Varela: Joe Biden should be trumpeting this immigration policy victory

One take:

Given the intense focus journalists place on migrants who come to the United States, it’s disappointing that they pay such little attention to the employers on this side of the border who recruit and exploit migrants and then, if they dare complain, fire them and make them even more vulnerable to deportation. The systematic oppression of migrants doesn’t get sufficient attention, partly because journalists haven’t done their jobs but also because those who are abused and exploited don’t speak up because they’re afraid or can’t speak up because they’ve been deported.

That’s why an announcement last week from the Biden administration that it will extend some protections to migrants reporting employer abusewas so historic. In a Jan. 13 news release, the Department of Homeland Security said that “noncitizen workers who are victims of, or witnesses to, the violation of labor rights, can now access a streamlined and expedited deferred action request process. Deferred action protects noncitizen workers from threats of immigration-related retaliation from the exploitive employers.” As a result, DHS noted, the whistleblower program confirmed the current administration’s “commitment to empowering workers and improving workplace conditions by enabling all workers, including noncitizens, to assert their legal rights.”

While I and multiple immigrant rights groups have generally criticized President Joe Biden for muddled immigration policies that carry forward former President Donald Trump’s misguided policies, I stand in agreement with those groups that were quick to praise Biden for this move.

“Today opens a pathway full of hope for those of us workers who fear reporting workplace abuses, so that we can come forward to share the challenges we face every day in hostile workplaces, suffering abuses like wage theft,” Jonas Reyes, a worker leader at Arriba Las Vegas Worker Center, said in a statement published on the website for the National Day Laborer Organizing Network, or NDLON. “When we speak up and exercise our rights, we face retaliation. These protections are an important step to be able to speak up safely, and an opportunity to improve our working conditions and our lives.”

The Biden administration should have played up this announcement and drawn attention to a new policy that will further humanize one of this society’s most exploited populations. Instead, the administration conveyed the news in a press release on the Friday before the three-day Martin Luther King Jr. holiday weekend. NDLON held a virtual news conference to discuss the policy change, and while it did an excellent job of humanizing migrant voices and shining a light on their real plights, as of Thursday, that video had barely more than 150 views. By not playing up the news of the new whistleblower policy, the Biden administration missed an opportunity to transform the immigration debate by focusing on a plan that helps migrant workers instead of punishing them.

That missed PR opportunity means that when the topic is Biden and immigration, one of his progressive moves is likely to be ignored. The focus will remain on his administration’s failures to distance itself from Trump and the presidents before him who have treated immigration not as a humanitarian crisis but as a law enforcement and national security problem.

The White House statements that were released this month during Biden’s first official visit to the U.S. border with Mexico focused on “new enforcement measures to increase security at the border” meant to “reduce the number of individuals crossing unlawfully between ports of entry.” At the same time, those statements claimed that such measures “will expand and expedite legal pathways for orderly migration and result in new consequences for those who fail to use those legal pathways.” Part of these measures includes a mobile phone app that migrants can now use to apply for asylum.

New data from Syracuse University’s Transactional Records Access Clearinghouseposted Wednesday said the immigration court backlog of close to 1.6 million cases is “the largest in history.” While the Biden administration’s announcement of a phone app may have been meant to decrease the number of people making the trek here, U.S. Code still makes it very legal for individuals to physically seek asylum at the U.S. border.

Despite the relative lack of attention the Biden administration and the media have given to the new DHS rule, the announcement does demonstrate that any real positive change in immigration policy will always come from grassroots movements. Rosario Ortiz, another worker leader at Arriba Las Vegas Worker Center, said in a statementthat she and coworkers had met with U.S. Labor Secretary Marty Walsh and DHS Secretary Alejandro Mayorkas “to call for these protections.” Ortiz said, “I am proud of my coworkers and our brothers and sisters across the country who have helped open a pathway for others in our circumstances to seek the protections that we have won.”

That successful grassroots campaign is similar to the grassroots campaign that ended with Arizona voters last year granting in-state tuition to undocumented students. Like the whistleblower policy, the policy change was the result of a targeted campaign that took time to mature.

This kind of substantive change in national immigration policy that considers the rights of migrant workers has been long overdue. The groups who have been fighting for their communities know this, and there is no indication that they will slow down their efforts, no matter who’s in office — whether it’s Republicans who brag about being tough on immigrants or Democrats who are seemingly too afraid to draw attention to those fleeting moments when they’re doing right by them.

Source: Joe Biden should be trumpeting this immigration policy victory

Marshall: Biden gets real on immigration

One take:

No issue better illuminates America’s debilitating political stalemate than immigration. Everyone knows there’s a mounting humanitarian and law enforcement crisis on our southern border, but our political leaders find it safer to appease their most militant partisans than to work together to forge pragmatic solutions.

That may be changing. After ignoring an unprecedented surge of migrants for two years, President Biden has announced some modest steps toward restoring order. His reward for taking on this combustible issue is a fusillade of criticism from rightwing nativists who say he’s not serious and leftwing activists worried that he is.

Source: Biden gets real on immigration

ICYMI: Biden outpacing Trump, Obama with diverse judicial nominees

Of note.

In Canada, the Trudeau appointments 2016-22 are (2016 baseline in parentheses): 56 percent women (36 percent), 10 percent visible minorities (2 percent), and 3 percent Indigenous peoples (1 percent):

For the Biden White House, a quartet of four female judges in Colorado encapsulates its mission when it comes to the federal judiciary.

One of the judges, Charlotte Sweeney, is an openly gay woman with a background in workers’ rights. Nina Wang, an immigrant from Taiwan, is the first magistrate judge in the state to be elevated to a federal district seat. Regina Rodriguez, who is Latina and Asian American, served in a U.S. attorney’s office.

Veronica Rossman, who came from the former Soviet Union with her family as refugees, is the first former federal public defender to be a judge on the 10th U.S. Circuit Court of Appeals.

With these four women, who were confirmed during the first two years of President Joe Biden’s term, there is a breadth of personal and professional diversity that the White House and Democratic senators have promoted in their push to transform the judiciary.

“The nominations send a powerful message to the legal community that this kind of public service is open to a lot of people it wasn’t open to before,” Ron Klain, the White House chief of staff, told The Associated Press. “What it says to the public at large is that if you wind up in federal court for whatever reason, you’re much more likely to have a judge who understands where you came from, who you are, and what you’ve been through.”

The White House and Democratic senators are closing out the first two years of Biden’s presidency having installed more federal judges than Biden’s two immediate predecessors. The rapid clip reflects a zeal to offset Donald Trump’s legacy of stacking the judiciary with young conservatives who often lacked in racial diversity.

So far, 97 lifetime federal judges have been confirmed under Biden, a figure that outpaces both Trump (85) and Barack Obama (62) at this point in their presidencies, according to the White House and the office of Senate Majority Leader Chuck Schumer, D-N.Y. Among them: Supreme Court Justice Ketanji Brown Jackson, that court’s first Black woman, 28 circuit court judges and 68 district court judges.

Three out of every four judges tapped by Biden and confirmed by the Senate in the past two years were women. About two-thirds were people of color. The Biden list includes 11 Black women to the powerful circuit courts, more than those installed under all previous presidents combined.

“It’s a story of writing a new chapter for the federal judiciary,” said Paige Herwig, a senior White House counsel.

The White House prioritized judicial nominations from the start and Democratic leaders in the Senate moved quickly on them. Particular focus was placed on nominees for the appellate courts, where the vast majority of federal cases end, and those coming from states with two Democratic senators, who could find easier consensus in a process where there’s still significant deference given to home-state officials.

Democrats hope to speed up confirmations next year, a goal more easily accomplished by a 51-49 Senate that will give them a slim majority on committees. In the past two years, votes on some of Biden’s more contested judicial nominees would deadlock in committee votes.

Schumer said he also hopes to install more judges in appeals courts that shifted rightward under Trump, an effort that the majority leader described as rebalancing those courts.

“Trump loaded up the bench with hard right ‘MAGA’ type judges who are not only out of step with the American people, they were even out of step with the Republican Party,” Schumer said in an interview, using shorthand for Trump’s 2016 campaign slogan, “Make America Great Again.”

Despite their limited power to derail Biden’s judicial picks, some Republicans have fought ferociously against many of them, arguing that their views were out of the legal mainstream. The precarious 50-50 Senate meant several Biden nominees languished for months and were never confirmed before the Senate wrapped up its work this year.

Democrats also say certain judicial nominees, particularly women of color, were unfairly made into lightning rods by their GOP critics.

“The Republicans have just got a problem with this,” Sen. Dick Durbin, D-Ill., chairman of the Judiciary Committee, told the AP. “Not all of them, some do.”

Sen. Josh Hawley, R-Mo., a committee member, said Biden’s picks were “very, very left, but unapologetically so” and that his colleague’s assertions about Republicans were “absurd.”

Despite the strengthened Democratic majority. the White House could nonetheless struggle to seat some judges over the next two years.

For instance, Biden has made barely a dent in the number of vacancies for district court judges in states that have two Republican senators, confirming just one such person: Stephen Locher, now a judge in the Southern District of Iowa. Home-state senators still get virtual veto power over district picks. Advocates want Democrats to discard that tradition, arguing it only allows for Republican obstructionism.

Durbin has said he would reconsider the practice if he sees systematic abuse of it. But such roadblocks have been rare, he said, and influential Republicans give some deference to Biden on judges.

One matter Biden has not been willing to address: the structure of the Supreme Court.

Any push to reshape the high court has found little footing at the White House despite its the court’s tilt farther right under Trump.

In June, the 6-3 conservative majority overturned the landmark decision Roe v. Wade, eliminating the constitutional protections for abortion that had existed for nearly 50 years. In the same term, it also weakened gun control and curbed the U.S. Environmental Protection Agency’s ability to manage climate change.

Biden has argued the court is more of an “advocacy group these days.” But he has not embraced calls to expand the court, impose term limits or mandatory retirement, or subject justices to a code of conduct that binds other federal judges.

“I wouldn’t, in any way minimize the progress and the importance of what President Biden is doing on the lower courts,” said Chris Kang of Demand Justice, an advocacy group leading the push to expand the court. But “we need to look at the core problem, which is the Supreme Court.”

Source: Biden outpacing Trump, Obama with diverse judicial nominees

Biden administration announces asylum system overhaul: What you need to know

Useful overview:

The Biden administration announced the final version of its long-awaited U.S. asylum overhaul Thursday, aiming to speed up processing at the border and alleviate backlogs throughout the country’s immigration courts.

Fixing asylum, a process that can drag out for years, was one of President Biden’s campaign promises. The overhaul represents the most significant change to the nation’s immigration system since he took office.

The new policy is scheduled to take effect May 28, two months after it’s published in the Federal Register. The change won’t affect most asylum seekers as long as a pandemic-related rule limiting access at the border remains in force. But the new system will probably be in place once that rule is lifted and the uptick in asylum requests begins.

“The current system for handling asylum claims at our borders has long needed repair,” Department of Homeland Security Secretary Alejandro N. Mayorkas said in a news release. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

Asylum seekers will now have their claims heard by an asylum officer with U.S. Citizenship and Immigration Services within several months, if the plan works as intended, instead of waiting years for a final determination from an immigration judge.

The Homeland Security and Justice departments released a draft proposal in August. After reading through 5,000 public comments about the draft, officials on a call with reporters Wednesday said they made some changes but maintained the overall framework of the proposal. The officials — from U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review, which oversees immigration courts — spoke to reporters on condition that they not be named.

Under the rule, anyone denied protection by an asylum officer could request a reconsideration from Citizenship and Immigration Services within seven days. If turned down, the person could ask that an immigration judge review their application and later bring their case to the Board of Immigration Appeals and federal circuit courts. After all bids are exhausted, or if none are pursued, the person would be subject to deportation. The rule does not apply to unaccompanied children who arrive without a parent

Supporters say the policy improves what has long been considered a scary process for traumatized migrants. Instead of having to initially recount their worst experiences in an adversarial court setting as they defend themselves against deportation, migrants will now be able to make their case in an asylum office.

But many advocates worry the changes weaken constitutional due process rights for asylum seekers by essentially expanding the so-called expedited removal process, a mechanism used to quickly turn back immigrants apprehended at the border.

Richard Caldarone, who manages litigation at the Tahirih Justice Center, a national nonprofit serving immigrants who fled gender-based violence, said the new process serves no significant humanitarian purpose because it doesn’t give trauma survivors enough time to find a lawyer, gather evidence and recover.

“Survivors of trauma will not be able to recite what happened to them 72 hours after arriving in a safe place to a government official,” he said. “Given the emphasis that DHS has placed on speed for asylum seekers, this will be like the former process — designed in a way that will systematically fail to elicit people’s best asylum claims.”

A better system, Caldarone said, would give people a year before their asylum hearing to prepare and then quickly provide a decision as to whether they could stay or be deported. That would allow people to heal from trauma and lead to fewer appeals, he argued.

The backlog of pending immigration court cases has exploded in recent months, reaching nearly 1.6 million by December, according to the Transactional Records Access Clearinghouse, a nonpartisan data research center at Syracuse University. It has tripled since 2016.

Under the new system, asylum officers will grant decisions within roughly 90 days. Immigration court appeals will generally take another 90 days, officials said.

During his first year in office, Biden took roughly 300 executive actions on immigration, nearly a third of them to reverse course on Trump-era policies, according to an analysis by the Migration Policy Institute, a Washington-based think tank.

One area he did not change: For the last two years, the border has been closed to the vast majority of asylum seekers under a restrictive pandemic-era policy initiated by former President Trump. The policy, known as Title 42, invokes a 1944 public health statute to quickly expel migrants who attempt to enter the U.S. in order to curb the spread of the coronavirus.

Among more than 1.7 million people detained by U.S. Customs and Border Protection at the southwest border during fiscal year 2021, 61% were expelled under Title 42, according to agency data.

Experts say those rapid removals under Title 42 resulted in an increase in unauthorized crossings into the U.S. by people who would have otherwise requested asylum at an official port of entry. The rapid removals back to Mexico also led to repeated border crossing attempts by migrants — inflating the number of Customs and Border Protection apprehensions.

Earlier this month, the U.S. Centers for Disease Control and Prevention formally ended that policy for children traveling without a parent, saying their expulsion “is not warranted to protect the public health.” Immigrant advocates and Democratic congressional leaders have argued that the policy is illegal and have ramped up calls in recent weeks to also end its application to adults traveling alone and parents traveling with their children.

But asylum seekers will see no substantial changes, even once the updates are in place, until the CDC decides to end Title 42 entirely. In recent weeks, as the response to the pandemic has changed within the U.S., federal officials have begun planningfor the possible end of the policy.

The asylum overhaul will be implemented in phases, though officials said they have yet to decide where to roll out the initial program and whether to target any specific population, such as single adults or families.

On a call with reporters last week, Mayorkas said the phased implementation of the new asylum system is designed to avoid straining Citizenship and Immigration Services. The agency has teetered on bankruptcy, he added, and was “virtually dismantled” under the Trump administration, whose immigration approach deterred many immigrants from filing applications before the pandemic further reduced the agency’s caseload.

“We have to be mindful of the resource constraints of the asylum division in U.S. Citizenship and Immigration Services as we rebuild that agency,” he said, noting that the agency is almost entirely funded by application fees.

Under the proposed rule, the agency estimated it would need to hire 800 new employees and spend $180 million to be able to handle 75,000 cases annually.

Before the pandemic, migrants encountered near the border were screened by agency asylum officers for fear of persecution. Those who passed the initial screening would have their cases moved to the immigration courts, where a judge would decide whether they qualified for asylum or another form of protection and could stay in the U.S.

Meanwhile, they were detained or released pending a final court hearing. Immigrants facing deportation don’t have the same right to a publicly funded attorney as people in criminal proceedings, and most represent themselves.

To qualify for asylum, immigrants must prove a fear of persecution in their home country based on one of five protected categories: political opinion, race, religion, nationality, or membership in a particular social group.

Officials hope the new asylum policy will curb unauthorized migration.

“The ability to stay in the United States for years waiting for an initial decision may motivate unauthorized border crossings by individuals who otherwise would not have sought to enter the United States and who lack a meritorious protection claim,” the rule states.

The goal is also to reduce the stress for those who ultimately receive asylum or other immigration protections, according to the rule, as currently, “they are left in limbo as to whether they might still be removed, are unable to lawfully work until their asylum application has been granted or has remained pending for several months, and are unable to petition for qualified family members, some of whom may still be at risk of harm.”

Source: Biden administration announces asylum system overhaul: What you need to know

USA: Investor immigrants say their applications are viable despite program lapse

Of note:

A group of immigrant investors have filed a lawsuit claiming the Biden administration is unlawfully refusing to process their applications for visas and green cards after Congress allowed a major visa program they participated in to lapse.

More than a dozen plaintiffs in a complaint filed in Seattle federal court on Thursday said that while a program earmarking EB-5 visas for investors who pool money has expired, federal law still requires U.S. Citizenship and Immigration Service and the Department of State to process their applications, which were filed before the expiration.

The EB-5 program allows foreign citizens who invest $1 million in a U.S. business – or $500,000 in economically depressed areas – and create at least 10 jobs to qualify for visas and green cards.

The plaintiffs, who are citizens of Canada, Russia, India and other countries, applied to participate in the EB-5 Regional Center program, which reserves thousands of visas each year for investors who pool their money into large economic development projects.

Authorization for the program, which was first created in 1992, expired in June without action from Congress and its future is still in limbo. USCIS in December said it would not process visa and green card applications tied to the program until it is renewed.

But in Thursday’s complaint, the plaintiffs said the expiration of the program only meant that the government no longer had to grant a preference to applicants involved in the Regional Center program. The federal Immigration and Nationality Act still requires USCIS to process their EB-5 applications and set aside visas for them if they qualify, the plaintiffs said.

Jon Wasden of Wasden Banias, a lawyer for the plaintiffs, said that a decision in the plaintiffs’ favor could ultimately spur USCIS to process thousands of other pending applications.

USCIS and the Department of State did not immediately respond to requests for comment.

The case is Bajaj v. Blinken, U.S. District Court for the Western District of Washington, No. 2:22-cv-00189.

Source: Investor immigrants say their applications are viable despite program lapse

Biden seeking professional diversity in his judicial picks

Significant. In contrast, my analysis of judicial appointments under the Liberal government (close to 500 appointments, 55.7 percent women, 8.5 percent visible minorities, 3.1 percent Indigenous):

President Joe Biden spent a recent flight aboard Air Force One reminiscing with lawmakers and aides about his start as a young lawyer in Delaware working as a public defender in the late 1960s.

The flight from New York to Washington was short, and there wasn’t much time to explore the president’s brief time in the job during the civil rights era. But as Biden considers his first Supreme Court nominee, this lesser-known period in his biography could offer insight into the personal experience he brings to the decision. The account was relayed by a person familiar with the trip who insisted on anonymity to discuss it.

Biden has already made history by nominating more public defenders, civil rights attorneys and nonprofit lawyers to the federal bench during his first year in office than any other president, increasing not just the racial and gender diversity of the federal judiciary but also the range of professional expertise. And it’s possible that theme will continue as he looks to make more history by nominating the first Black woman to the nation’s highest court.

While three of the current justices have experience as prosecutors, none was a criminal defense attorney. The last justice with serious experience in defense was Thurgood Marshall, a civil rights attorney nominated about 55 years ago. He was the first Black person on the court and retired in 1991.

Some of the women on Biden’s list of potential nominees have deep public defense or civil rights backgrounds: Ketanji Brown Jackson, 51, for example, worked as a public defender and served on the U.S. Sentencing Commission before she was nominated to the bench by President Barack Obama. Eunice Lee, 51, whom Biden named to the U.S. Court of Appeals for the 2nd Circuit in August, is the first former federal defender to serve on that court.

Biden’s judicial appointments thus far make clear his interest in professional diversity.

Nearly 30% of Biden’s nominees to the federal bench have been public defenders, 24% have been civil rights lawyers and 8% labor attorneys. By the end of his first year, Biden had won confirmation of 40 judges, the most since President Ronald Reagan. Of those, 80% are women and 53% are people of color, according to the White House.

“It’s so important to have a diversity of perspectives and having the judiciary really reflect the diversity of lived experiences and perspectives of the folks who are coming before them,” said Lisa Cylar Barrett, director of policy at the NAACP Legal Defense & Educational Fund.

The Supreme Court hears only a fraction of federal cases filed each year. Federal judges are hearing most of the cases, with roughly 400,000 cases filed in federal trial courts a year. The high court hears only about 150 of the more than 7,000 cases it is asked to review annually.

Most of the judges appointed to the federal bench have worked as prosecutors, corporate attorneys or both. A survey three years ago found more than 73% of sitting federal judges were men, and more than 80% were white, according to the Center for American Progress.

A diversity of professional expertise makes for a more fair and just bench, advocates say. Judges draw on their personal histories to help them weigh arguments and decide cases, and they also learn from each other. Public defenders often represent the indigent and the marginalized, those who often can’t afford their own attorneys.

“They represent the 80% percent of people in the criminal legal system too low-income to afford a lawyer,” said Emily Galvin-Almanza, a former public defender who founded the nonprofit Partners for Justice. “So when you put a public defender on the bench, you’re putting a person on who listens with a very different ear. You have a person on the bench with an experience of the realities of very, very disempowered people.”

Biden’s brief time as a public defender isn’t widely discussed, and it isn’t listed in his official biography on the White House website. He’s more prone to talk about his 36 years as a senator and his time as head of the Judiciary Committee, where he oversaw six Supreme Court nominations.

But the president has spoken at times about his brief time as a public defender before he became a U.S. senator at the age of 29. It’s informed some of his decisions in office, like directing federal grant money for public defense and expanding other federal efforts on public defense.

“Civil rights, the Vietnam War and President Nixon’s rampant abuse of power were the reasons I entered public life to begin with,” Biden said in a 2019 speech in South Carolina during the presidential campaign. “That’s why I had chosen at that time to leave a prestigious law firm that I had been hired by and become a public defender — because those people who needed the most help couldn’t afford to be defended in those days.”

In a 2007 memoir, he called the job “God’s work.”

The president promised during his campaign for president that he’d nominate a Black woman to the bench, and he spent his first year in office broadening his potential applicant pool through judicial appointments. Most Supreme Court justices have come from federal appeals courts, but it’s not a requirement. Among the current justices, only Justice Elena Kagan wasn’t a federal appeals court judge before joining.

Federal judges are often chosen from state courts, which also lack in diversity. But Biden’s very public push to diversify federal judges could have an impact on how judges in the states look, too.

“Neither state courts nor federal courts reflect the diversity of the communities they serve, or the diversity of the legal profession. Courts across the country are falling short,” said Alicia Bannon, the director of the Judiciary Program at the Brennan Center for Justice at NYU School of Law. “But we’re hoping that is slowly changing.”

Biden has promised a rigorous selection process for his Supreme Court nominee. His team, led by former Democratic Sen. Doug Jones, is reviewing past writings, public remarks and decisions, learning the life stories of the candidates and interviewing them and people who know them. Background checks will be updated and candidates may be asked about their health. After all, it’s a lifetime appointment.

The goal is to provide the president with the utmost confidence in the eventual pick’s judicial philosophy, fitness for the court and preparation for the high-stakes confirmation fight. Interviewing potential candidates comes later, but Biden has already spoken to some of the women who may be under consideration back when they were being appointed to other courts.

Biden will also continue to seek the advice of lawmakers. He was to host Senate Judiciary Committee Democrats on Thursday, a White House official said.

Source: Biden seeking professional diversity in his judicial picks

Amid Slowdown, Immigration Is Driving U.S. Population Growth

Of note:

Overall, 2021 will go down as the year with the slowest population growth in U.S. history.

New census data shows why: Both components of growth — gains from immigration, and the number of births in excess of the number of deaths — have fallen sharply in recent years. In 2021, the rate of population growth fell to an unprecedented 0.1 percent.

Yet within these sluggish figures a new pattern is emerging. Immigration, even at reduced levels, is for the first time making up a majority of population growth.

In part this is because Americans are dying at higher rates and having fewer babies, trends accelerated during the coronavirus pandemic. But it’s also because there are signs that immigration is picking up again.

Even after four years of stringent controls on immigration imposed under former President Donald J. Trump, the overall share of Americans born in other countries is not only rising, but coming close to levels last seen in the late 19th century.

The numbers are not nearly what they once were. The latest report, from the Census Bureau’s population estimates program, showed a net gain of 244,000 new residents from immigration in 2021 — a far cry from the middle of the previous decade, when the bureau regularly attributed annual gains of one million or more to immigration.

Yet that drop-off pales in comparison to the slowdown in what demographers call “natural increase,” the excess of births over deaths. In 2021, that figure was 148,000, or one-tenth the gain that was normal a decade ago, and smaller than international migration for the first time ever.

As of December, immigrants represented 14.1 percent of the U.S. population, matching the peak of the decades-long immigration boom that began in the 1960s and approaching the record 14.8 percent seen in 1890, shortly before large numbers of Europeans began disembarking from vessels at Ellis Island.

The foreign-born population is increasingly concentrated among middle-age groups, with a large number of immigrants having lived in the United States for many years. About 1 in 5 Americans between the ages of 40 and 64 was born overseas. And two-thirds of foreign-born residents have been in the country more than a decade, the census data shows.

In that respect, the country’s demographics reflect the long-term effects of the huge levels of immigration it experienced during the 1970s and 1980s.

“We get so used to being around people who have been here for decades and navigate American society seamlessly that we almost forget they’re immigrants,” said Tomás Jiménez, a Stanford professor who researches immigration and assimilation.

The recent slowdown in immigration was an apparent result not only of the tougher immigration policies, but also measures taken in response to the Covid-19 health crisis. In the early months of 2020, the government sealed the borders with Mexico and Canada and limited international entries by air. The closure of U.S. consular offices around the globe derailed visa processing.

But the data suggests that tougher restrictions on the border may not have been the biggest factor in the slowdown. Many immigrants decided to leave the country. During the first years of Mr. Trump’s administration, the number of immigrants coming into the country held steady, while the number leaving increased, figures show.

Some data suggests that the pace of immigration has picked up lately. U.S. Customs and Border Protection reported a surge in enforcement activity last year, and the Census Bureau’s monthly employment survey also detected an uptick in foreign-born respondents in late 2021.

The economic and political circumstances that compel people to leave their home countries have persisted, and demand for foreign workers of all skill levels remains brisk.

The newcomers since President Biden took office come from all over the globe, as the government has lifted the cap on refugees, welcomed thousands of families seeking asylum on the southwestern border and reopened the door to foreign workers on temporary visas.

Among them is Jeff Quetho, 28, of Haiti, who crossed the border with his 3-year-old son, hoping to build a more stable life; Param Kulkarni, 34, an Indian scientist who specializes in mental health technology and artificial intelligence, who recently settled in New York; and Feroza Darabi, 22, of Afghanistan, who arrived in Phoenix with her 13-year-old nephew, Ali.

“I am happy to be somewhere safe,” Ms. Darabi said recently during a break from an English class for refugees at Friendly House in Glendale, Az.

Ms. Darabi hopes she will be joined one day soon by family members who were unable to scramble onto the plane she and her nephew boarded out of Kabul. “What I want most now is to have my family next to me,” she said.

If immigration returns to even its relatively modest prepandemic pace, it is possible the share of Americans born overseas could reach the record 14.8 percent from 1890.

The current labor shortage has heightened calls for foreign workers, in fields as varied as restaurant service and nursing, to help fill vacancies.

“The pandemic offers a little taste of what we may be facing if demand is robust and we don’t have workers,” said Pia Orrenius, a senior economist who studies immigration at the Federal Reserve Bank of Dallas. “We will see price and wage inflation, and growth will be choked off.”

“Immigration is not going to make this problem go away, but it certainly could help,” Ms. Orrenius said.

If immigration had continued at a prepandemic pace, the economy would have two million additional foreign-born workers in occupations such as manual labor and computer science, according to a recent study by economists at the University of California, Davis.

While the pandemic is seen as contributing to the slowdown in new immigration, it may have also helped prop up the number of foreign-born residents since that number depends not just on how many immigrants arrive but also how many leave. Virus travel restrictions made it harder for immigrants to enter the United States, but they also made it less likely they would depart, said Jeffrey Passel, a senior demographer at the Pew Research Center.

“During the pandemic, you couldn’t leave the country basically,” he said.

Some of the growth in the foreign-born population is related to a surge of migrants at the southwestern border that has been going on, to varying degrees, since 2014. But it is almost impossible to know the full extent. Not only is there no reliable accounting of how many people are entering the country illegally, it is not clear how many of them are being quickly expelled.

The decline in birthrate that has resulted in foreign-born people becoming an ever-larger share of the population is part of a worldwide demographic pattern. Historically, nations see a drop in birthrates as they become more prosperous, a trend that can undermine that prosperity.

When low fertility is coupled with low mortality, the result is a bulging population of seniors and relatively fewer workers to sustain them, a scenario faced by Japan and many European countries that then saw their economies shrink.

The movement of the baby boom generation out of the labor force amid a plummeting birthrate has put into sharper relief the need to reverse the decline in new immigration. This will be crucial, analysts say, despite the large numbers of immigrants already living in the country — soon those here legally will be drawing more from Social Security and Medicare.

The immigrants already here may provide part of the solution. Foreign-born residents typically account for a disproportionate share of all births because recent immigrant women are more likely than others to be in their prime childbearing years and to have more children.

Lower immigration from Mexico, traditionally the biggest source of new immigrants, has contributed to falling U.S. birthrates overall.

But it will take bold political moves to harness the economic benefits of the existing foreign-born population. Already, an estimated 11 million of them are undocumented, meaning they can work only as part of the underground economy. Mr. Biden took office with a pledge to legalize them but has failed to win bipartisan support for such a move in Congress.

He took steps to jump-start legal immigration, rescinding a proclamation by his predecessor banning the entry of foreigners on work visas.

Last month, his administration unveiled policies to attract international students and to extend the time that foreign graduates in science and technical fields can remain in the country to work, from one year to three years.

In December, the government announced that 20,000 seasonal guest worker visas would be added to the allotment of 33,000 for the winter to assist employers in landscaping, construction and hospitality, desperately in need of workers.

Yet Mr. Biden’s Republican opponents have consistently resisted large increases in new immigration, and the question of how the country moves forward is likely to be debated as campaigning picks up steam for this year’s congressional elections.

Source: Amid Slowdown, Immigration Is Driving U.S. Population Growth

Unlike Trump, Biden Plan Welcomes Immigrant Scientists And Engineers

Of note given likely impact on relative attractiveness of Canada compared to USA but degree not known:

Although Donald Trump said he favored “merit-based” immigration, his policy team never seemed to find high-skilled foreign nationals it wanted to let work in the United States. In contrast, the Biden administration has proposed new policies that take the opposite approach.

Announced January 21, 2022, the new Biden policies can be divided into four general areas. Each holds the potential for making America more welcoming for talented foreign-born individuals at a time when human capital and innovation have never been more valuable to a nation.

Improved National Interest Waivers For Employment-Based Immigrants: As reported earlier in an article previewing immigration in 2022, new guidance for “National Interest Waivers” in the employment-based second preference could be a significant improvement for many immigrants. “The USCIS [U.S. Citizenship and Immigration Services] policy update clarifies how the national interest waiver can be used for persons with advanced degrees in STEM [science, technology, engineering and math] fields and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities,” according to a Biden administration fact sheet describing the new policies. “This update will promote efficient and effective benefit processing as USCIS reviews requests for national interest waivers.”

The new guidance could expand the use of national interest waivers for immigrant entrepreneurs and potentially for a broader range of highly skilled individuals with expertise in science, engineering and other fields. The narrow interpretation in current USCIS guidance has frustrated immigrants since using such waivers allows foreign nationals to “self-petition.” That means (per USCIS) “they do not need an employer to sponsor them.” National interest waivers can also be a relief from the Department of Labor’s lengthy labor certification process. 

(See here for the USCIS policy manual update on national interest waivers.)MORE FOR YOUNATO’s Technology Innovation Initiatives Are Moving Into High GearAI 50 2021: America’s Most Promising Artificial Intelligence CompaniesImpossible Foods’ CEO Says Going Public Is ‘Inevitable.’ So Why Have Most Of 2021’s Food Listings Spoiled?

Updating O-1A Visas: “O-1A [are for] individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry),” according to USCIS. However, in the past, USCIS has adopted a narrow view of who is eligible for the visas. A Biden administration official said on background the new policy is expected to expand significantly the eligibility for O-1A visas in STEM fields. (See here for the USCIS policy manual update on O-1A visas.)

“In this update, the Department of Homeland Security (DHS) is clarifying how it determines eligibility for immigrants of extraordinary abilities, such as Ph.D. holders, in the science, technology, engineering, or math (STEM) fields,” according to the fact sheet. “The new update provides examples of evidence that may satisfy the O-1A evidentiary criteria and discusses considerations that are relevant to evaluating such evidence, with a focus on the highly technical nature of STEM fields and the complexity of the evidence often submitted.”

Dan Berger of Curran, Berger & Kludt thinks the new O-1A guidance will be helpful. “O-1 visas had become more difficult to obtain,” he said in an interview. “New guidance is helpful to clarify how the statutory criteria apply to STEM fields and the modern world. Many of the criteria were written before the internet age.”

Expanding Eligibility For STEM OPT: As discussed here, the Biden administration has expanded eligibility for STEM Optional Practical Training (OPT), which allows international students to gain practical experience for 12 months and an additional 24 months in a STEM field. Many international students would not come to America without OPT and the ability to work in their field, including the potential later to obtain H-1B status and an employment-based green card. 

In a Federal Register notice (January 21, 2022), the Department of Homeland Security (DHS) announced, “The Secretary of Homeland Security is amending the DHS STEM Designated Degree Program List [for OPT] by adding 22 qualifying fields of study.” The fields include Cloud Computing, Anthrozoology, Climate Science, Mathematical Economics, Business Analytics, Data Visualization, Financial Analytics and others. (More details are available in the Federal Register notice.)

Expanded Programs For J-1 Exchange Visitors: The Biden administration has also proposed two expansions in the use of J-1 visas that may represent new routes to America for individuals in STEM fields. “The U.S. Department of State’s Bureau of Educational and Cultural Affairs (ECA) is announcing an ‘Early Career STEM Research Initiative,’ to facilitate non-immigrant BridgeUSA exchange visitors coming to the United States to engage in STEM research through research, training or educational exchange visitor programs with host organizations, including businesses,” according to the administration’s fact sheet. “ECA is also announcing new guidance that will facilitate additional academic training for undergraduate and graduate students in STEM fields on the J-1 visa for periods of up to 36 months.” 

Without reviewing text on the new J-1 policies, Lynden Melmed, a partner at Berry Appleman & Leiden and former chief counsel for USCIS, said the changes could be quite positive. He also views the other policy proposals favorably.

“Immigration is often about fitting square pegs into round holes, and that won’t ever change,” he said in an interview. “But over the years, the policy guidance and procedures have become so inflexible that we risk losing employees who are working in developing fields critical to national security. The guidance on O-1 visas and foreign students restores some sanity to the process.”

“Expanding the number of STEM fields is long overdue and very welcome,” he said. “DHS took a careful approach when it first issued the STEM list. Today’s announcement is key because it signals the government will try to keep up with the rapidly changing academic environment.” 

Statistics on international students help illustrate why the Biden approach aimed at attracting international students makes more sense than the Trump administration’s restrictive policies. “At U.S. universities, foreign nationals account for 82% of the full-time graduate students in petroleum engineering, 74% in electrical engineering, 72% in computer and information sciences, 71% in industrial and manufacturing engineering, 70% in statistics” and over 50% in many other fields, according to a National Foundation for American Policy analysis. “At many U.S. universities, the data show it would be difficult to maintain important graduate programs without international students.”

The State Department and U.S. Citizenship and Immigration Services still need to improve processing, and Congress must enact many immigration reforms. Notable reforms would include increasing the number of employment-based green cards and H-1B visas and eliminating the per-country limit for employer-sponsored immigrants. 

It is easy to forget the Trump administration’s generally hostile policies toward foreign-born scientists and engineers. In 2020, Donald Trump blocked the entry to the United States of employment-based immigrants and H-1B visa holders via proclamations, and it took unfavorable court rulings on H-1B visas for USCIS finally to end four years of restrictive immigration policies against employers. Should the same policy team return to the White House in 2025, the goal on foreign talent likely won’t be to shut the barn door tighter but to dismantle the barn and close down the farm.

The Biden administration sees international education and innovation much differently from its predecessor, and the context from which these new policies have been proposed is clear. America is viewed as losing ground to China and other countries in the battle for talent. The latest proposals show the U.S. government is now attempting to join this battle and encourage talented foreign-born scientists and engineers to become part of the U.S. economy and the nation.


The Decline of Legal Immigration | Cato at Liberty Blog

Useful stats. MPI had a very good webinar assessing the Biden administration immigration policy and program changes. Lot more happening through executive orders (close to 300 in the past year, about 100 related to reversing Trump administration measures) than the high level debates would indicate:

Legal immigration collapsed in the last year of the Trump administration. The number of green cards issued abroad were declining prior to the pandemic, partly for policy and other reasons, but the American government’s overreaction to COVID-19 caused immigration to collapse as we’ve detailed here, here, here, here, and here.

Since President Biden took office in January 2021, the recovery of legal immigration has been much slower than we anticipated. The new vaccine mandate for immigrants (as we’re seeing in other countries with the Novak Djokovic scandal), the remaining closure of many embassies and consulates that reduce interviews for visas and their subsequent issuance, the delayed release of extra visas approved by Congress, and additional haphazardly imposed travel restrictions have greatly reduced the scope of legal immigration.

Despite those restrictions, the number of legal immigrant visas issued abroad has partly recovered from a low of 697 (that’s not a typo) in May 2020 to 35,647 in November 2021 (Figure 1). That’s 16 percent below the average of 42,390 immigrant visas issued monthly from January 2017 through February 2020, during Trump’s presidency but prior to COVID-19. December 2021 and January 2022 will likely show lower numbers.

As bad as the numbers for immigrant visas are, the number of non‐​immigrant visas issued abroad every month is even worse. Non‐​immigrant visas are for students, temporary workers, tourists, and others who can temporarily travel to the United States or reside here for a specific time and purpose. Figure 2 shows that 40,939 were issued in May 2020, the low point of the series, down from a monthly average of 738,642 from January 2017 through February 2020 – a 95 percent decline. The numbers have since climbed to a paltry 391,022 in November 2021 – far shy of their pre‐​pandemic numbers.

The Biden administration needs to rapidly reverse this situation, recover the lost visas through legislation, and go even further or the U.S. economy will suffer long run drags on its growth.

Source: The Decline of Legal Immigration | Cato at Liberty Blog

2021 Might Be A Decisive Year For H-1B Visas

Significant, given possible effects on relative attractiveness of Canada to potential immigrants:

The Trump administration was hostile to high-skilled immigration, but the Biden administration may enact the most enduring policy changes to H-1B visas. And the changes might not be positive for employers. A series of decisions loom on regulations that would affect who can receive H-1B petitions, how much employers must pay H-1B professionals and much more.

The Big Picture: “H-1B visas are important because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United Statesand have the chance to become employment-based immigrants and U.S. citizens,” as discussed in a recent Forbes article. “In short, without H-1B visas, nearly everyone from the founders of billion-dollar companies to the people responsible for the vaccines and medical care saving American lives would never have been in the United States.”

The number of H-1B visas is small for a country the size of the United States. The 85,000 annual H-1B limit—the 65,000 regular cap and the 20,000-exemption for H-1B visa holders with a master’s degree or higher from a U.S. university—comes to 0.05% of the U.S. labor force. Companies are allowed to file for only 85,000 new H-1B petitions in a year, and about two-thirds, or 56,000 a year, are in computer occupations. 

The U.S. job market is strong for individuals who work in computer occupations. The unemployment rate in math and computer occupationswas 2.5% in April 2021, below the 3%, lower than in January 2020 before the pandemic began. 

Today, there are well over 1 million active job vacancy postings in computer occupations, according to a National Foundation for American Policy (NFAP) analysis of Emsi Job Posting Analytics. “There is not a fixed number of jobs, and people with high skills often create more jobs for people with complementary skills,” notes the NFAP analysis. “Still, even if one adopts a zero-sum approach, there are nearly 20 times more job vacancy postings in computer occupations than new H-1B petitions typically used by companies in computer occupations each year. There are also likely many more openings than publicly posted positions.”MORE FOR YOUFederal Judge Hears Arguments Against Trump’s H-1B Visa BanH-1B Visa Denials Continue To Mount For CompaniesCourt Hearing Shows Businesses Could Prevail Against H-1B Visa Rules

With regional Covid-19 bans still in place and many U.S. consulates either not operating or working in a limited capacity, visa backlogs, including for H-1B and L-1 visa, will continue to mount until the State Department commits to new policies. Jeffrey Gorsky, former Chief of the Legal Advisory Opinion section of the Visa Office in the U.S. Department of State, believes the State Department could become more creative with biometric intake, give visa processing a higher priority and conduct more interviews via video. He believes interviews via Zoom would meet the statutory definition of in-person interviews.

Due to Trump administration policies that U.S. courts found unlawful, H-1B denial rates reached 24% for initial employment and 12% for continuing employment in FY 2018 (compared to 6% and 3% in FY 2015). After USCIS agreed to a settlement with the ITServe Alliance that overturned years of restrictive policies, H-1B denial rates returned to pre-Trump levels (after costing companies millions of dollars). The Biden administration may remove some restrictions on H-1B visa holders that prevent them from starting businesses, according to the New York Times.

Still, the H-1B annual limit is low. Employers filed 308,000 H-1B registrations for cap selection for FY 2022, according to USCIS. That means over 72% of H-1B registrations for high-skilled foreign nationals were rejected even before an adjudicator evaluated the application.

The economic literature shows loosening restrictions on H-1B visas would benefit the U.S economy and American workers. A study by economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin found, “The number of jobs for U.S.-born workers in computer-related industries would have grown at least 55% faster between 2005-2006 and 2009-2010, if not for the denial of so many applications in the recent H-1B visa lotteries.”

Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found in her research that H-1B restrictions push technology-related jobs out of the United States: “[A]ny policies that are motivated by concerns about the loss of native jobs should consider that policies aimed at reducing immigration have the unintended consequence of encouraging firms to offshore jobs abroad.”

Some policymakers argue America needs even more restrictive laws and rules to block the hiring of foreign-born scientists and engineers. As discussed below, the Biden administration will soon decide on a series of restrictions that could produce significant changes in H-1B visa policy.

Rule Would Make it Less Likely International Students Will Get H-1B Petitions: Before Donald Trump left office, his administration finalized a regulation that would end the H-1B lottery and replace it with a system that awards H-1B petitions by highest to lowest salary level. Many attorneys consider the regulation to be unlawful, and there are pending lawsuits against the rule. Instead of taking steps to rescind the rule, the Biden administration only delayed the regulation until next year’s H-1B cap selection.

In addition to questions of legality, the rule finalized by the Trump administration would fulfill a long-standing goal of Trump White House adviser Stephen Miller and his allies to make it more difficult for international students to obtain an H-1B petition, which would discourage many students from coming to America in the first place.

International students are disadvantaged under the rule because choosing H-1B petitions by salary level favors individuals with the most experience in the labor market over those with the least experience. “The National Foundation for American Policy found that an international student may be 54% more likely to get an H-1B petition under the current H-1B lottery system than under the Trump administration’s regulation that would end the H-1B lottery,” according to an NFAP analysis of actual cases of recent international students and filings for H-1B petitions. “The data demonstrate the new regulation would have a significant negative effect on the ability of international students to gain an H-1B petition.”

“The law firm Curran, Berger & Kludt provided NFAP with 170 cases of F-1 students with applications for H-1B cap selection for FY 2018, FY 2019, FY 2020 and FY 2021,” according to NFAP. “Under the current system that randomly selects H-1B petitions, 60% of the F-1 students were chosen through the H-1B lottery. However, the law firm provided information on the pay levels (Level 1 through 4) for the students’ H-1B applications, and NFAP found if the new regulation had been in effect, only 39% of the students’ H-1B petitions would have been selected.” Education organizations had warned the Trump administration’s rule would harm international students and make studying in America less attractive.

Rule to Force Employers to Pay H-1B Visa Holders and Employment-Based Green Card Applicants Well Above Market Wages: Under a Department of Labor (DOL) rule, published in the final days of the Trump administration, “employers must pay 23% to 41% higher salaries than under the current system across a range of occupations if they want to employ high-skilled foreign nationals in America,” according to a National Foundation for American Policy (NFAP) analysis.

The rule would apply to H-1B visa holders and employment-based immigrants and could have a devastating impact on both. H-1B visa holders waiting in the green cards backlog might be forced to leave the country if an employer could not extend their H-1B status at the new, much higher required salary level.

There is no evidence H-1B visa holders and employment-based immigrants as a group are underpaid relative to native-born professionals. Numerous economic studies have found high-skilled foreign nationals, on balance, earn more than their native-born counterparts. For example, Andrew Chamberlain, the chief economist at Glassdoor, found, “Across the 10 cities and roughly 100 jobs we examined, salaries for foreign H-1B workers are about 2.8% higher than comparable U.S. salaries on Glassdoor.” A recent study by Utah State University economist Omid Bagheri finds a larger wage premium for high-skilled foreign nationals.

The Biden administration published a notice of an agency action to delay the DOL rule until November 14, 2022. At the same time, the administration requested information from the public on data sources for calculating the prevailing wage.

Three courts blocked the rule when it was published as “interim final” in October 2020. On January 14, 2021, the Trump administration published a final rule that was only slightly modified from the original and carried the same aim—to price H-1B visa holders and employment-based immigrants out of the U.S. labor market. “The revisions to the rule don’t change the fact that it still fails to do what the law requires—to reflect the actual, prevailing wage for workers in that geographical area doing similar work,” said Kevin Miner, a partner at Fragomen. 

The U.S. Chamber of Commerce and allied business groups and education organizations filed an amended complaint that argues the regulation to end the H-1B lottery is unlawful and continued its lawsuit to end the Department of Labor wage regulation.

New Regulation on Work at Third-Party Sites: “USCIS is still aiming to have a regulation in place by FY23 cap season to restrict use of the H-1B category by outsourcing companies by changing the ‘employer-employee relationship’ definition,” according to Berry Appleman & Leiden. Peter Bendor-Samuel, founder and CEO of Everest Group, argues access to talent is key for competitiveness as information technology services companies attempt to build digital platforms for U.S. companies. “Almost every major U.S. firm is building some form of digital platform so it can enhance its competitive position both domestically and internationally,” he said. “This is probably the most important thing these firms are doing and success will define both company and global success as we move into the future.”

The mistaken premise of nearly all restrictions on high-skilled immigration is that foreign-born scientists and engineers offer no value to America or U.S. companies except for a willingness to work for less money. Some policymakers believe that people born in other countries possess inferior abilities to people born in the United States—hence the belief companies must pay them lower salaries—and incorrectly assume that only a fixed number of jobs exist in the U.S. economy. The Biden administration has an opportunity to adopt a more forward-looking policy.