A Biden Immigration Policy: New Hope For Immigrants And Businesses

Good overview. Money quote: “The simplest rule Joe Biden and his team may follow on immigration policy would be to ask: What would Stephen Miller and Donald Trump do? And do the opposite.”:

Joe Biden is the next president of the United States. Unless Democrats win two runoff elections in Georgia, Biden may not have a Democratic majority in the Senate, making ambitious immigration legislation more challenging. Despite that, Joe Biden will have an opportunity to enact significant changes to U.S. immigration policy.

Legal Immigration: By 2021, Donald Trump will have reduced legal immigration by up to 49% since becoming president – without any change in U.S. immigration law, according to a National Foundation for American Policy (NFAP) analysis.  Reducing legal immigration most harms refugees, employers and Americans who want to live with their spouses, parents or children, but it also affects the country’s future labor force and economic growth: “Average annual labor force growth, a key component of the nation’s economic growth, will be approximately 59% lower as a result of the administration’s immigration policies, if the policies continue,” according to the NFAP analysis. Reversing these policies could be a vital part of the Biden immigration agenda.

High-Skilled Immigration: If the Biden administration understands only one thing about business immigration, it should be this: H-1B visas are inextricably linked with the ability of highly educated people to become employment-based immigrants and eventually American citizens. Restrictions on H-1B visas can prevent the next potential founder of a billion-dollar company from gaining a green card and certainly will hurt international students. In addition to academic research that shows imposing H-1B restrictions push more jobs outside the United States, the country’s future can be affected in other ways: 75% – 30 out of 40 – of the finalists of the 2016 Intel Science Talent Search had parents who worked in America on H-1B visas.

Legislative reforms could make it easier for individuals to gain permanent residence without an H-1B, but until that happens (if it ever does), an H-1B will remain the only practical way for many people to work long-term in the United States, including international students. Approximately 75% to 80% of fulltime graduate students in key technology fields at U.S. universities are international students.

H-1B visa holders understand that H-1B status is part of the American Dream for many outstanding future immigrants, which is why Stephen Miller, the chief architect of the Trump administration’s immigration policies, focused so much energy on restricting H-1B visas.

The Trump administration did not pursue “merit-based” immigration. “Denial rates for new H-1B petitions for initial employment rose from 6% in FY 2015 to 29% through the second quarter of FY 2020,” according to a National Foundation for American Policy analysis. An April 2020 proclamation blocked the entry of legal immigrants to the United States in nearly all categories, including employment-based immigrants. Before a judge issued a preliminary injunction against it in October, a June 2020 proclamation suspended the entry of foreign nationals on H-1B, L-1 and certain other temporary visas.

In October 2020, the Trump administration issued three new regulations that would profoundly change – and broadly restrict – H-1B visas:

–       The Department of Labor’s (DOL) rule that inflates salaries for H-1B visa holders and employment-based immigrants.

–       The Department of Homeland Security’s (DHS) H-1B rule that changes the definition of a specialty occupation and seeks to codify restrictions against companies whose H-1B employees conduct work at customer locations.

–        A rule to eliminate the H-1B lottery and replace it with a highest-to-lowest salary system likely to shut out international students and younger information technology (IT) professionals.

Legal challenges to the regulations may tell much of the story of the Trump administration’s legacy on H-1B visa policy. Companies will be relieved if a Biden administration returns U.S. Citizenship and Immigration Services (USCIS) policies to those of the Obama administration. There is a reasonable chance that will happen.

USCIS and State Department Processing: “One barrier that will be hardest to break is the enormous backlog with both USCIS and State,” said Jeffrey Gorsky, senior counsel at Berry Appleman & Leiden and a former State Department attorney, in an interview. “While Biden is likely to shift resources from enforcement to adjudication, it may take a year or years to burn through the piles of unfinished work. For the State Department, once normal processing resumes, bearing in mind that some of this suspension is due to legitimate Covid-19-related concerns and not just immigration restrictions, it may increase the visa wait times by 6 months to a year.”

A priority at USCIS should be to rescind memos that have slowed processing, increased Requests for Evidence and made it more difficult to gain approval of previously-approved applications, such as the 2017 memo that no longer provided deference to previous adjudications. Putting the USCIS fiscal house in order will take a combination of a more reasonable fee rule, using the authority Congress provided for premium processing and a legislative funding or loan package.

Executive Orders, Proclamations and Regulations: Analysts believe if the Biden administration is smart, it will make a clean break from the Trump era by undoing all executive orders and proclamations on immigration that are not directly tied to health concerns related to Covid-19. That would include the most high-profile measures, such as the ban on the entry of individuals from primarily Muslim countries. Undoing the April 2020 immigration proclamation would allow immigrants in the family-sponsored and Diversity Visa categories to enter the United States, once State Department processing is normalized. Reversing regulations, most notably the public charge rule, may take more time and be influenced by court rulings.

H-4 EAD and Per-Country Limits: For years, the Trump administration has placed a proposed rule on the regulatory agenda to rescind an existing regulation that allows many spouses of H-1B visa holders to work – called H-4 EAD (employment authorization document). The administration could still attempt to take some restrictive action before Donald Trump leaves office.

A priority for the Biden administration should be to fix processing for H-4 EADs. In a recent lawsuit, plaintiffs argued H-1B spouses cannot renew their H-4 employment authorization documents because USCIS added an unnecessary biometrics requirement and adopted an erroneous interpretation of government regulations by prohibiting automatic extensions of H-4 work authorization.

Biden’s immigration policy document mentions eliminating the per-country limit for employment-based immigrants. Due to per-country limits, an employment-based green card applicant from India can potentially wait decades before gaining permanent residence. Legislation to address the problem passed the House of Representatives, but a series of demands by senators, the latest beings Senator Rick Scott (R-FL), first slowed then blocked the bill. It is unclear whether anything will change this Congress but if major immigration legislation moves next year, fixing the per-country limit is likely to be included. Another standalone bill may be possible as well.

DACA and Dreamers: Over the past four years, it took a great deal of legal activity, including a Supreme Court ruling, to protect the legal status of more than 600,000 recipients of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. Joe Biden said protecting Dreamers will be a priority. How he protects them will matter.

Biden administration attorneys will need to decide if keeping the current program intact is the best approach legally or if a different administrative approach would work better. Continuing protections for DACA recipients is favored by a 2-to-1 margin among voters, according to poll results released by FWD.us. That does not mean a legislative solution will be easy, particularly one that goes beyond DACA recipients, which the Biden campaign has said he will pursue. Even if Democrats control the Senate at some point during the next four years, some compromise on the scope of a legislative solution (i.e., how many unauthorized immigrants, other immigration measures) is expected to be necessary for a bill to become law.

International Students: The Trump immigration team made it a priority to break the link between international students and their ability to work in the United States after graduation. The DOL and DHS H-1B rules, along with along with eliminating the H-1B lottery, would make it much more difficult for international students to work in America after completing their studies, say universities. “For students considering a degree abroad, 62% mentioned that being able to work in the country following the degree is very important,” according to a survey of international students by Studyportals.

The comment period ended last month on a significant proposed rule, opposed by U.S. universities, to limit the period of stay for international students. New enrollment of international students in the U.S. has fallen for years (while rising in other countries), and this rule would drop U.S. levels lower. Generating uncertainty as to whether students can complete their studies in the U.S. is a good way to ensure they won’t come to America in the first place. Research has found the proposed student rule is based on flawed DHS reports on student overstay rates. A Biden administration may need to decide what to do with this rule.

Refugees, Asylum and TPS: The first immigration challenge of the Biden presidency could be how to address asylum seekers at the southern border. Biden has pledged to end the process that has forced tens of thousands of asylum seekers to live in camps in Mexico. Ending the camps with an orderly process and providing a set of new procedures that will affect other asylum seekers may need to be accomplished quickly. The priority will be to ensure human rights and avoid scenes of overwhelmed Border Patrol agents. It would be a disaster if after campaigning against “kids in cages,” a shorthand reference to the Trump administration’s family separation policies, a Biden administration created anything remotely similar.

Biden officials should consider solutions that allow refugees to be interviewed outside the United States, including in their home countries, and develop solutions to enable individuals to work legally in the United States at jobs that do not require a high school degree, similar to, or even including, H-2B visas. Not everyone fleeing danger may qualify for asylum, but offering opportunities to earn a living in safety may be a desirable alternative, and it can take place in an orderly fashion.

The Biden administration is likely to pursue unraveling Trump administration rules and Bureau of Immigration Appeals decisions that restrict asylum. That includes a Centers for Disease Control and Prevention (CDC) order that expels individuals before they are allowed to apply for asylum. Reforms to the system of immigration judges, including legislative reforms to make immigration courts independent, may be on the agenda.

Joe Biden’s immigration policy document states, “He will set the annual global refugee admissions cap to 125,000, and seek to raise it over time commensurate with our responsibility, our values, and the unprecedented global need.” Donald Trump reduced the annual refugee ceiling by over 86%, down to 15,000 in FY 2021, compared to 110,000 in the final year of the Obama administration. Biden has the authority to adjust the annual refugee ceiling after taking office, although rebuilding refugee processing and resettlement will take time.

“Order an immediate review of Temporary Protected Status (TPS) for vulnerable populations who cannot find safety in their countries ripped apart by violence or disaster,” is cited in the Biden policy document. Biden mentioned TPS for Venezuelans during the campaign, but hundreds of thousands of individuals from other countries, primarily from Central America, have lived in the United States for years and seen their TPS status ended by the Trump administration. The document mentions including such individuals in a possible legislative solution.

Startup Visas: Startup visas is a modest, bipartisan legislative idea that could see renewed interest, given the need for job creation. It was part of an immigration bill that passed the U.S. Senate in 2013. The United States does not have a startup visa for foreign-born entrepreneurs. A National Foundation for American Policy reportfound the federal startup program in Canada has helped create jobs, as has a program run by the province of Quebec. The U.K, Australia and New Zealand also have startup visas. The Trump administration attempted to rescind a modest effort to allow foreign entrepreneurs to stay in the U.S. via parole.

A Difference in Tone: During the final days of his presidential campaign, Donald Trump warned people in Minnesota that Joe Biden would turn their state into a refugee camp. Immigration and Customs Enforcement (ICE) plastered the faces of dark-skinned immigrants on billboards in swing states. Building a wall to keep out foreigners remained one of the federal government’s top priorities. That will change in a Biden presidency: The ICE billboards will come down, and construction crews on the border wall will go home.

The difference between the two presidents’ rhetoric on immigrants and refugees should be night and day. “Generations of immigrants have come to this country with little more than the clothes on their backs, the hope in their heart, and a desire to claim their own piece of the American Dream,” reads the Biden immigration plan. “It’s the reason we have constantly been able to renew ourselves, to grow better and stronger as a nation, and to meet new challenges. Immigration is essential to who we are as a nation, our core values, and our aspirations for our future. Under a Biden Administration, we will never turn our backs on who we are or that which makes us uniquely and proudly American. The United States deserves an immigration policy that reflects our highest values as a nation.”

What will be the guiding principles of a Biden-Harris administration on immigration? Stephen Miller spearheaded the Trump administration’s immigration agenda, working tirelessly to move the United States as close as possible to a policy of zero immigration. The simplest rule Joe Biden and his team may follow on immigration policy would be to ask: What would Stephen Miller and Donald Trump do? And do the opposite.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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