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.


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.


Evidence Mounts That Reducing Immigration Harms America’s Economy

Some useful recent studies, particularly with respect to H1-B visas and skilled workers. Less convinced by some of the general demographic arguments, similar to those made in Canada by the Century Initiative and others. Shout-out to Canadian Darrell Bricker and John Ibbitson, authors of the book Empty Planet, making the same broader arguments (with some of the same fallacies):

Donald Trump’s immigration policies were harmful to America’s long-term economic future. That becomes clearer as one compares the Trump administration’s actions to the projected increase in the number of immigrants under recently introduced immigration legislation. The U.S. Citizenship Act, developed by the Biden administration, would aid long-term economic growth by increasing the number of legal immigrants by 28%. In contrast, Trump administration policies would have cut legal immigration in half. The immigration policy path America chooses in the long-term will make a significant impact on economic growth and future labor force growth, of which immigrants are a vital part.

Economic growth or growth in Gross Domestic Product (GDP) is necessary for a country’s inhabitants to improve their standard of living. “GDP growth [economic growth] is made up of growth in the workforce plus growth in labor productivity,” according to Robert S. Kaplan, president and CEO of the Federal Reserve Bank of Dallas. “Unless slower workforce growth is offset by improved productivity growth, U.S. GDP growth will slow.”

The Trump administration’s immigration policies harmed long-term economic growth by reducing labor force growth and potential productivity growth through restrictive policies.

High-skilled foreign nationals are important to productivity growth. Yet the Trump administration increased the denial rates of H-1B petitions, causing many long-time H-1B visa holders to leave the United States. The administration also blocked the entry of H-1B visa holders and published regulations that employers believed would make it nearly impossible for many foreign-born scientists and engineers to work in the United States.

“When we aggregate at the national level, inflows of foreign STEM [science, technology, engineering and math] workers explain between 30% and 50% of the aggregate productivity growth that took place in the United States between 1990 and 2010,” according to economists Giovanni Peri (UC, Davis), Kevin Shih (RPI) and Chad Sparber (Colgate University). Research by economist Britta Glennon found rather than saving jobs, H-1B restrictions “have the unintended consequence of encouraging firms to offshore jobs abroad.”

While the Biden-supported U.S. Citizenship Act may have a difficult time becoming law, it serves as a marker for changes to legal immigration by increasing both family and employment-based immigration. The bill would have a positive impact on labor force growth by raising immigration by 28% a year after a transition period.

“Increasing legal immigration by 28% a year would increase the average annual labor force growth in the United States by 23% over current U.S. projections, which would help economic growth and address a slower-growing U.S. workforce,” according to an analysis by the National Foundation for American Policy (NFAP). “The average annual labor force growth could be even more than 23% compared to a scenario of no immigration increases because the Bureau of Labor Statistics currently projects the U.S. labor force will grow by 800,000 a year, and that baseline growth may be lower after 2029 without the increase in immigration contained in the bill.”

“In contrast,” the analysis continues, “if the United States continued the Trump administration’s policies that administratively reduced legal immigration by approximately 49%, average annual labor force growth would be approximately 59% lower than compared to a policy of no immigration reductions, according to an NFAP analysis. Under policies that reduced legal immigration by half, in 40 years the United States would have only about 6 million more people in the labor force than it has today. Admitting fewer immigrants results in lower economic growth because labor force growth is an important element of economic growth and immigrants play a major part in both current and future labor force growth.”

A recent National Foundation for American Policy study by Madeline Zavodny, an economics professor at the University of North Florida, shows the positive impact of immigration.

“Analysis of U.S. Census Bureau data finds international migration was the only source of population growth in rural areas as a whole during most of the 2010s,” writes Zavodny. “International migration is strongly related to employment growth in both rural and metro counties. Each additional international migrant is associated with an additional 1.2 jobs in rural counties over 2010 to 2018. The estimate for rural areas suggests that international migration adds to total employment well beyond the jobs filled by international migrants. International migrants may have a larger impact on employment because of the jobs they fill. International migrants may work in jobs that otherwise would go unfilled by local residents and thereby enable businesses to expand.”

Due to declines in fertility, immigration keeps the United States from experiencing negative population growth, according to the U.S. Census Bureau.

New economic research finds that negative or falling population growth may yield harmful economic outcomes beyond slowing labor force growth. Fewer available minds may mean fewer solutions to our problems. What if the breakthrough advances in mRNA made by Katalin Karikó, an Hungarian-born immigrant to America, never happened or occurred years later because Karikó was never born? How would that have affected the development of vaccines and other potential solutions to medical problems?

In a recent paper, “The End of Economic Growth? Unintended Consequences of a Declining Population,” Charles I. Jones, a professor of economics at the Stanford Graduate School of Business, writes, “What happens to economic growth if population growth is negative? We show below—first in models with exogenous [external] population growth and then later in a model with endogenous (internal) fertility—that negative population growth can be particularly harmful.” He asks: “How do idea-based growth models behave when population declines?”

In sum, with fewer people, “knowledge and living standards stagnate.” Jones writes, “If knowledge were to depreciate at a constant exogenous [external] rate, it is easy to show in the simple models at the start of this paper that this would lead to declining living standards in the presence of negative population growth, an even more dire outcome.”

“We refer to this as the Empty Planet result,” writes Jones. “Economic growth stagnates as the stock of knowledge and living standards settle down to constant values.”

Immigration can prevent population decline in the United States and allow America to grow—if U.S. elected officials choose the right policies. “Among great powers, the coming population decline uniquely advantages the United States,” according to Darrell Bricker and John Ibbitson, authors of the book Empty Planet, the title to which Charles Jones referred. “For centuries, America has welcomed new arrivals, first from across the Atlantic, then the Pacific as well, and today from across the Rio Grande. Millions have happily plunged into the melting pot—America’s version of multiculturism—enriching both its economy and culture. Immigrants made the twentieth century the American century, and continued immigration will define the twenty-first as American as well.

“Unless. The suspicious, nativist, America First groundswell of recent years threatens to choke off the immigration tap that made America great by walling up the border between the United States and everywhere else. Under President Donald Trump, the federal government not only cracked down on illegal immigrants, it reduced legal admissions for skilled workers, a suicidal policy for the U.S. economy. If this change is permanent, if Americans out of senseless fear reject their immigrant tradition, turning their backs on the world, then the United States too will decline, in numbers and power and influence and wealth. This is the choice that every American must make: to support and open, inclusive, welcoming society, or to shut the door and wither in isolation.” It is a significant choice.

Source: Evidence Mounts That Reducing Immigration Harms America’s Economy

Illegal Immigration In America Has Continued To Decline

Useful context:

In a report that could provide context to most immigration news stories, new research reveals that the number of unauthorized immigrants has continued to decline in the United States. The unauthorized immigrant population fell to 10,350,000 in 2019, a decline of 12% since 2010. The approximately 10.4 million unauthorized immigrants represent about 3% of the total U.S. population. A majority have lived in the U.S. for more than a decade.

While Donald Trump railed against illegal immigration from Mexico, it turns out demographics and economic conditions in Mexico had already addressed the issue. “The undocumented population from Mexico declined so much in the past decade that its share dropped to less than half of the total population,” according to new research from Robert Warren, a demographer and senior visiting fellow at the Center for Migration Studies. “From 2010 to 2019, the undocumented population from Mexico declined by about 1.9 million, and the undocumented population from the rest of the world increased by about 500,000.”

Among the key findings in Warren’s report:

–        “The undocumented population continued to decline in 2019, falling by 215,000 compared to 2018; this population has declined by 1.4 million, or 12%, since 2010.”

–        “Return migration of undocumented residents to Mexico was principally responsible for the decline of almost 1.9 million in the total undocumented population from 2010 to 2019.”

–        “The undocumented populations from Central America and Asia increased at the same rate from 2010 to 2016. After 2016, the population from Asia stopped growing, and the population from Central America increased by about 200,000.”

–        “Since 2010, the undocumented population from Mexico has fallen from 6.6 million to 4.8 million, or by 28%.”

–        “In 2019, 42 states and Washington, DC, had fewer undocumented residents from Mexico than they had in 2010. The states with increases in undocumented persons from Mexico had small undocumented populations.” Between 2010 and 2019, the number of unauthorized immigrants from Mexico declined by 35% in California, 13% in Texas, 23% in Arizona, 41% in Illinois, 37% in Georgia and 27% in Florida.

However, news and politics are often dominated by the short-term, including what is happening at any moment on the U.S.-Mexico border.

Ali Noorani, president and CEO of the National Immigration Forum, believes a combination of people today are crossing the U.S.-Mexico border. “My sense is that we are talking about unaccompanied minors (UACs) presenting themselves for protection, families who were in Migrant Protection Protocols (MPP) in Mexico and are re-entering through the UNHCR (United Nations High Commissioner for Refugees) process, families with young children who Mexico will not take back (in particular those in south Texas) and the population of single adults by and large from Mexico who are entering, apprehended, expelled and who then try to enter again,” he said in an interview.

“Nothing at the border right now is a surprise,” said Noorani on Twitter. “Therefore, it should not escalate to a crisis. The Biden administration needs to put in place the infrastructure, logistics and processes to manage the border. A crisis is when Trump expelled thousands of migrant children back to Mexico, strong-armed/bribed unsafe countries to pretend to be safe countries, and forced thousands of families to wait in Mexico while eviscerating the immigration system.”

The current situation at the border could affect bills to legalize Dreamers and others in the United States, although Robert Warren found no evidence that Congress considering legalization affects migrant decisions to come to America.

“An important finding is that the comprehensive immigration reform bill, S. 744, passed by the U.S. Senate in June 2013, did not cause an increase in undocumented immigration from Mexico,” writes Warren. “Instead, return migration fell by about half during the period that the bill was under active consideration. The finding that proposed legalization programs do not increase undocumented migration provides support for legalization proposals forthcoming from the Biden administration.”

A letter (February 2, 2021) from legal, religious and humanitarian organizations urged President Biden to stop using the authority invoked by the Trump administration to expel people at the border without due process. “We write to urge your administration to immediately end the misuse of Title 42 public health authority to illegally and inhumanely expel asylum seekers and migrants at the border,” according to the letter from Human Rights First, America’s Voice, American Immigration Lawyers Association, Anti-Defamation League, Kids in Need of Defense (KIND) and other groups.

“Since March 2020, the Department of Homeland Security (DHS) has blocked and turned away people at the southern border, including asylum seekers and children, without access to the U.S. asylum system or preliminary protection screenings, sending them to persecution, torture and other serious danger in violation of U.S. refugee and anti-trafficking laws and treaty obligations. The Trump administration, for instance, expelled prominent Nicaraguan dissidents who had attempted to seek asylum in the United States, returning them to Nicaragua where authorities had detained and beaten them for their political activism. Your administration continues to block and expel people, including families with children, under the same policy.

“These expulsions are being carried out under orders that Trump Administration officials pressured the Centers for Disease Control and Prevention (CDC) to issue despite objections by senior CDCmedical experts. . . . During the presidential campaign, you committed to end inhumane Trump administration border policies, uphold U.S. laws and treaty obligations to protect refugees and immigrant children, and adopt COVID-19 measures based in science. For your actions to reflect those promises, your administration must end the misuse of Title 42 public health authority at the border, stop blocking and expelling people seeking U.S. humanitarian protections, ensure appropriate infrastructure and support for shelters and other border groups to assist asylum seekers, and allow these families, children and adults to pursue their requests while in safety, inside the United States.”

In addition to addressing humanitarian concerns, the solution to preventing most future illegal entry is to make it possible for individuals to apply to work legally in the United States at the types of jobs many would otherwise fill as unauthorized immigrants.

Fernando Castillo picks “oranges and other crops for Elkhorn Packing, a company that provides labor through H-2A visas . . . He heard about the program through his job back in Tamaulipas, Mexico. It’s a good way to make more money, he says.”

“‘Because here the salary is a bit more than over there, and to help the bosses,’ he says,” according to National Public Radio. “The bosses he’s referring to are his parents. The 29-year-old sends money to them and his siblings. ‘To buy food to buy whatever they need in Mexico. Because in that country the salary is not enough to do certain stuff,’ he says. ‘And the American money over there gives people better benefits.’”

Contrast Fernando Castillo, who had a legal work visa and happily sends money to his family, with the fate of Yesenia Magali Melendrez from Guatemala.

“Yesenia Magali Melendrez Cardona told her father she wanted to follow in his footsteps,” reported the Los Angeles Times. “He had made the trek from Guatemala to the U.S. 15 years earlier in search of a new life. In February, she left a job and her studies behind and headed north. Chiquimulilla, the town where she had spent her 23 years, had been ravaged by the pandemic. Unemployment was rising. The population was desperate. The streets were too dangerous to walk at night.

“On Tuesday, Yesenia found herself in a situation just as perilous as the one she had fled. A maroon Ford Expedition bore a suspected smuggler and 24 people racing toward what they hoped would be safety. Yesenia and her mother, Verlyn Cardona, were wedged in the back when it drove through a breach in the fence separating Mexico from California.

“It was broadsided in the Imperial County town of Holtville by a semi hauling two empty trailers. It came to a stop, windshield shattered, at the intersection of Highway 115 and Norrish Road.

“Seventeen passengers were ejected from the SUV. When Verlyn regained consciousness in the back of the crumpled vehicle, her daughter was sprawled across her legs. Dead.”

Many potential asylum seekers from Central America would welcome the security of a work visa.

“The best solution, as ever, is to reduce the incentive for people to come illegally by creating more ways to work legally in America,” wrote the Wall Street Journal in a December 2018 editorial. “Most migrants come to work, and at the current moment there are plenty of unfilled jobs for them. A guest-worker program would let migrants move back and forth legally, ebbing and flowing based on employer needs, while reducing the ability of gangs and smuggler ‘coyotes’ to exploit vulnerable migrants.”

Research from the National Foundation for American Policy found increasing the legal admission of farmworkers during the 1950s under the Bracero Program significantly reduced unlawful entry to America. Based on apprehensions at the border, illegal entry to the United States fell by 95% between 1953 and 1959, as farmworkers entered legally in larger numbers. Today, a greater ability to work in jobs in other sectors, particularly year-round, would be welcomed by migrants and employers.

Making it easier to work and apply for protection lawfully will save lives and address illegal immigration. The unauthorized immigrant population in the United States has declined by 12% since 2010. It’s a statistic that should crawl across the screen whenever immigration is discussed on TV—or in Congress.

Source: Illegal Immigration In America Has Continued To Decline

USA: Immigration Bill Shows Need To End Employment-Based Immigrant Backlog

Good backgrounder:

Without a change in immigration law, it will be sometime in the year 2216—195 years from now—when the last person born in India waiting today in the employment-based immigrant backlog is expected to receive a green card. Barring advances in human longevity, businesses and high-skilled foreign nationals must rely on Congress to solve this problem and enact reasonable policies to welcome highly skilled people who want to become Americans.

The Scope of the Problem: H-1B and L-1 (intracompany transferee) are temporary statuses, meaning if someone wishes to remain in the United States, they must obtain an employment-based immigrant visa (or green card) that grants permanent residence. However, there is far greater demand for high-skilled individuals than the limited number of employment-based green cards allotted by Congress.

Since 1990, when Congress set the annual limit on employment-based immigrants at 140,000 (and 65,000 H-1B temporary visas), changes in technology have accelerated the demand for high-skilled technical labor. Congress established the current employment-based limits before the internet became a part of daily life. It also predates the iPhone, the iPad, YouTube, e-commerce, Netflix, Google, cloud computing and thousands of innovative companies and technologies that have come into existence and fueled the demand for high-skilled labor.

U.S. businesses would still need more scientists and engineers to grow and innovate even if the number of Americans earning degrees in science and engineering had exploded—and it hasn’t.

Between 1995 and 2015, full-time U.S. graduate students in electrical engineering decreased by 17%. The number of full-time U.S. graduate students in computer science increased by 45% from 1995 to 2015, while international graduate students increased by over 480%. (H-1B visa fees paid by employers have funded approximately 100,000 college scholarships for U.S. students in science and engineering.)

As of March 2020, the backlog in EB-1, EB-2 and EB-3—the employment-based first, second and third preferences—was 915,497, according to the Congressional Research Service (CRS).

Without Congressional action, notes CRS, the problem will grow worse: “The total backlog for all three categories would increase from an estimated 915,497 individuals currently to an estimated 2,195,795 individuals by FY 2030.”

Let that number sink in: Within a decade, more than 2 million people will be waiting in line, most for many years or even decades, for employment-based green cards. And there are indications this underestimates the problem.

Table 1 shows that in FY 2018 only about 4,500 Indians obtained permanent residence in the employment-based second preference and fewer than 6,000 received green cards in the employment-based third preference. (The National Foundation for American Policy obtained the data via a Freedom of Information Act request.)

CRS estimates the annual demand for employment-based green cards in the three preference categories is 262,376 (including dependents). This is based on petitions U.S. Citizenship and Immigration Services (USCIS) approved in FY 2018. CRS explains the backlog grew because there is a “current limit of 120,120 green cards for the three employment-based immigration categories.”

Another problem is that Congress established a per-country limit of 7% for each country that burdens mainly potential employment-based immigrants from India but also affects people born in China and the Philippines. The law, in effect, gives the same number of green cards for employment to India as it does Iceland.

In the employment-based second preference (EB-2): “Under current law, and owing to a limited number of green card issuances, the current backlog of 568,414 Indian nationals would require an estimated 195 years to disappear,” according to CRS. David Bier of the Cato Institute predicts “about 186,038 Indian immigrants will die . . . before they receive green cards even if they could remain in line forever.”

“By FY 2030, [the] estimated wait time would more than double,” according to CRS. “Under S. 386, the estimated wait time for newly approved EB-2 petition holders would shrink to 17 years, and in FY 2030, the wait time would be 37 years, the same as for all other foreign nationals.”

S. 386 was a bill in the last Congress sponsored by Sen. Mike Lee (R-UT) that would have eliminated the per-country limit for employment-based immigrants. Rep. Zoe Lofgren (D-CA) wrote H.R. 1044 with Rep. Ken Buck (R-CO) and it passed the House in July 2019. The companion bill, S. 386, was blocked in the Senate for more than a year. It became a Christmas tree for extraneous immigration provisions. The Senate finally approved S. 386 near the end of the session but the House found the provisions to be objectionable and it did not become law. The bill would not have increased the number of employment-based green cards but would have reduced the wait times for those waiting the longest for permanent residence, particularly professionals from India.

Without any change in the law, CRS predicts: “Currently, new Indian beneficiaries entering the EB-3 [employment-based third preference] backlog can expect to wait 27 years before receiving a green card.” (The wait time would be much longer in the EB-2 category.)

Scientists and engineers waiting for their green cards may see their children who have lived in the United States for years be forced to leave the country when they “age out” of their place on a mother or father’s immigration application when reaching 21 years old. USCIS policies during the Trump administration caused many spouses of H-1B visa holders waiting for green cards to lose their work authorization due to long processing delays.

New Immigration Bill Would End the Employment-Based Backlog: The U.S. Citizenship Act, developed by the Biden administration, would eliminate the employment-based backlog within 10 years through various provisions, according to a National Foundation for American Policy (NFAP) analysis.

First, the bill would no longer count spouses and children toward the annual limit, which would approximately double the annual number of employment-based green cards. Second, the legislation increases the annual limit for family-sponsored immigrants and allows unused numbers from the family categories to be used by the employment categories. That means once the family backlog is eliminated, which NFAP predicts could happen within 5 or 6 years, backlog reduction in the employment-based categories would accelerate.

Third, the bill eliminates the per-country limit. Fourth, the legislation allows unused green cards from earlier years to be redirected to reduce family and employment backlogs.

The bill also contains a provision, which NFAP has recommended, to allow any individuals who wait at least 10 years with an approved immigrant petition to receive permanent residence without numerical limit. If Congress passed only this reform, it would help many people and bring certainty to otherwise interminable waits for many employment-based immigrants.

Related to the backlog, in its final days, the Trump administration published a final rule designed to price employment-based immigrants and H-1B visa holders out of the U.S. labor market. The regulation would boost required wages 23% to 41% depending on the occupation, according to an NFAP study. The regulation could block people waiting for green cards if the new required salary is too high for an employer to retain them in H-1B status. (Individuals can be extended in H-1B status while waiting for an employment-based green card.)

If the Biden administration keeps the rule, it would be a significant victory for former White House adviser Stephen Miller and opponents of immigration.

Numerous studies and private wage surveys show that there is no evidence high-skilled foreign nationals are paid less than comparable U.S. professionals. If employers were forced to pay high-skilled immigrants 41% more than comparable U.S. workers, one would expect critics would still claim the immigrants were paid less because that is typically the only argument put forward against high-skilled foreign nationals who work in America. Members of Congress are repeatedly told to believe the only value someone born in another country offers a U.S. business or the U.S. economy is a willingness to work for less money.

If we have learned one thing from the pandemic, it is how valuable immigrants are to America. Immigrants play key roles in the two companies responsible for the Covid-19 vaccines Americans are receiving to protect their lives. Moderna’s leaders, two cofounders and critical scientific personnel are immigrants, as are the chief executive (and chief science officer) of Pfizer and a key scientist (Katalin Karikó) who made a crucial breakthrough on messenger RNA,” as noted in a December 2020 article. Even the founders of Pfizer were immigrants.

“We have blown the opportunity to maximize the incredible high-skilled immigrants in this country,” said Sen. Kevin Cramer (R-ND) at a recent hearing. “The backlog of green cards is immoral to me.” Will this be the year moral outrage and economic sense lead to a solution for employment-based immigrants?

Source: Immigration Bill Shows Need To End Employment-Based Immigrant Backlog

Trump And Miller Left Biden With Unfinished Immigration Business

Of note:

Donald Trump, Stephen Miller and the rest of the Trump immigration squad left the Biden administration with a lot of unfinished business, only some of which has garnered newspaper headlines. The Biden administration has moved quickly on several high-profile issues, including protection for refugees and DACA (Deferred Action for Childhood Arrivals) recipients. However, the list of immigration issues that requires attention after four years is long. Below are some of the most significant issues.

Stephen Miller’s Department of Labor Rule: Jyoti Bansal came to America on an H-1B visa. “I waited seven years for my employment-based green card [due to the per-country limit] and I wanted to leave my job and start a new company but couldn’t,” Bansal told me in an interview. “What is most frustrating about the green card process is you have no control over a major part of your life.”

In the final days of Donald Trump’s term, as part of a longstanding goal to price out of the U.S. labor market employment-based immigrants, international students and H-1B visa holders, White House adviser Stephen Miller and other members of the Trump immigration team pushed through a final rule on wages from the Department of Labor (DOL). The rule would significantly boost the required minimum or “prevailing” wage employers must pay employment-based immigrants and H-1B visa holders by 24% to 40% across a range of occupations, according to an analysis by the National Foundation for American Policy.

If the DOL rule had been in effect years ago, Jyoti Bansal likely would never have been able to come to America, nor would the many people who played critical roles in developing the Covid-19 vaccines and came to (or remained in) America on H-1B visas and employment-based green cards.

In 2007, Bansal received an employment authorization document (EAD) as part of the green card process. He later left his employer and started AppDynamics. The company, which monitors websites for clients such as HBO, has grown to employ over 2,000 people and was valued at $3.7 billion when Cisco acquired it in 2017.

The DOL final rule cites Donald Trump’s anti-immigration “Buy American and Hire American” executive order for the regulation’s “justification,” its “need” and the “Objectives of and Legal Basis for the Final Rule.” However, on January 25, 2021, President Biden revoked Trump’s “Buy American and Hire American” executive order. In other words, the authority cited for the DOL final rule by Trump’s Department of Labor no longer exists. The nation’s leading anti-immigration group, which has called for a “permanent pause” on immigration to America, has praised the DOL rule. This should not be a difficult choice for the Biden administration on what to do with the rule.

An Agenda on International Students: It is too soon to expect a full agenda from the Biden administration on international students. Rescinding the DOL wage rule would help attract students, since the rule makes it far less likely international students could get a work visa or permanent residence in the United States. There are other pressing student issues.

First, processing delays in Optional Practical Training (OPT) have bedeviled international students, particularly at the Texas Service Center Lockbox. Without a receipt, students can lose their status. (Attorneys have reported some improvements.) The Biden administration disbanded a last-minute effort by the Trump administration to establish a new unit to go after international students working on OPT, which may facilitate more targeted enforcement against bad actors, rather than a generalized effort against all students working on OPT.

Second, the Trump administration’s student policies left in place from 2020 may need to be adapted to the current situation. “After a concerted advocacy effort by the higher education community, the U.S. Department of Homeland Security (DHS) stated that international students should ’continue to abide’ by emergency pandemic guidance that allows them to take all or some of their courses online,” according to a letter from the Presidents’ Alliance on Higher Education and Immigration to Immigration and Customs Enforcement (ICE). “We strongly support this guidance because without it, a large number of international students still in the United States during the pandemic would have had to take classes in person or leave–neither tenable as COVID cases rise and the pandemic is still prevalent.

“However, DHS has still not issued additional guidance that would allow all international students, including those who were not already enrolled during the initial COVID-19 outbreak in March 2020 but have since enrolled or who will enroll, to enter and remain in the United States. Current guidance stipulates that if a new international student’s courses are online, they are prohibited from entering the United States or must depart the country. This policy is a substantial problem for programs with students living in different time zones.”

Universities would like updates to the policy, including “explicitly allowing initial international students to enter the country, as well as permitting existing students to remain in the United States when enrolled in online-only courses (as opposed to currently only allowing students enrolled in hybrid courses to enter).”

A recent survey found that during Fall 2020, “new enrollment of international students physically in the United States declined by 72%,” more than the 43% drop in foreign enrollment overall because students started online overseas.

If the Biden administration is looking for policy suggestions for a broader agenda on international students, NAFSA: Association of International Educators has put one together. The recommendations include a series of administrative and legislative actions to “establish a welcoming environment for international students and scholars.”

The Spouses of H-1B Visa Holders and Long USCIS Processing Times for Work Authorization: The Trump administration was unsuccessful in its plans to rescind the Obama administration’s rule on H-4 EAD (employment authorization document). A lawsuit (Kolluri v. USCIS) credibly alleges that USCIS put in place an unnecessary biometrics requirement to prevent the applicants, mostly women from India, from working in the United States. The California Service Center is taking up to two years to process an extension for work authorization. Another lawsuit charges current USCIS policies make it “mathematically” impossible for the spouses to continue working because extension applications cannot be processed in time.

Startup Visas and the International Entrepreneur Rule: The Biden administration’s outline on immigration legislation did not include a startup visa that would allow foreign nationals to gain green cards after demonstrating they have started a business that creates a threshold number of jobs. Congress can add that to any proposal. In the meantime, the administration can revive the International Entrepreneur Rule.

A letter from a coalition that includes the National Venture Capital Association,, the Ewing Marion Kauffman Foundation, the National Immigration Forum and others asks DHS Secretary Alejandro N. Majorkas “to implement the International Entrepreneur Rule . . . . originally put in place at the end of the Obama Administration, would work similar to a Startup Visa by allowing world-class foreign entrepreneurs to launch high-growth companies in the United States by utilizing the parole authority of DHS.”

A new report from the Progressive Policy Institute finds implementing the International Entrepreneur Rule could lead to significant job creation. A study last year from the National Foundation for American Policy examined the international experience and concluded startup visas for foreign-born entrepreneurs can bring jobs and innovation to a country.

It may take years for the Biden administration to undo many of the immigration policies implemented over the last four years. Addressing some of the issues not making front-page news will improve the chances the effort will be successful.