USA: The Outlook On H-1B Visas And Immigration In 2023

Good overview and we will see the degree to which change will happen given political polarization and deadlock:

For the seventh consecutive year, we should not expect Donald Trump to visit the Statue of Liberty and celebrate America’s tradition as a nation of immigrants. But what will Joe Biden, his administration and the Republican majority in the House do on H-1B visas and immigration in 2023? 

H-1B Visas, Immigration Fees and Employment-Based Green Cards

Higher fees and significant business immigration regulations are on the Biden administration’s agenda in 2023. “After the fee rule, DHS will prioritize proposed regulations on adjustment of status procedures and H-1B ‘modernization,’” according to Berry Appleman & Leiden. “A proposed wage regulation remains on the Department of Labor’s regulatory agenda, but the agency has not yet submitted a proposed rule for review and the timing is not yet clear.”

In computer-related occupations, the median salary for H-1B visa holders was $111,000 in FY 2021. The average salary for H-1B professionals in computer-related occupations in FY 2021 was $118,000, according to USCIS. A company may spend up to $31,000 to file an initial H-1B petition (for three years) and an extension for an additional three years, based on an NFAP analysis of government fees and attorney costs.

The summary of the adjustment of status regulation, which does not list a publication timetable, reads: “DHS proposes to amend its regulations in order to improve the efficiency in the processing of the Application to Register Permanent Residence or Adjust Status (Form I-485), reduce processing times, improve the quality of inventory data provided to partner agencies, reduce the potential for visa retrogression, and promote the efficient use of immediately available immigrant visas to include the expansion of concurrent filing to the employment-based 4th preference (certain special immigrants) category, including religious workers.”

The summary of the H-1B modernization regulation reads: “The Department of Homeland Security (DHS) is proposing to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. Specifically, DHS proposes to revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

A National Foundation for American Policy (NFAP) report concluded, “In formulating a new H-1B regulation, U.S. Citizenship and Immigration Services (USCIS) should avoid the Trump administration’s approach of narrowing what qualifies as a specialty occupation” and the agency should not redefine what constitutes an employer-employee relationship. 

“Congress designated the U.S. Department of Labor (DOL), not USCIS, to investigate and oversee the labor market protections for the H-1B visa category. By attempting to take on the duties of another agency, USCIS has engaged in questionable policy pursuits and expended vital resources,” according to former USCIS Director Leon Rodriguez, former USCIS Chief Counsel Lynden Melmed, and former Associate Counsel for the USCIS Vermont Service Center Steve Plastrik. The three wrote that USCIS does not need to enact new H-1B restrictions via memos or regulations since Congress has already imposed significant restrictions, including wage requirements and a low numerical limit.

The H-1B numerical limit is so low that in April 2022, the annual limit of, in effect, 85,000 new H-1B petitions for employers—about 0.05% of the U.S. labor force—led to USCIS rejecting about 400,000 (80% of) applicants. Even with layoffs at high-profile technology firms, one should expect H-1B registrations to exceed the 85,000-limit for FY 2024. The significant demand for technical labor across sectors of the U.S. economy should outstrip the annual limit. (“Most laid off tech workers are finding jobs shortly after beginning their search,” according to a survey cited by the Wall Street Journal.)

Employer fees will likely increase significantly under a new USCIS proposal. That will not be welcomed by those paying the fees. On the other hand, employers and individuals would like to see USCIS have sufficient resources to do its job. In December 2022, USCIS stated in a report that it reduced its backlog of cases but that more funding from Congress is needed. Berry Appleman & Leiden notes USCIS “cites the new fee rule as part of its plans to prevent the accumulation of new backlogs.”

Although the State Department has made progress, employers expect delays in obtaining visas to continue in some places, such as India. Visitor visas will likely remain particularly problematic.

DACA: Good News Not Expected

“The worst case, which unfortunately is a very realistic possibility, is that the courts will invalidate the Deferred Action for Childhood Arrivals (DACA) program,” said Andrew Pincus, an attorney with Mayer Brown, in a September 2022 interview. “That means that more than 600,000 people will lose the ability to work, to drive a car, to participate in society, and also that they will face the possibility of being deported to countries they have never known because they came here as children.” A DACA case is currently at the Fifth Circuit.

Passing legislation to protect DACA recipients in a Republican-controlled House will be challenging. “[Rep. Kevin] McCarthy is taking a very hard line on immigration policy,” reported Punchbowl News. “The California Republican is opposed to trading a pathway to citizenship or DACA for increased border security. This is the traditional trade both parties have envisioned for years.” Sen. Kyrsten Sinema (I-AZ) and Sen. Thom Tillis (R-NC) failed to gain enough Republican support for a compromise proposal on Dreamers at the end of 2022. 


The Biden administration resettled fewer than 26,000 refugees in FY 2022, nearly 100,000 below the 125,000-refugee ceiling it established. The refugee ceiling is the same for FY 2023, but to meet that level, “President Biden must make the resettlement program a priority, investing resources and political will in creative solutions to expedite processing,” according to the National Immigration Forum’s Danilo Zak.

Americans have stepped forward and offered their time as volunteers and money as sponsors to help those fleeing war and persecution in Afghanistan, Ukraine and elsewhere. The Biden administration has implemented the successful Uniting for Ukraine initiative that has allowed over 90,000 Ukrainians to be paroled into the United States with the help of U.S. financial sponsors, according to Michelle Hackman at the Wall Street Journal, with another 34,000 approved for travel. A more limited program was established for Venezuelans. 

The Border

The Biden administration has not made the case that America is dealing with a historic refugee crisis in the Western Hemisphere to counteract the narrative that the United States has simply failed to enact sufficiently harsh immigration policies. Border Patrol encounters in FY 2021 and FY 2022 were the highest on record but not wholly comparable to previous fiscal years that only counted apprehensions and did not have Title 42 restrictions in place.

Still, individuals and families from Venezuela, Nicaragua, Cuba and others have come to the United States in large numbers seeking asylum or employment. To the extent the Biden administration can funnel people into lawful paths to apply for work or asylum, Border Patrol encounters will diminish. More creative solutions may be needed to address the situation, including expanding the avenues to work and supplying refugee circuit rides in the region.

Supreme Court Cases

Judges will have a say on U.S. immigration policy in 2023. In 2022, the Supreme Court heard oral arguments in United States v. Texas, a lawsuit by Texas and Louisiana that argues the Biden administration’s enforcement guidelines, as outlined in a memo, are unlawful. George Mason University law professor Ilya Somin expects the Biden administration to prevail. “But it’s not entirely clear whether it will do so on standing or on the merits,” according to Somin.

The Supreme Court will also decide the fate of Title 42 and a lawsuit by several Republican-led states. “In its order, the court . . . agreed to take up the states’ appeal this term,” reported CNN. “The court said it would hear arguments on the case during its argument session that begins in February 2023.”

Two Years to Enact Positive Immigration Reforms

The Biden administration can use the next two years to enact reforms to improve the U.S. economy and the immigration system. One such reform, recommended by University of North Florida economist Madeline Zavodny in an NFAP study, would allow all spouses of H-1B visa holders to work, not only those whose H-1B spouse is in the queue or in the process for permanent residence. “The United States can reap significant economic benefits, ease labor shortages, and attract more workers in the global competition for talent if it expanded current rules on work eligibility for the spouses of H-1B visa holders,” writes Zavodny.

The Trump administration failed to lock in many of its anti-immigration policies via regulation. The Biden administration has two years to publish regulations or enact new policies that would benefit immigrants, international students and the competitiveness of the U.S. economy.

Source: The Outlook On H-1B Visas And Immigration In 2023

Anderson: U.S. Immigration Critics Ignore Canada’s Welcome Mat For Immigrants

How USA immigration advocates use or abuse Canada as an immigration example. Good analysis of why point systems unlikely to fly in the USA given the inherent politicization and legislative rigidity:

When Sen. Tom Cotton (R-AR) proposed reducing U.S. legal immigration levels by half, he highlighted Canada, a country that admits four times as many immigrants as a percentage of its population as the United States. Canada has announced it will boost its annual immigration level to 500,000 by 2025, illustrating that a high level of immigration compared to other nations is a central feature of Canada’s immigration system.

“Last year Canada welcomed over 405,000 newcomers—the most we’ve ever welcomed in a single year,” said Sean Fraser, Minister of Immigration, Refugees and Citizenship, in a press statement. “The Government is continuing that ambition by setting targets in the new levels plan of 465,000 permanent residents in 2023, 485,000 in 2024 and 500,000 in 2025. . . . This plan helps cement Canada’s place among the world’s top destinations for talent, creating a strong foundation for continued economic growth, while also reuniting family members with their loved ones and fulfilling Canada’s humanitarian commitments.


The most significant statistic in Canada’s latest report highlights how critical immigration is to the country’s labor force growth: “Immigration accounts for almost 100% of Canada’s labor force growth, and, by 2032, it’s projected to account for 100% of Canada’s population growth,” according to Immigration, Refugees and Citizenship.

In the United States, opponents of immigration have promoted the “lump of labor fallacy,” the notion discredited by economists that there is a fixed quantity of labor needed in an economy. As a result, the focus of immigration restrictionists has been to reduce labor force growth under the mistaken belief that it would help the U.S. economy. Economists note that labor force growth is an essential element of economic growth, which is needed to elevate the standard of living in a country.

As in Canada, immigration is crucial to labor force growth in the United States. Economists note that by reducing immigration—such as when the Trump administration enacted restrictive administrative changes—government officials harm the U.S. economy.

By 2025, Canada will admit 12.5 immigrants per 1,000 residents, compared to the United States welcoming 3.0 immigrants per 1,000 residents in 2025, based on a National Foundation for American Policy projection. In other words, Canada will admit approximately four times as many immigrants as the United States on a per capita basis. If the United States adopted all elements of the Canadian system, the U.S. would admit more than 4 million immigrants a year instead of the approximately 1 million permanent residents admitted in FY 2019, the last year before the Covid-19 pandemic.

By 2025, Canada will admit twice as many family immigrants as the United States as a percentage of population and several times more refugees and humanitarian admissions per capita.


In August 2017, Sen. Tom Cotton and Sen. David Purdue (R-GA) cited the Canadian immigration system in arguing for their new bill the RAISE Act. “The RAISE Act would replace the current permanent employment-visa system with a skills-based points system, akin to the systems used by Canada and Australia,” according to a Cotton-Perdue press release.

Analysis shows Sen. Cotton and others have proposed a point system not to help employers or make the United States more competitive, but to eliminate family immigration categories and reduce immigration. In addition to admitting many fewer immigrants, the RAISE Act would have eliminated approximately 4 million people from family and employment-based immigration backlogs who had waited in line for years.

Cotton and Purdue made what economists would consider a contradictory argument for their bill. The senators argued their legislation would “spur economic growth” while “reducing overall immigration by half.” However, reducing immigration would lead to lower economic growth, not “spur” it. Joel Prakken, senior managing director and co-founder of Macroeconomic Advisers, estimated a 50% reduction in legal immigration would lead U.S. economic growth to decline by 12.5% from its projected levels.

Analysts note that the RAISE Act or similar proposals, by instituting a points-based system and eliminating nearly all family immigration categories, would deprive Americans and business owners of the freedom to sponsor close family members or coveted workers. During a Fox News candidate forum in Ohio, J.D. Vance endorsed the RAISE Act, which would worsen labor shortages by reducing immigration, in response to an Ohio business owner who said he could not find enough workers due to widespread labor shortages.

On February 15, 2018, the U.S. Senate rejected a measure to eliminate most family immigration categories, voting it down on a “cloture motion” 60-39. A Trump presidential proclamationcontained a similar “suspension” of immigrants entering the United States in those categories.

Canadian and Australian Point Systems Unlikely To Work In America

report from the National Foundation for American Policy and National Immigration Forum explains why a Canadian or Australian-style point system would likely be a poor fit for the United States. (I wrote the report.)

First, after examining the Canadian and Australian immigration systems, the primary conclusion from the report was that a point system wouldn’t work in the United States, except perhaps as a separate add-on that retains the current family and employer-sponsored immigration system. “Evidence indicates that America’s separation of executive and legislative powers makes it unlikely that a point system could operate effectively or in a manner similar to those in Canada or Australia, which have parliamentary systems of government and agencies with the authority to make rapid and unilateral changes to a point system when problems arise,” according to the report.

“That would not be possible under our laws and structure. Moreover, under a point system, as envisioned, U.S. employers would no longer decide which employees are most valued. Instead, admissions would be subject to government-designed criteria.” The report noted awarding points based on highest level of education would ignore the need for workers across the skill spectrum, such as in construction and hospitality or caregivers for seniors.

While Canada’s structure allows for relatively quick adjustments in point criteria, that is unlikely to happen in the United States. Instead, Congress would pass a law and set qualifications that might not change for decades. Ceding greater authority to an immigration bureaucracy would be unlikely to work, since it can take many years for a federal agency to enact a regulation and enact changes.

There is another risk to further empowering an immigration agency, the report and other analyses noted. White House adviser Stephen Miller showed how it was possible for the executive branch to use administrative means to prevent the admission of legal immigrants. After that experience, many would ask if it was wise to hand over even more authority to the executive branch to administer the U.S. immigration system.

Second, in Australia, the point system is largely irrelevant to employers, which has an employment-based immigration system similar to current U.S. law. “The point system is not at all important for corporate immigration in Australia,” said Tim Denney, formerly an attorney with Berry Appleman & Leiden in Sydney, Australia. “The points system comes into play when an individual seeks to migrate to Australia and does not have a business operating in Australia willing to sponsor him or her upfront for either a temporary work visa or permanent residence.”

In Canada, (permanent) immigrants for employers often first work for Canadian employers on temporary visas, similar to the U.S. transition from H-1B status to an employment-based green card. The difference is that Canada awards points for age, language, schooling and work experience in Canada and grants permanent residence each year to those who achieve sufficient points. The system has evolved and been adjusted so that employers can retain highly skilled employees. Another key feature: Canada allows provinces to select immigrants based on unique regional needs, something U.S. point system advocates generally have not favored.

Finally, if members of Congress wanted to admit more immigrants with advanced degrees, they could have supported several proposals in 2021 and 2022 to boost the number of employment-based green cards and eliminate the per-country limit on such green cards to prevent decades-long delays for Indian immigrants.

Neither Tom Cotton nor any other Republican senator intervened before the CHIPS Act passed in 2022 to stop Sen. Charles Grassley (R-IA) from blocking measures to create an exemption to annual green card limits for foreign nationals with a Ph.D. in STEM [science, technology, engineering and math] fields and those with a master’s degree “in a critical industry.”

“The U.S. already has ‘merit-based’ immigration, in the form of a preference system for employment-based visas,” said Lynn Shotwell, an immigration expert and president/CEO of Worldwide ERC. “While current H-1B and green card numbers aren’t sufficient, employers don’t want a system that removes or limits their ability to hire or sponsor a specific individual, across the skill spectrum, or have the federal government set up a point criteria that may not be relevant to employer needs or keep up with changes in the economy.”

Sen. Cotton has argued that eliminating most family categories via the RAISE Act would raise worker wages. Economists would find this implausible. Giovanni Peri, economics chair at the University of California, Davis, concluded, “Decades of research have provided little support for the claim that immigrants depress wages by competing with native workers.”

Only about 25,000 or fewer people of working age with less than a high school degree immigrate annually in the categories critics have sought to eliminate (i.e., the siblings and unmarried and married adult children of U.S. citizens). Even if the consensus of economists was incorrect about immigrants’ lack of impact on native wages, it is not plausible that stopping 0.01% (25,000) of the 165 million U.S. labor force from entering the country—and living in different parts of the country—would have any impact on U.S. workers’ wages.

A higher annual level of immigration—four times higher than the United States as a percentage of its population—is a central feature of Canada’s immigration system. Analysts would find it unlikely that Sen. Cotton and other U.S. advocates of a Canadian-style point system will support admitting four times as many immigrants each year to the United States.

Source: U.S. Immigration Critics Ignore Canada’s Welcome Mat For Immigrants

Bad Russian Economy Provides Lessons For U.S. Trade And Immigration

Interesting take and effort to deploy the Russia example to influence US trade and immigration policy:

Russia’s economic problems caused by the sanctions imposed after its invasion of Ukraine provide lessons for U.S. trade and immigration policies. Blocking imports and new workers seem like good ideas to opponents of trade and immigration, but economists have found such policies harm consumers and damage the economy. The long-term impact of sanctions is a disaster for Russia from which American policymakers can learn.

Russian government officials have concluded (in private) that their economy is in trouble. “Russia may face a longer and deeper recession as the impact of U.S. and European sanctions spreads, handicapping sectors that the country has relied on for years to power its economy, according to an internal report prepared for the government,” reports Bloomberg, which viewed a draft of the report.

Losing Skilled People: “The report estimates as many as 200,000 IT [information technology] specialists may leave the country by 2025, the first official forecast of the widening brain drain,” according to Bloomberg. Russian economist Alexander Isakov has concluded, “With diminished access to Western technologies, a wave of foreign corporate divestment and demographic headwinds ahead, the country’s potential growth is set to shrink to 0.5%-1.0% in the next decade.”

Events in Russia raise obvious comparisons to problems facing the United States. Low numerical limits caused U.S. Citizenship and Immigration Services to reject about 400,000 (80% of) applicants for new H-1B petitions in April 2022. (Most H-1B professionals work in the technology fields.) Economists Giovanni Peri and Reem Zaiour found 2 million fewer working-age immigrants because of the pandemic and U.S. immigration policies during the Trump administration. The “immigration shortfall” has contributed to inflation, rising prices and an inability to fill job openings across the skill spectrum.

“The report on the Russian economy confirms what should be as obvious as the nose on one’s face, which is that highly educated immigrants promote the economic growth of any nation, including the United States,” said Randel Johnson, a visiting scholar at the Cornell Law School with years of experience on immigration policy in and out of government. “That the U.S. Congress has not yet acted on this fact by increasing the number of H-1B visas is nothing short of a travesty.”

Johnson notes U.S. problems go beyond tech talent. “The uncontested demographic projections of an aging workforce in the United States, as in Russia, threatens the viability of Social Security and shows we need to find a way to bring in more immigrants through an expanded legal flow of workers. That would allow America to meet the needs of its economy, particularly in the service industry, such as the healthcare sector, to address the needs of our growing numbers of seniors.”

Imports Are Vital: U.S. elected officials typically cite the benefits of exports when arguing for expanded trade or new trade agreements. During the Trump administration, levying costly tariffson imports became a priority, and the Biden administration has largely maintained those tariffs. Economists point out imports are vital to providing consumers with lower prices and a greater variety of goods while supplying companies with inputs needed to make products, including for export.

A Bank of Finland report on Russian foreign trade found, “Overall, our analysis implies that the war and sanctions will take an increasing toll on the Russian economy in the months ahead. The latest forecasts foresee a total decline of Russian GDP [gross domestic product] of roughly 10% in 2022 and 2023.”

Russian companies and consumers have found out the hard way just how vital and beneficial imports can be. “Western governments have made it compulsory for a range of domestic industries to seek licenses before selling to Russia, and they are rarely granted,” reports The Economist. “The restrictions go well beyond ‘dual-use’ products—those with both military and commercial applications, like drones and lasers—to cover advanced kit such as chips, computers, software and energy equipment. They also target low-tech goods, such as chemicals and commodities . . . That is bad news for the country’s manufacturing sector, which needs imported inputs.”

The Economist paints a bleak future for a Russia with fewer imports and high-skilled workers: “So long as America and its allies maintain their sanctions, Russia’s industrial backbone, intellectual brawn and international links will fade, and its future will be one of sagging productivity, little innovation and structural inflation. Economists were wrong to predict an instant crash. What Russia is getting, instead, is a one-way ticket to nowhere.”

Source: Bad Russian Economy Provides Lessons For U.S. Trade And Immigration

USA: What Happened To The Bills On Employment-Based Immigration?

Good but disconcerting recap:

The new Congress began with hope for a lasting solution to the employment-based green card backlog problem but may soon end with no solution at all. What happened?

Economists have found foreign-born scientists and engineers are vital to the competitiveness of companies in the United States and the American economy. “The ability to recruit global talent is a key factor that has contributed to U.S. leadership in science and research,” according to the MIT Science and Policy Review. “This talent has been vital for the development of U.S. science and responsible for numerous discoveries and innovations that have improved quality of life.” At U.S. universities, international students account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences as well as 50% to 70% in fields that include mathematics and materials sciences.

Due to a low annual limit on employment-based green cards and a per-country limit of 7% from a single country, the Congressional Research Service (CRS) estimates that more than 2 million peoplefrom India will be waiting in the U.S. employment-based immigrant backlog by 2030. Many foreign-born scientists and engineers will potentially wait decades before gaining permanent residence and a chance to become U.S. citizens. 

The impact on competitiveness is significant. At U.S. universities, Indian graduate students in science and engineering declined by nearly 40%, between 2016 and 2019, according to a National Foundation for American Policy (NFAP) analysis. “During the same period (2016 to 2019), Indian students attending Canadian colleges and universities increased 182%. The difference in enrollment trends is largely a result of it being much easier for Indian students to work after graduation and become permanent residents in Canada compared to the United States.” Chinese student interest in attending U.S. universities has also declined.

In February 2021, the U.S. Citizenship Act (H.R. 1177), developed by the Biden administration, was introduced in Congress. The bill contained many immigration provisions and would have put an end to the employment-based immigrant backlog within 10 years. It included a higher annual green card limit, eliminated the per-country limit, provided permanent residence for those waiting with an approved immigrant petition for 10 years and excluded dependents from being counted against the annual limit. (See here.) It also would have exempted individuals with Ph.D.s in STEM (science, technology, engineering and math) fields from numerical limits. 

Due to GOP opposition and the 60-vote filibuster threshold in the Senate, the U.S. Citizenship Act turned out to be a messaging or placeholder bill that did not move in Congress. To obtain green card relief, a different measure would need to become law.

The America COMPETES (CHIPS) Act

The best opportunity for employment-based immigration looked like legislation aimed at enhancing U.S. competitiveness in semiconductors. On February 4, 2022, the U.S. House of Representatives passed the America COMPETES Act 222 to 210. The bill contained several immigration provisions but garnered only one Republican vote. In June 2021, the Senate passed a similar billwithout any immigration measures.

The House bill created an exemption from annual green card limits and backlogs for foreign nationals with a Ph.D. in STEM fields and those with a master’s degree “in a critical industry,” such as semiconductors. The bill also included Rep. Zoe Lofgren’s (D-CA) LIKE Act to give foreign-born entrepreneurs an opportunity to earn lawful permanent residence. A recent NFAP report on immigrant founders of billion-dollar companies concluded many innovations only become useful through entrepreneurship.

During a House-Senate conference committee, Rep. Lofgren urged the Senate to accept the House’s immigrant measures. The Biden administration, businesses and universities wanted to see, at minimum, the exemption for individuals with Ph.D.s in STEM fields become law.

The exemption for STEM Ph.D.s was likely doomed the moment Senate Republican Leader Mitch McConnell (R-KY) appointed Sen. Charles Grassley (R-IA) to the bill’s conference committee. McConnell gave Grassley, the ranking Republican member on the Senate Judiciary Committee, a veto, in effect, over any immigration provision. Over several months, he exercised that veto and no group of Senate Republicans stepped forward to prevent it.

In June 2022, Grassley asserted he was against including immigration measures in a non-immigration bill. Critics pointed out Grassley had no problem, indeed lauded, including a restrictive measure on EB-5 immigrant investor visas in a non-immigration bill only a few months earlier (March 2022). It appeared evident that Grassley opposed any liberalization of U.S. immigration laws, no matter how beneficial economists and others believed a specific provision would be for the country and claimed a procedural reason.

Senate Democrats approached Grassley with iterations of the Ph.D. STEM provision, but he refused to budge, according to sources. He did not vote for final passage or the motion to proceed to the bill on the Senate floor (a 64 to 34 vote) but got his way on the legislation. The final bill included no measures to exempt Ph.D.s in STEM fields from green card limits or any other significant positive immigration provision. (The legislation was H.R. 4346, renamed the CHIPS Act of 2022.) 

letter (July 27, 2022) to House and Senate leaders from the chief human resource officers of leading semiconductor companies called on Congress to admit more high-tech talent: “We are writing to you about an underappreciated but vital issue for both our economy and national security interest: the need for more talented and highly skilled individuals to fill the immediate labor demand of the technology industry. Workers with advanced education and knowledge in cutting-edge technical areas, specifically in science, technology and engineering (STEM) fields, are the fuel that will propel our economy and country into the next industrial and technological era.”

Budget Reconciliation

Another legislative vehicle, a budget reconciliation bill, became law without any measures to relieve the green card backlog or make other positive immigration changes. For months, Democrats in Congress talked about using budget reconciliation to enact immigration reforms. The reconciliation process overcomes Senate filibuster rules by allowing passage with a simple majority. However, under Congressional rules, reconciliation can only include certain measures.

The Senate parliamentarian advised in late 2021 that including provisions to legalize undocumented immigrants in a budget reconciliation bill would violate Senate rules. Senate Democrats also gave green card backlog reduction language informally to the Senate parliamentarian, but she did not provide a ruling on it, according to a Congressional source.

Immigration reform supporters pointed to language recapturing unused employment-based green cards that became law in budget reconciliation in 2005. However, the Senate parliamentarian said, according to the Congressional source, that the earlier parliamentarian never approved that language and it was allowed because nobody at the time raised a budget point of order since the provision was supported on a bipartisan basis.

In that context, it becomes clearer why, at different times, Sen. Richard Durbin (D-IL) and Sen. Bob Menendez (D-NJ) threw cold water on the idea of including green card provisions in reconciliation. A Senate parliamentarian’s advice can be overcome by a vote but Sen. Durbin indicated getting all Senate Democrats to vote against a parliamentarian’s ruling on immigration was not “realistic.”

The issue appeared to be moot until Sen. Joe Manchin (D-WV) reached a deal with other Democrats and the reconciliation bill became the Inflation Reduction Act. The bill passed Congress without any green card measures. Senate Democrats voted against all amendments to the legislation, including those that would have restricted access to asylum via the public health measure Title 42. 

Based on Sen. Durbin’s earlier statement, it seems unlikely Sen. Manchin or Sen. Kyrsten Sinema (D-AZ) would have supported including green card recapture in the bill if, as appears probable, the current Senate parliamentarian advised the measure would violate budget reconciliation rules. Note also Senate Majority Leader Chuck Schumer (D-NY) adopted a strategy of zeroing out spending within the Judiciary Committee’s jurisdiction to force Republican amendments on immigration to meet a 60-vote margin for germaneness. (Title 42 did not fall within the Judiciary Committee’s jurisdiction.)

Other Legislation

Another legislative vehicle emerged due to international events. After Russia invaded Ukraine in February 2022, a weak point for the Putin regime was its ability (or inability) to keep high-skilled technical talent living and working inside Russia. Washington Post columnist Catherine Rampell recommended using legislation to “Drain Putin’s Brains.” 

In a letter to the House on April 28, 2022, the Biden administration provided legislative language on Russian scientists and engineers as part of the FY 2022 emergency supplemental funding for Ukraine. The language would have allowed Russians with a master’s or doctoral degree in a STEM field to obtain permanent residence (a green card) without a backlog or employer sponsorship. 

The emergency supplemental for Ukraine passed Congress without any non-spending measures, including the provision for Russian scientists and engineers.

In July 2022, hopes were high the FY 2023 defense authorization bill would include an amendment on green cards for individuals with Ph.D.s in science and engineering. In what has become a familiar story, it was not to be. 

“According to a Congressional source, the House Rules Committeedid not rule the amendment in order because the Congressional Budget Office (CBO) said the provision would cost $1 billion over 10 years,” as reported in July. “To address the issue and offset the cost, a $7,500 fee was added for the individuals who received permanent residence under the provision. However, the House Ways and Means Committee said the fee could not be included because it amounted to a tax and, therefore, violated Clause 5(a) of Rule 21 of the rules of the House of Representatives.” 

It is unclear how CBO determined the $1 billion cost and how advocates can address the issues raised by the CBO score in the future. There is no word about adding the provision to the Senate’s defense bill.

A few bills related to employment-based immigration remain in play in Congress. On June 7, 2022, H.R. 3648, the Eagle Act of 2022, was reported out of the House Judiciary Committee on a 22-14 vote. The bill would eliminate the per-country limit for employment-based immigrants, with a phase-in period. It also would add new restrictions and requirements on H-1B visas, raise the per-country limit on family applicants from 7% to 15%, provide protection to children from aging out on a parent’s application and allow for adjustment of status within two years of an approved employment petition. Individuals would receive work authorization and advance parole for travel purposes.

In the House defense authorization bill, an amendment was included by Rep. Deborah K. Ross (D-NC) and Rep. Mariannette Miller-Meeks (R-IA) to “protect dependent children of green card applicants and employment-based nonimmigrants who face deportation when they age out of dependent status,” reported Roll Call. Sen. Alex Padilla (D-CA) and Sen. Rand Paul (R-KY) introduced the America’s Children Act, the Senate companion. The measure in the defense authorization bill would need to pass in the Senate to become law. (See here for more on this issue.) Sen. Grassley said in an August 2022 town hall meeting the measure could be included in an omnibus or the defense bill “if we can get bipartisan agreement,” which is positive but short of a personal commitment to support the legislation.

In June 2022, in the House Appropriations Committee, an amendment was added to the House Homeland Security spending bill to provide relief for individuals waiting for green cards in the family and employment-based backlog. The amendment authorizes using unused green cards going back to 1992, per Bloomberg Government. “The language of the amendment (see here) . . . means tens of thousands of individuals waiting in the employment-based immigrant backlog would benefit, as well as individuals waiting in family backlogs,” as reported in this Forbes article in June.

The Senate Appropriations bill for FY 2023 for Homeland Security also contains green card measures for those waiting in family and employment backlogs. The House and Senate green card measures face significant obstacles since non-spending provisions face a high hurdle to remain in a spending bill.

Blocking High-Skilled Immigrants

House and Senate Democrats and the Biden administration have supported or proposed several bills and measures to reduce the employment-based green card backlogs and exempt highly skilled foreign nationals from immigration quotas. Senate Democrats did not sacrifice a chance to pass the CHIPS Act after Sen. Grassley opposed including a STEM Ph.D. exemption. 

Republicans in Congress in a position to influence legislative outcomes are now opposing any positive measures on legal immigration. As one executive of a leading technology company told me, “If there are people in Congress who aren’t going to support more green cards for Ph.D.s in STEM fields, what will they support?”

Source: What Happened To The Bills On Employment-Based Immigration?

New Clues On What Immigration Will Look Like In A Second Trump Term

Hopefully just a theoretical exercise:

What would it mean for U.S. immigration policy if, on January 20, 2025, Donald Trump was sworn in as president of the United States? Many people expect a crackdown on illegal immigration. However, recent clues and past actions indicate the more significant impact of a second Trump presidency would be on legal immigration, including the admission of refugees, family immigrants and high-skilled professionals.

Personnel Is Policy: “Former President Trump’s top allies are preparing to radically reshape the federal government if he is re-elected, purging potentially thousands of civil servants and filling career posts with loyalists to him and his ‘America First’ ideology . . . The heart of the plan is derived from an executive order known as “Schedule F,” according to Axios. The publication also reported American Moment, a pro-Trump group, wants to replace current federal workers with “applicants who want to cut not just illegal but also legal immigration into the U.S.”

It is easy to see how this would result in more restrictive immigration policies. After White House adviser Stephen Miller received pushback the first year he reduced the annual refugee cap, at least one career government employee was reassigned so the individual could not interfere in the future, according to Border Wars: Inside Trump’s Assault on Immigration by Julie Hirschfeld Davis and Michael D. Shear.

With the power to hire and fire civil servants, Trump officials could fill the federal government with anti-immigrant personnel. If immigrants, businesses and attorneys complain now about U.S. Citizenship and Immigration Services (USCIS), they should consider what agency processing would look like after an anti-immigrant litmus test is imposed on USCIS employees during a Trump-Miller second term.

Trump Likely To Fail Again To Reduce Illegal Immigration: In a second term, in the name of combating illegal immigration, Trump administration officials would attempt to enact nearly every restrictive immigration measure considered in recent years. This would include eliminating the practical ability to apply for asylum after crossing the southern border, building more of “the wall,” increasing the use of expedited removal and other policies.

Given that Donald Trump failed to reduce illegal immigration the first time around, there is no reason to believe similar policies would succeed if tried again. During the Trump administration, between FY 2016 and FY 2019, apprehensions at the Southwest border (a proxy for illegal entry) increasedfrom 408,870 to 851,508—a rise of more than 100 percent. While the Covid-19 pandemic caused apprehensions to decline for several months starting in March 2020, by August and September 2020, apprehensions had resumed at the approximate level of illegal entry seen during the same months in FY 2019. In short, Donald Trump’s policies failed to reduce illegal immigration and were enacted at a great human cost, particularly for parents and children separated at the border.

The Biden administration, in large measure, continued Trump’s border policies, namely Title 42, which allows individuals to be expelled without further processing. Title 42 is supposed to be a public health measure but has been used to prevent many people from applying for asylum. The policies have boosted Border Patrol apprehensions and encouraged people to enter unlawfully, often multiple times, likely making the border more problematic. A federal judge has ordered the Biden administration to keep Title 42 in place.

Department of Homeland Security reports show over the years tighter enforcement has significantly increased the number of immigrants who use human smugglers to cross the border (i.e., virtually everyone crossing now employs smugglers). The policies have also resulted in an increased loss of life. In July 2022, 53 immigrants suffocated inside a tractor-trailer in San Antonio.

Opposition To Legal Immigration: Ironically, the Trump administration is likely to try every measure to combat illegal entry but the one proven effective in reducing illegal entry: Making it easier to enter and work legally in the United States.

Research from the National Foundation for American Policy (NFAP) found that a significant increase in the lawful admission of farm workers during the 1950s under the Bracero Program dramatically reduced illegal entry to America. Based on apprehensions at the border, unlawful entry across the southwest border declined by 95% between 1953 and 1959, as farm workers entered legally in greater numbers.

Trump Immigration Policies Will Likely Decimate Long-Term U.S. Economic Growth: Labor force growth is a crucial part of economic growth, without which Americans grow poorer or see their standard of living stagnate.

Those who argued that Donald Trump was only concerned about limiting illegal immigration have a problem—it’s not true. Unlike any president before him, Trump made broad use of executive authority under section 212(f) to restrict legal immigration and suspend the entry of many categories of immigrants and temporary visa holders. In 2020, this prevented the entry of workers and professionals on temporary visas, and immigrants on family, employment-based and Diversity visas. He also set the lowest refugee admissions ceiling of any president.

Given another term, expect refugee admissions to be extremely low and for Trump to use section 212(f) to bypass Congress and block the entry of many immigrants and visa holders. The ban on immigration from a number of majority Muslim countries could return.

The impact of Trump’s policies would be devastating to the nation’s future economic growth. A National Foundation for American Policy analysis concluded if Trump’s policies had continued, legal immigration would have been reduced in half, and “average annual labor force growth would be approximately 59% lower than compared to a policy of no immigration reductions.”

In 2021 and 2022, America saw the negative results of Trump’s immigration policies, with an estimated 2 million immigrant workers missing from the U.S. labor force blamed for reducing U.S. economic output and contributing to inflation. Another four years of similar policies would likely produce more negative results, potentially longer term, if enacted by legislation.

Trump Likely To Push More International Students And High-Skilled Professionals Away From The U.S.:During the Trump administration, many international students diverted away from the United States, primarily to Canada, and employers saw denial rates for H-1B petitions skyrocket. Expect America to lose talent in even more significant numbers should the entire Trump immigration agenda against highly educated foreign nationals come to fruition.

Businesses and universities should expect every idea or regulation the Trump administration failed to implement to be tried again. That would mean:

– New limits on who qualifies for an H-1B petition and how (and where) an H-1B visa holder can work;

– Requiring employers to pay well above-market wages for H-1B visa holders and employees sponsored for permanent residence;

– New restrictions on international students and Optional Practical Training (OPT), and other policies.

There is no evidence such policies would help U.S. workers or American students—the evidence shows the opposite would be true. The harm to the U.S. economy and future innovation would be real.

Between 2017 and 2020, attorneys representing businesses, universities and immigrant rights organizations successfully blocked several Trump policies. That task would become much more difficult the second time around since former Trump officials would have learned from their mistakes and have a fresh four years to implement restrictive immigration policies.

What Would A Different Republican President Do? A different Republican president, such as Florida Governor Ron DeSantis, would likely adopt many of Trump’s policies on illegal immigration. However, DeSantis (or another Republican) might not allow Stephen Miller back in the White House. Without Miller, a different Republican president could adopt policies on legal immigration more consistent with the views of mainstream economists, particularly given the potential for Republican inroads with Asian and Latino voters.

New Limits On The Freedom Of Americans: Trump’s most significant policies will restrict legal immigration, which, economists note, will harm innovation and reduce economic growth in America. But the impact will be broader.

“An immigration restriction is a government ban on a wide variety of economic activities by natives,” according toeconomist Michael Clemens. By that standard, a second Trump term would mean less freedom for consumers who wish to enjoy products and services offered by immigrants, Americans who hope to sponsor family members and employers who want to hire foreign-born scientists and engineers to compete in the global economy.

Source: New Clues On What Immigration Will Look Like In A Second Trump Term

Immigration Critics Wrong: Fewer Visas Did Not Help U.S. Workers

Useful analysis of this natural experiment given US government policies remained largely unchanged:

The number of new foreign-born workers in the United States declined because of the Covid-19 pandemic, but U.S. workers were not better off, according to new research. That refutes a long-held anti-immigration argument and addresses a concern raised by some labor unions. Worker shortages, partly a result of restrictive immigration policies and made worse by the pandemic, have contributed to empty shelves in supermarkets, shorter hours in restaurants and elsewhere, and an inability for many companies to fill jobs and grow in the United States.

The research focused on H-1B visas for high-skilled foreign nationals, H-2B visas for nonagricultural seasonal workers, and J-1 visas for summer work travel. The focus is timely because some labor unions have argued against the Biden administration increasing by 20,000 the number of H-2B visas, even though such visas help reduce illegal entry and prevent at least some of the dangerous border crossings that cause hundreds of deaths annually, such as the recent drowning of a 7-year-old girl from Venezuela in the Rio Grande.

“The Covid-19 pandemic resulted in a sharp drop in international migration to the United States, but there is no evidence the entry of fewer foreign workers on temporary visas improved outcomes for U.S. workers,” concluded Madeline Zavodny, an economics professor at the University of North Florida and a former economist at the Federal Reserve Bank of Atlanta, in a new report for the National Foundation for American Policy (NFAP).

“The research examined labor markets where more temporary foreign workers were employed prior to the pandemic and found the drop in H-2B program admissions did not boost labor market opportunities for U.S. workers but rather, if anything, worsened them,” writes Zavodny. “The results also do not indicate gains for similar U.S. workers in labor markets that had relied more on the H-1B and J-1 visa programs. There is no evidence of improved labor market opportunities for U.S. workers in the leisure and hospitality sector during the summer months as a result of the virtual shutdown of the J-1 Summer Work Travel program.

“There is also no evidence of faster employment growth or lower unemployment rates for college graduate U.S. natives as a result of decreased admissions via the H-1B program. Instead, labor markets that had been more reliant on temporary foreign workers via the H-1B program before the pandemic appeared to have had more unfilled jobs during the pandemic. The large drop in new temporary foreign workers via the H-1B program thus does not appear to have led to better labor market outcomes for the U.S. natives who might compete with those workers for jobs.”

Among the findings of the report are new estimates that show the number of working-age migrants from abroad has declined:

·       “The U.S. received some 630,000 fewer working-age international migrants between mid-March 2020 and mid-March 2021 than at its peak during the corresponding period in 2014-2015, a drop of over 75% in inflows.

·       “Even if new arrivals in 2019-2021 had maintained just the average annual pace over 2010-2019, the U.S. would have received almost 600,000 more working-age international migrants than it actually did during that two-year period.

·       “The decrease in working-age international migrants was similar for migrants who had at least a bachelor’s degree and those who had at most a high school diploma, both down 75% in 2020-2021 from their peak year-to-year inflow during the previous decade.

·       “The number of J-1 exchange visitor visas issued plummeted from about 350,000 per fiscal year to about 100,000 in FY 2020 and a similar level in fiscal year (FY) 2021. The drop in the Summer Work Travel (SWT) program within that visa category was even more precipitous, falling from over 100,000 annually to under 5,000 in FY 2020.

·       “The number of H-1B specialty occupations visas issued fell from almost 190,000 in FY 2019 to about 125,000 in FY 2020 and under 62,000 in FY 2021.

·       “The number of H-2B non-agricultural worker visas issued fell by almost half in FY 2020 before returning to near its pre-pandemic level in FY 2021.”

Zavodny notes it is tempting to argue that some of the increase in labor market opportunities for workers is due to reduced international migration. “The analysis here gives little reason to believe any gains for U.S. workers are linked to lower admission of temporary foreign workers,” writes Zavodny. “The ongoing shortages of workers in many labor markets reflect U.S. employers’ need for additional workers from both domestic sources and abroad. The research also examines data on job postings and the results point to jobs, particularly highly skilled jobs, going unfilled when temporary foreign workers were unable to enter the country. The decrease in new temporary foreign workers in the U.S. as a result of the pandemic thus does not appear to have led to better labor market outcomes for U.S. natives but rather to jobs left unfilled.”

Immigration critics have insisted that fewer legal visas would translate into gains for U.S. workers. The Covid-19 pandemic created a natural experiment to test that proposition and found it to be untrue. The results show a simplistic, zero-sum argument that restricting the size of the labor force benefits U.S. workers is incorrect. Such an argument fails to take into account many factors, including the role played by capital and entrepreneurs in a market economy. Instead, imposing visa restrictions and having fewer available workers reduce economic growth and make it more difficult for businesses to expand and deliver products and services to Americans.

Source: Immigration Critics Wrong: Fewer Visas Did Not Help U.S. Workers

House Adds ‘Game-Changing’ Visas For Immigrant Startups And Ph.D.s

Significant if it passes and a measure that will reduce some of the advantages for Canadian immigration that were generated by the Trump administration’s restrictive policies:

The House Rules Committee has added a significant element missing from a Senate innovation bill—visas for people who will produce innovations. House Democrats addressed that oversight by adding two potentially game-changing measures for immigrant entrepreneurs and immigrants with Ph.D.s in STEM (science, technology, engineering and math) fields. If these measures become law, their impact could be far-reaching. (See sections 80301 to 80305 in the bill.)

Immigrant Startup Visa: The lack of a startup visa costs America talent, according to the National Security Commission on Artificial Intelligence. In its final report, the commission members said the absence of a startup visa places the United States at a disadvantage compared to other nations like Canada in retaining and attracting foreign-born entrepreneurs. Many innovations are realized through entrepreneurship, and, according to a 2018 National Foundation for American Policy (NFAP) analysis, more than half of the billion-dollar startups in the United States had at least one immigrant founder. The list included some of America’s most innovative companies, such as SpaceX, Stripe and Moderna.

On January 25, 2022, the House Rules Committee added Rep. Zoe Lofgren’s (D-CA) LIKE Act to the nearly 3,000-page America COMPETES Act (H.R. 4521). The bill creates a temporary visa for foreign-born entrepreneurs who qualify and, according to a summary, “Allows the founder to apply for and receive lawful permanent residence if the start-up entity meets certain additional benchmarks.”

An individual qualifies for a new temporary W visa for an initial three years if:

“(1) the alien possesses an ownership interest of not less than 10% in a start-up entity;

“(2) the alien will play a central and active role in the management or operations of the start-up entity;

“(3) the alien possesses the knowledge, skills, or experience to substantially assist the start-up entity with the growth and success of its business; and

“(4) during the 18-month period preceding the filing of the petition, the start-up entity received at least $250,000 in qualifying investments from one or more qualified investors; or at least $100,000 in qualifying government awards or grants.”

The bill allows for an extension of the W (temporary) status for an additional three years if the individual possesses at least a 5% ownership stake, will continue to play a “central and active role” in management or operations, has received at least $500,000 in “additional qualifying investments,” created “at least 5 qualified jobs” or “generated not less than $500,000 in annual revenue in the United States and averaged 20% in annual revenue growth.”

An entrepreneur in W status may adjust status to lawful permanent residence without being placed in a green card backlog (i.e., they are exempt from the numerical limit) if the individual has maintained W status, ownership interest in the startup and an active and central role in the company, and the startup has “created at least 10 qualified jobs and . . . has received not less than $1.25 million in qualifying investments . . . or generated not less than $1 million in annual revenue in the U.S. in the two-year period preceding the filing of the petition.”

The startup visa’s impact could be significant. The measure could create approximately 1 to 3 million jobs over a decade, depending on factors that include how government agencies administer the provision, according to an NFAP estimate of an earlier Lofgren startup visa bill.

“The National Venture Capital Association (NVCA) is excited to see the America COMPETES Act include a startup visa,” said Jeff Farrah of NVCA. “Immigrant entrepreneurs have created some of the most iconic American companies. But our immigration laws make it too hard for foreign-born entrepreneurs to launch new, high-growth companies in the U.S. A startup visa would provide a dedicated visa category that will allow the world’s best entrepreneurs to create the next generation of great companies that will ensure the United States remains the global leader in technology and innovation.” (See a startup visa coalition letter here.)

A Green Card Exemption For Ph.D.s: Another significant provision added to the House bill would exempt from annual green card limits individuals with Ph.D.s in STEM fields. That would allow U.S. employers to gain a significant competitive edge by offering the chance at permanent residence to outstanding researchers from around the world, including those early in their careers and engaging in cutting-edge work.

Under the bill, individuals can gain permanent residence without being placed in a green card backlog (or be subject to per-country limits) if they “have earned a doctoral degree in a program of study involving science, technology, engineering, or mathematics—from a qualified United States research institution; or from a foreign institution if such degree is the equivalent to a degree issued by a qualified United States research institution; and are seeking admission to engage in work in the United States in a field related to such degree.”

Analyzing a similar provision, an estimated 10,000 people a year could benefit from a measure limited to Ph.D.s in STEM fields from U.S. universities. However, since this new provision also allows for Ph.D.s from foreign universities, the annual number of potential beneficiaries could be higher. Moreover, the bill uses a broader definition of STEM.

The bill states, “The term ‘program of study involving science, technology, engineering, or mathematics’ means a field included in the Department of Education’s Classification of Instructional Programs taxonomy within the summary groups of agricultural sciences, natural resources and conservation, computer and information sciences and support services, engineering, biological and biomedical sciences, mathematics and statistics, military technologies, physical sciences, or medical residency and fellowship programs, or the summary group subsets of accounting and related services and taxation.”

The broader definition of STEM will carry several benefits. “The bill also expands the definition of STEM in sensible directions that include highly skilled and productive individuals in important industries,” noted Alex Nowrastesh of the Cato Institute. Attorney Greg Siskind said, “Including physicians who do residency and fellowships in the U.S. also has the added benefit of dramatically helping health care in the U.S. since MDs are one of the most backlogged occupations for green cards.”

An indirect benefit of the provision will be to help individuals waiting many years in employment-based green card backlogs even if they do not have a Ph.D. That is because individuals with Ph.D.s who previously would have used a green card number would now be exempt from the numerical limits.

“It is increasingly important that the U.S. be able to recruit foreign-trained Ph.D.s,” said Mark Regets, a senior fellow at the National Foundation for American Policy. “Not only do they link us to research being done abroad, but they are an increasing proportion of the total doctorate-level STEM talent in the world. It is not just China that has increased Ph.D. production, but many European and other developed countries as well.”

Postdoctoral researchers work at U.S. universities after completing their Ph.D.s and play a significant role in research in the United States. Approximately 56% of postdocs at U.S. universities are on temporary visas, with many in biological sciences, medical sciences and engineering. A large number of PhD.s with foreign degrees assist in research and development. The new measure would allow many more an opportunity to stay and contribute in the United States.

A great example of someone who could have benefited from a special green card provision for Ph.D.s is Katalin Karikó. She is credited with producing the underlying research breakthrough that made messenger RNA possible for vaccine use. That discovery likely already has saved hundreds of thousands of lives. Karikó earned her Ph.D. in Hungary and toiled for years in the United States, first as a postdoctoral researcher, before her work became recognized as life-saving.

The House is expected to vote on the bill as soon as next week. The legislation, including the new immigration provisions, would need to be reconciled with (and pass) the Senate and signed by the president to become law.

Helping America and its companies better compete for talent through startup visas and a clear path to U.S. permanent residence for the world’s top researchers might help a bill on innovation live up to its name.

Source: House Adds ‘Game-Changing’ Visas For Immigrant Startups And Ph.D.s

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.


H-1B Visa Denial Rates Plunge After Trump Immigration Policies End

Not surprising. Will see if this reverses some of the preference of some high skilled immigrants for Canada that emerged during the Trump years:

H-1B denial rates have returned to pre-Trump levels after court decisions and a legal settlement ended the Trump administration’s restrictive policies, according to a new report. The changes started in the fourth quarter of FY 2020, while Donald Trump was still president, following a legal settlement with the business group ITServe Alliance and judges declaring the Trump administration’s policies unlawful. The lower denial rates continued through FY 2021 because the Biden administration abided by the legal settlement and did not introduce new restrictions.

“The denial rate for new H-1B petitions for initial employment in FY 2021 dropped to 4%, far lower than the denial rate of 24% in FY 2018, 21% in FY 2019 and 13% in FY 2020,” according to a new report from the National Foundation for American Policy (NFAP). “The Trump administration managed to carry out what judges determined to be unlawful policies for nearly four years, and the policies imposed significant costs on employers, visa holders and the U.S. economy, likely contributing to more work and talent moving to other countries.”

H-1B petitions for “initial” employment are for new employment, normally a case for companies that counts against the H-1B annual limit. The FY 2020 denial rate would have been higher if not for the legal settlement. Court rulings also stopped U.S. Citizenship and Immigration Services (USCIS) from continuing to impose new restrictions on who qualified for an H-1B specialty occupation.

The low H-1B denial rates in FY 2021 show the Trump administration’s anti-immigration approach was an aberration. “NFAP found the denial rates in FY 2021 and FY 2015 to be similar for employers, meaning the Trump years were an aberration due to imposing restrictive policies that courts found to be unlawful,” according to the report. “For several companies, particularly those that provide information technology (IT) services or other business services to U.S. companies, the denial rate for H-1B petitions for initial employment was far lower in FY 2021 than in FY 2020.”

H-1B temporary visas typically are the only practical way for a high-skilled foreign national, including an international student, to work long-term in the United States and have an opportunity to become an employment-based immigrant and a U.S. citizen. Many founders of billion-dollar companies and individuals who created the vaccines and delivered medical care that has saved the lives of Americans during the pandemic have used H-1B visas and employment-based green cards, notes NFAP.

Among the findings in the NFAP analysis:

–     “The denial rate for H-1B petitions for continuing employment was 2% in FY 2021, much lower than the 12% denial rate in FY 2018 and FY 2019 and the lowest level since data on H-1B denial rates became available. H-1B petitions for ‘continuing’ employment are usually extensions for existing employees at the same company or an H-1B visa holder changing to a new employer. The denial rate for H-1B petitions for continuing employment was 7% in FY 2020 but would have been higher if not for the impact in the fourth quarter of the court decisions and the legal settlement. In recent history, the 7% denial rate was still high compared to the 3% denial rate for H-1B petitions for continuing employment each year between FY 2011 and FY 2015.

–     “Much of the increase in denials for continuing employment during the Trump administration was due to an October 2017 memo that instructed adjudicators to no longer ‘give deference to the findings of a previously approved petition.’ Many extensions of H-1B status were reviewed under a new, more restrictive standard based on policies that judges later determined to be unlawful. Employers and attorneys have credited USCIS Director Ur Jaddou and the Biden administration for rescinding the October 2017 memo.

–     Amazon had the most approved H-1B petitions for initial employment in FY 2021 with 6,182. Amazon also had the most new H-1B petitions approved in FY 2020. Infosys had the second most H-1B petitions in FY 2021 approved for initial employment (5,256), followed by TCS (3,063), Wipro (2,121) Cognizant (1,481), Google (1,453), IBM (1,402), HCL America (1,299) and Microsoft (1,240).

–     “Processing issues likely inflated the number of approved H-1B petitions for the top employers. In the USCIS data, H-1B petitions are counted in the fiscal year they are approved, not in the cap year the H-1B visa holder begins to work. NFAP determined approximately 18,000 more petitions were approved for initial employment in FY 2021 compared to FY 2020, possibly due to USCIS processing issues in FY 2020 caused by the pandemic and the higher denial rate in 2020. Another caveat to the numbers is that, according to attorneys, in FY 2019 and FY 2020 during the Trump administration, USCIS held or delayed H-1B applications for many IT services companies, which would have inflated the number of approved H-1B petitions for those companies in FY 2021.

–     “The top employers of approved H-1B petitions in FY 2021 were also among the fastest-growing employers of U.S. workers, providing evidence that companies that employ H-1B visa holders also seek out and employ U.S. workers in significant numbers. The information on the significant hiring of U.S. workers by employers of H-1B professionals helps demonstrate the fallacies of the zero-sum argument about high-skilled foreign nationals ‘taking’ American jobs, particularly since economists have found hiring high-skilled personnel complements other high-skilled jobs as well as other types of employment at a company and in the economy.

–     “At U.S. universities, only approximately 25% of the full-time graduate students in electrical engineering and computer and information sciences are U.S. students.”

Source: H-1B Visa Denial Rates Plunge After Trump Immigration Policies End

New Increase In H-1B Visa Fees Further Shatters ‘Cheap Labor’ Myth

Reality vs the rhetoric:

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, note analysts. That is the premise even though the key people behind the vaccines that saved the lives of many Americans from Covid-19 are former international students, H-1B visa holders and employment-based immigrants. Even some members of Congress sympathetic to refugees and individuals without legal status imply that it is a gift to business to allow companies to hire high-skilled foreign nationals and sponsor them for permanent residence.

In reality, coming to America as an international student and gaining H-1B status, or being hired directly on an H-1B visa, is just another way to pursue the American Dream. For many, it is a necessary step under the U.S. immigration system for an opportunity to stay permanently and start a career and family in America. A new House bill will make it more expensive for employers to file petitions for those pursuing those dreams.

Critics of H-1B visa holders do not mention the high fees required to file an H-1B petition or the large number of job openings in computer occupations. If the House reconciliation bill becomes law, filing an H-1B petition will become more expensive, further shattering what businesses and attorneys call the myth of H-1B visa holders as “cheap labor.”

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, note analysts. That is the premise even though the key people behind the vaccines that saved the lives of many Americans from Covid-19 are former international students, H-1B visa holders and employment-based immigrants. Even some members of Congress sympathetic to refugees and individuals without legal status imply that it is a gift to business to allow companies to hire high-skilled foreign nationals and sponsor them for permanent residence.

In reality, coming to America as an international student and gaining H-1B status, or being hired directly on an H-1B visa, is just another way to pursue the American Dream. For many, it is a necessary step under the U.S. immigration system for an opportunity to stay permanently and start a career and family in America. A new House bill will make it more expensive for employers to file petitions for those pursuing those dreams.

The most recent version of the House reconciliation bill, which is expected to be voted on soon, adds a supplemental fee of $500 to existing fees for H-1B petitions. This is one of several fee increases added to the bill after immigration measures passed the House Judiciary Committee in September 2021.

As detailed in a section-by-section summary released with the House bill’s text:

“Section 60004 provides that the fees collected under Subtitle A shall be deposited into the general fund of the Treasury and may not be waived. This section also establishes additional supplemental fees as follows

• $100 for certain family-sponsored immigrant visa petitions (Form I-130) 

• $800 for each employment-based immigrant visa petition (Form I-140) 

• $15,000 for each employment-based fifth preference petition (Form I-526) 

• $19 for each Form I-94/I-94W issued to nonimmigrants who enter the United States 

• $250 for each F-1 and M-1 nonimmigrant student and J-1 exchange visitor to be paid by the approved educational institution or designated exchange visitor program 

• $500 for each application to replace an LPR card that has expired or is expiring 

• $500 for each petition for E, H-1B, L, O, or P status (Form I-129) 

• $500 for each application to change or extend nonimmigrant status (Form I-539) 

• $500 for applications for employment authorization (Form I-765) filed by spouses of certain nonimmigrants, students seeking optional practical training, and applicants for adjustment of status 

• $75 for each approved nonimmigrant visa.”

With the fee increase, a company may spend as much as $31,800 for the cost of filing an initial H-1B petition (for three years) and an extension for an additional three years, based on a National Foundation for American Policy (NFAP) analysis of government fees and attorney costs. For an initial H-1B petition that would include a $460 application fee, the new $500 supplemental fee, attorney fees that range from $1,500 to $4,000, additional legal fees of $2,000 to $4,500 if there is a Request for Evidence, $1,500 for the scholarship and training fee ($750 for smaller employers), a $500 anti-fraud fee (on an initial petition), $2,500 for premium processing (not required but typically necessary), a $4,000 fee for certain employers with a higher proportion of H-1Bs in their workforce and $190 visa application fee.

An employer would need to pay most of the costs cited above again for an extension, while the cost to sponsor an H-1B professional for permanent residence would likely add another $10,000 to $15,000 or more.