistake was. Moreover, because DOL refused to let the Office of Management and Budget review the rule, this massive error slipped through unnoticed. Finally, because DOL made the rule take effect almost immediately and refused to accept public comments on the rule, it has no time to correct it before the rule begins to effect tens of thousands of American businesses. DOL should immediately rescind the rule and start the process over.

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CBP at U.S. Ports Denied Foreign Investors, Executives, & Parents of U.S. Citizens

David J. Bier

By mid??May, Customs and Border Protection (CBP) had used the president’s entry travel bans to deny admission to thousands of noncitizens, including parents of U.S. citizens, minor children of U.S. legal permanent residents, foreign investors, professional athletes, and multinational executives after they traveled to U.S. ports of entry. Rejecting investors who must own and expand U.S. businesses to qualify for their status and multinational executives who are overseeing foreign investments harms the U.S. recovery.

In a response to a Freedom of Information Act submitted in March, the Department of Homeland Security (DHS) finally provided a list of those rejected at ports of entry under all COVID-19 related policies by country of citizenship as well as, in a few cases, by attempted entry status as of May 13. The main reason for the delay is that CBP stopped processing FOIAs related to COVID-19, passing them all through DHS headquarters for approval.

The data show that 3,854 citizens of 82 countries were barred entry to the United States by May 13 at a U.S. port of entry, meaning that they had already traveled to the United States. The most common nationality was Canada followed by Mexico largely because citizens of those countries can simply show up at a land port of entry along the northern or southern border. But most denials were of people who arrived at U.S. airports only to be denied.

CBP noted the category of attempted entry status in just 10 percent of the cases it identified. Table 1 shows that list. The most common was for individuals with border crossing visas followed by foreign students. The third most common category was for E-2 investors who come from a country where the U.S. has a treaty of commerce and navigation. E-2 investors are often businesses owners who have invested a substantial amount of capital in their business, creating jobs for Americans.

Other noteworthy denials include (at least) four L-1A multinational executives overseeing foreign investments in the United States from the United Kingdom and Spain. Discouraging investment in U.S. companies during a recession is simply bad economic policy. At least three Canadian parents of U.S. citizens were denied entry, and at least five P-1 professional athletes from Kenya and Mexico. Of course, since CBP only provided the category for 10 percent of all denials, the actual amounts could be 10 times the amounts listed in Table 1.

This only skims the surface of the number of people prevented from coming to the United States under the president’s bans since they mainly affect people applying for visas abroad. But all of these people denied by CBP were already on U.S. soil at an airport or land port of entry when they were denied.

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Officials Misled Congress to Ignore Asylum Law & Set Up Family Separations

David J. Bier

In 2018, the Department of Homeland Security (DHS) instituted a policy of capping the number of asylum seekers that it would process at southwest ports of entry in direct violation of the law, which states that officers “shall refer” aliens arriving in the United States “for an interview by an asylum officer.” In December 2018, DHS Secretary Kirstjen Nielsen defended this “metering” policy and told Rep. Zoe Lofgren in sworn testimony that the agency lacked the “capacity” to follow the law or even to increase at all the processing of people who arrive “without papers.”

In response to Freedom of Information Act (FOIA) requests, we now know this was an indefensible statement. DHS both had more agents than ever at the southwest border and had double the detention capacity than it was using in December 2018. It simply chose to ignore the law. The true purpose behind “metering” was to stop people from making asylum claims legally at the ports—as one DHS official admitted at the time—and force them into Border Patrol’s family separation machine.

This is how it played out: DHS set the caps on asylum at ports so low that families were stranded in squalid and dangerous conditions in Mexico. Facing destitution, homelessness, and crime, asylum seeking families crossed illegally around the ports in order to apply for asylum as the law allows. Border Patrol arrested those families and, from April to June 2018, separated the children from their parents in order to refer the parents for criminal prosecution for crossing illegally.

Nielsen never explained what she meant by the ports lacking processing “capacity,” but FOIA responses from Customs and Border Protection Office of Field Operations (CBP-OFO), the DHS component that handles admissions at ports of entry, show that it had more agents at its field offices along the southwest border than in 2016 when the agency processed more immigrants.

Indeed, CBP-OFO greatly increased processing of undocumented immigrants at ports despite falling staff from 2012 to 2016, while increasing staff from 2016 to 2019 oversaw less processing. As Figure 1 shows, the Obama administration processed 82,106 more undocumented migrants in 2016 than in 2012—more than double the earlier amount—despite 97 fewer CBP-OFO officers. The Trump administration added officers every year—increases of 692, or 11 percent—yet it cut port processing. There were actually more agents than this under Trump because CBP-OFO also made an undisclosed number of temporary transfers to the southwest border as well.

But the annual figures significantly understate the reductions in port processing under Trump. In the month of October 2016, the Obama administration processed 20,524 undocumented migrants at ports. In December 2018, the Trump administration processed just 10,030. As Figure 2 shows, agents were processing fewer undocumented migrants down all along the border in all four field offices. Overall, the average CBP-OFO officer at a port of entry went from processing 3.1 undocumented migrants in October 2016 to just 1.4 per month—again less than half—in December 2018. During family separation, CBP-OFO dropped the caps on port processing even lower. There were also more families and children processed at ports in October 2016 than in any month of 2018.

Despite more agents, DHS also insists incorrectly that it must detain asylum seekers too, and it lacked space to do so. This “space” constraint was also untrue. CBP-OFO revealed in a FOIA release this month that it had the capacity for double the number of daily detentions than it was allowing in December 2018 at the time of Nielsen’s testimony.

Figure 3 shows the average daily number of detained persons by CBP-OFO at southwest ports of entry by month from 2012 until December 2018. In December 2018, it had a daily average detained population of 324 compared to 657 in October 2016. In other words, CBP-OFO had twice as much detention capacity as it was using in December 2018, and yet Nielsen insisted that the ports were at capacity. Again, the detained population actually declined all along the border at ports during family separation as agents turned families away.

This confirms contemporaneous reports that there were no overcrowded detention facilities at ports of entry. The DHS Office of the Inspector General wrote in September 2018 that “CBP reported that overcrowding at the ports of entry caused them to limit the flow of people,” but “the OIG team did not observe severe overcrowding at the ports of entry.” Again, in July 2018, “the processing rooms visible in the ports of entry visited by Human Rights First appeared to be largely empty.”

During family separation, Nielsen said, “there is no reason to break the law and illegally cross between ports of entry. You are not breaking the law by seeking asylum at a port of entry.” She neglected to mention that she was breaking the law by having her agents to turn them away. This practice resulted in the death of a father and his daughter after agents forced them back into Mexico, and they tried to cross the river.

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Mexican Immigration Population Drops to Lowest Level Since 2004

David J. Bier

From 2017 to 2019, the immigrant share of the U.S. population failed to increase at all for the first time since the Great Recession and probably for the first time in decades during an economic expansion. According to recently released data from the Census Bureau’s American Community Survey, a major reason for the stagnation is that America’s Mexican immigrant population has started to decline rapidly, dropping nearly 642,000 from 2016 to 2019.

As seen in Figure 1, Mexican immigrants reached 11.7 million in 2010 before fluctuating between 11.5 and 11.7 from 2011 to 2016, but then, starting in 2017, the numbers rapidly declined to 10.9 million. The last time the population was this small was in 2004. Meanwhile, the Mexican share of the immigrant population declined from a peak of 31 percent in 2005 to 24 percent in 2019.

As Figure 2 shows, the share of immigrants from Mexico rose rapidly from 1970 to 2000 before declining slightly by 2010, and then sharply by 2019 with most of the decline from 2017 to 2019. The 5??percentage point decline from 2010 to 2015 is by far the largest in history for Mexicans. No decade before the 2010s saw a decline of more than 0.2 percentage points. The era of Mexican immigration is wrapping up in a hurry under President Trump.

Mexico is just the fourth country in American history since 1850 to be the most common origin country for U.S. residents. Figure 3 compares the Mexican share of the immigrant population to the other three countries. Ireland led all countries from 1850 to 1870, followed by Germany from 1880 to 1920, followed by Italy from 1930 to 1970. Mexico’s five decades dominance is the longest such period, but its peak was lower than the peak of 42.8 percent for Ireland in 1850. While the Census data on origin countries only date to 1850, the Irish share may have peaked that year after the potato famine.

Mexicans falling numbers are not primarily a consequence of increasing deportations. Indeed, ICE removals to Mexico have slightly fallen under the Trump administration. The better explanation is that fewer Mexicans want to come to the United States, and more are returning. The surprising element is that unlike the stagnation in the immigrant population during the Great Recession, this decline occurred during a period of almost unparalleled economic expansion in the United States, while Mexico’s economy shrank in 2019. Perhaps the president’s anti??Mexican rhetoric is influencing Mexicans’ personal behavior. 

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