USCIS’s Cuccinelli Boasts Of Increasing Immigration Bureaucracy

Not something to boast about, normally:

In a new press release, USCIS Acting Director Ken Cuccinelli boasted that the Trump administration has increased red tape and bureaucracy for U.S. companies. It’s the latest example of administration officials lauding efforts to make it more difficult for employers to obtain what economists often consider to be a company’s most valuable resource – talent.

Since 2017, Trump administration policies have focused on restricting the entry of immigrants and foreign nationals, including scientists and engineers. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019,” according to a National Foundation for American Policy analysis.

In addition, expensive and time-consuming Requests for Evidence (RFEs) reached an unprecedented level of 60% in the FY 2019 first quarter. The percentage of completed H-1B cases with a Request for Evidence has doubled between FY 2016 and FY 2019. Many companies have resorted to lawsuits in federal court against USCIS to gain approvals for employees they have identified as valuable.

However, Ken Cuccinelli and USCIS describe the increased bureaucracy facing businesses in positive terms and the fulfillment of a mission. “Consistent with President Trump’s call for enhanced vetting, USCIS plays a key role in safeguarding our nation’s immigration system and making sure that only those who are eligible for a benefit receive it,” according to the October 16, 2019, press release. “USCIS is vigorous in its efforts to detect and deter immigration fraud, using a variety of vetting and screening processes to confirm an applicant’s identity and eligibility. The agency also conducts site visits, interviews applicants, and requests evidence for benefits that offer individuals status in the United States.”

The meaning of the bureaucratic language used by USCIS is clear: USCIS has made it more difficult for employers to gain approval for high-skilled foreign nationals and others.

Here are examples of increased bureaucracy and added burdens on companies hiring foreign-born scientists and engineers:

•          Government documents reveal USCIS adjudicators were directed to restrict approvals of H-1B petitions without the legal or regulatory authority to justify those decisions. The documents became public following a Freedom of Information Act (FOIA) lawsuit filed by the American Immigration Lawyers Association.

•          A USCIS internal document – “H-1B RFE Standards” – encouraged adjudicators to demand more information of employers, leading to such requests being made in 40% to 60% of H-1B cases.

•          Another USCIS document changed the standard for what qualifies as a “specialty occupation” for an H-1B visa holder – without any change in the law or regulation. While initially used to deny H-1B status to computer programmers, this analysis explains that the USCIS document states the new USCIS policy is “Applicable to Many Occupations.”

•          USCIS adjudicators have taken the unusual step of approving H-1B status for periods of very short duration. In an ongoing court case, U.S. District Judge Rosemary M. Collyer cited the plaintiff’s example of USCIS granting one applicant an H-1B approval valid for only a single day – from February 1 to February 2, 2019. (See USCIS decision here.) Such actions force businesses to waste time and money filing repeatedly for the same employees.

•          A Trump administration decision to compel employment-based green card applicants to sit for in-person interviews contributed to “increased delays in the adjudication of employment-based benefits [that] undermined the ability of U.S. companies to hire and retain essential workers,” according to an American Immigration Lawyers Association report. It also caused increased backlogs in other types of applications.

•          USCIS now often requires – without a new law or regulation – a company to list every contract on which an H-1B visa holder will work during a three-year period to prove a “valid employer-employee relationship.” This was not done previously, and companies consider it unduly burdensome and out of touch with how businesses operate in a modern economy. The policy is a source of litigation.

•          USCIS also issued a memo instructing adjudicators to no longer defer to prior determinations when adjudicating extension applications for existing H-1B visa holders. That policy change has contributed to a significant increase in denials and Request for Evidence for continuing employment for H-1B petitions, resulting in a three-fold increase in the denial rate for companies trying to retain current H-1B employees between FY 2016 and FY 2019. Employees who spent years working in the United States have been forced to leave the country after being denied H-1B extensions.

“By increasing the many hoops and hurdles that employers and foreign-born workers must negotiate to work in the United States, USCIS is making it harder for American companies to recruit and retain global talent,” said attorney Vic Goel, managing partner of Goel & Anderson, in an interview. “It is doing this through trumped-up claims of increased workload and fraud referrals, when many of those challenges are the result of its own efforts to create more work for itself and further grow the immigration bureaucracy.”

The available U.S. domestic talent pool is limited in many key fields. Approximately 80% of full-time graduate students at U.S. universities in computer science and electrical engineering are international students who need a visa to work long-term in the United States.

Research by Britta Glennon, an assistant professor at the Wharton School of Business at the University of Pennsylvania, found the types of government restrictions applauded by the acting director of USCIS are not good for America. Glennon found H-1B visa restrictions carry the unintended consequence of pushing jobs outside the United States and lead to less innovation in America. “In short, restrictive H-1B policies could not only be exporting more jobs and businesses to countries like Canada, but they also could be making the U.S.’s innovative capacity fall behind,” concluded Glennon.

When USCIS Acting Director Ken Cuccinelli ran for and held public office in Virginia, he had the support of the Tea Party and advocated against overreaching federal bureaucracy, including by filing a lawsuit against the Environmental Protection Agency. As Bob Dylan once sang, “The times, they are a-changin.’”

Source: USCIS’s Cuccinelli Boasts Of Increasing Immigration Bureaucracy

Canada Wins Big From ‘America First’ Trade And Immigration Policies

His arguments on trade, given how China has retaliated against some of our agricultural exports but definitely on immigration, where there have been a series of reports of Canada becoming more attractive to those working in tech:

The theory behind the Trump administration’s “America First” trade and immigration restrictions is that they are good for America. However, after more than two and a half years it’s become clear the country such policies are helping is Canada, not the United States.

The Trump tariffs on China have turned into a boon for Canadian farmers. China stopped buying agricultural products from U.S. farmers to retaliate for the Trump administration imposing tariffs on imports from China. According to a U.S. Department of Agriculture report, “Canada’s share of total Chinese imports of wheat has rocketed above 60% in (Marketing Year) 2018/19, up from 32% in 2017/18, as U.S. wheat exports to China have plunged.”

“Losing the world’s most populous country as an export market has been a major blow to the [U.S.] agriculture industry,” reports the New York Times. “Total American agricultural exports to China were $24 billion in 2014 and fell to $9.1 billion last year, according to the American Farm Bureau.” U.S. exports of soybeans to China declined nearly 60% between 2018 and 2019, reports the U.S. Department of Agriculture.

A new study from the National Foundation for American Policy (NFAP) found the damage to exporters goes well beyond agriculture. “Retaliatory tariffs from foreign countries have significantly reduced U.S. exports,” according to economists David G. Tuerck, a professor of economics at Suffolk University and president of the Beacon Hill Institute, and William Burke, director of research at the Beacon Hill Institute, the authors of the NFAP report. “We estimate U.S. exports covered by retaliatory tariffs fell by $17 billion in 2018, and halfway through 2019, the loss to U.S. exports totaled $13.97 billion, for a combined total of $31 billion in lost exports.” And, they concluded, “The loss in U.S. exports will rise.”

U.S. exports of goods to China have declined 19% during the first 6 months of 2019 compared to the same period in 2018, according to an analysis of U.S. trade data. Therefore, it is not surprising that companies in other countries, such as Canada, are benefiting as U.S. companies lose opportunities to sell their goods.

Although the Trump administration recently delayed implementing some tariffs and China responded by canceling tariff increases it planned on U.S. pork and soybeans, former Chairman of the American Chamber of Commerce James Zimmerman in China told the Washington Post it was “not an incredibly significant” gesture. In response to a Donald Trump tweetabout China starting to buy “our agricultural products” again, Bloomberg’s Shawn Donnan noted, “Worth remembering: China bought a lot of agricultural products before this all started.”

The Trump tariffs have also harmed American consumers and inflicted high economic costs on the U.S. economy. “On an annual basis, when adding the tariffs in effect and the tariffs set to go into effect by the end of 2019, the tariffs . . . will cost the average household $2,031 per year, and will be recurring so long as the tariffs stay in effect,” write Tuerck and Burke, both research fellows at the National Foundation for American Policy.

Restrictive immigration policies, like protectionist trade policies, are also benefiting other nations, while harming the competitiveness of U.S. companies. By making it more difficult for international students to stay or work in America, the Trump administration has contributed to new international student enrollment at U.S. universities falling over 6% in the 2017/2018 academic year.

At the same time U.S. enrollment has declined, Canadian universities have attracted international students at record levels. The number of international students in Canada increased 20% in 2017 and 16% in 2018. Australia has also benefited from U.S. immigration restrictions, with Australian schools admitting many more international students, particularly from China. Australian exports to China are also up significantly, according to the Wall Street Journal.

H-1B petitions are typically the only practical way for an international student to work long-term in the United States, and denial rates on H-1Bs have increased to historic levels, according to National Foundation for American Policy research. Moreover, the Trump administration placed on its regulatory agenda a measure that would restrict or eliminate the ability of international students to work (on Optional Practical Training) following graduation, along with other policies that would make foreign students likely to think twice about choosing America as the place to launch their career.

In contrast, immigration policies in Canada have been aimed at attracting international students and retaining them after graduation. “International students who graduate from (at least) 2-year programs at Canadian colleges and universities, in any field, are eligible for 3-year open work permits,” Toronto-based immigration attorney Peter Rekai told me in an interview. “The knowledge that there is a clear ‘studies to work to permanent residence’ path has significantly increased the number of international students coming to Canada, with many choosing Canada over attending U.S. schools for this reason.”

The phrase “America First” carries negative historical connotations, most notably its association with policies of isolationism, laced with anti-Semitism, aimed at preventing the United States from fighting Nazi Germany’s attempt to conquer Europe. It also turns out, based on the results to date, America First trade and immigration policies are most likely to benefit countries other than the United States.

Source: Canada Wins Big From ‘America First’ Trade And Immigration Policies

New Details And Problems Emerge With Trump Immigration Plan

More commentary:

News coverage of the Trump administration’s immigration plan has focused on the introduction of a point system to the U.S. legal immigration system. However, a closer look and new details from the White House reveal major immigration policy changes many have overlooked. Most important is a set of policies that will not change at all, despite the plan’s focus on “high-skilled” immigrants.

On May 16, 2019, Donald Trump discussed his proposal for a new legal immigration system in a White House speech. The plan, which has yet to be turned into legislation, would replace all current family and employment-based immigration preference categories with a system that awards points based primarily on age and education.

Under current law, a U.S. citizen may sponsor for immigration a spouse, parent, minor or adult child or a sibling. Lawful permanent residents (green card holders) can sponsor a spouse, minor child or unmarried adult child. Employers can sponsor individual employees for immigration, often after undergoing labor certification (i.e., showing no U.S. workers were available for the position). Certain individuals may qualify to self-petition in the employment-based preferences without an employer sponsor. Most employer-sponsored immigrants are already working in the United States in H-1B temporary status.

The Trump speech and an additional document from the White House reveal and confirm four important policies.

The Administration Intends To Eliminate the Applications of More Than 4 Million People Waiting in the Current Family and Employment Backlogs. (See article here.) “Immigrants in the green card backlog would lose their place in line and would need to apply under the new point-based system,” according to an analysis from Berry Appleman & Leiden. “The White House has said people who are currently waiting for green cards will receive additional points, but no specifics have been released.” Donald Trump confirmed this in his May 16, 2019, speech, stating, “We will replace the existing green card categories with a new visa, the Build America visa.”

Individuals whose applications are eliminated must compete with each other and anyone else in the world who wants to apply in a given year for a green card in the United States, as discussed here. If 2 million or 3 million people apply in a year under the point system, those whose applications would be eliminated may not garner enough “points” to receive permanent residence under the new law, if the plan is approved by Congress. Needless to say, it is controversial to tell millions of people who have waited years in immigration backlogs that they have wasted their time.

Individuals Must Pass English Language and Civics Exams BeforeBecoming Permanent Residents. Under Section 312 of the Immigration and Nationality Act, to become a U.S. citizen, after living as a permanent resident for at least five years (three years for spouses of U.S. citizens), a person must demonstrate “1) an understanding of the English language, including an ability to read, write and speak words in ordinary usage . . . [and] 2) a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.”

The administration’s proposal takes a different approach. A documentreleased after the Trump speech states, “Before being able to apply, green card applicants must pass a U.S. civics exam and to demonstrate English proficiency.”

This new requirement would throw a wild card into the immigration process and, critics would note, seems designed to favor people from English-speaking countries at the expense of people from Latin America. And there may be other objections. “This proposal cheapens the value of citizenship,” said attorney Greg Siskind, a founding partner of Siskind Susser, in an interview. “If you require the English/civics knowledge just to get a green card and all you have left for citizenship is proving you’re not a criminal and have been in the U.S. for enough years, achieving that status is no longer really special.” Siskind thinks the requirement is a method to admit fewer immigrants to the United States. It remains unclear whether spouses of the principal applicants will need to pass an English and civics test as well.

From a practical business perspective, this new requirement would likely make it much more difficult to recruit someone who exhibits great talent and promise in a field but currently has weak English language skills. The requirement would remove from employers the ability to judge whether English language ability is important for the job. But the entire proposal could be read as indifferent to the needs of employers, since the plan ends employer sponsorship and companies are unlikely to know when the bill passes which, if any, current or future employees will gain enough points to remain with a business long-term in the United States.

A Lawful Permanent Resident Would No Longer Be Allowed To Sponsor a Spouse. Given that workers are human beings with emotions and personal lives, eliminating the ability of lawful permanent residents to sponsor a spouse (and not allowing U.S. citizens to sponsor their parents, under the proposal) would seem to many cruel and short-sighted. Under the administration’s plan if a single person gains permanent residence and then gets married, he or she cannot sponsor a spouse for immigration until after becoming a U.S. citizen. That could mean a couple being separated for 5 to 7 years, a major disincentive for highly skilled people to immigrate to or remain in the United States.

The Administration’s Crackdown on High-Skilled Immigration, Particularly H-1B Visa Holders and International Students, Will Continue. It seems ironic for the president to announce a proposal to attract more high-skilled foreign nationals to America when the focus of U.S. Citizenship and Immigration Services under the Trump administration has been to admit as few highly skilled people as possible. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019” under the Trump administration, according to a National Foundation for American Policy (NFAP) analysis.

During his May 16, 2019, speech, Donald Trump said, “Companies are moving offices to other countries because our immigration rules prevent them from retaining highly skilled and even, if I might, totally brilliant people.” But the reason companies are moving to other countries is the Trump administration’s restrictive policies on H-1B temporary visas, which the president did not disavow in his speech. Adding more employment-based green cards and eliminating the per-country limit would help but it is primarily the low annual level of H-1B visas and administration policies that are driving more companies to Canada and elsewhere.

In its just announced Spring 2019 regulatory agenda, the administration stated it would soon propose to eliminate the ability of the spouses of H-1B visa holders to work and tighten the rules still further on who qualifies for an H-1B visa. The administration also plans to propose regulations to make it more difficult for international students to stay in the United States and complete their programs. Higher fees for international students and employers of H-1B visa holders are also coming. If given a choice, rather than a new legislative plan, companies would prefer the administration simply stop doing what it has been doing on business immigration.

The White House immigration plan proposes to continue preventing many high-skilled foreign nationals from working in the United States on H-1B visas, eliminate the immigration applications of more than 4 million people waiting in family and employment backlogs, introduce extraneous green card requirements for workers and tell professionals who gain permanent residence they may need to wait 5 to 7 years before their spouse can live with them in America.

The White House argues, “A random unfair entry process hurts everyone.” Some may look at the president’s plan and agree.

Source: New Details And Problems Emerge With Trump Immigration Plan

Better Immigration Policies Would Help U.S. Tech Companies

Another American commentator effectively states a Canadian advantage:

Donald Trump recently declared that $60 billion in new tariffs against China would help U.S. technology companies preserve their intellectual property. Trade experts doubt compelling Americans to pay more for products imported from China will solve any problems. However, if the Trump administration wants to help U.S. tech companies, the solution isn’t to impose tariffs on Chinese imports but to enact better immigration policies.

For a U.S. technology company – and, really, almost any company today – the most important input is human capital. When companies make decisions on where to invest resources, the ability to hire a sufficient number of qualified workers in that location is paramount.

Restrictive immigration policies encourage U.S. companies to place more resources – and people – in foreign countries. Moreover, many U.S. companies contract out information technology and other services to focus on their core line of business. Burdensome policies, such as the Trump administration’s new third-party placement requirements, encourage more of those services to be delivered from outside the United States.

“Today, 81 percent of the full-time graduate students at U.S. universities in electrical engineering and 79 percent in computer science are international students,” according to a National Foundation for American Policy analysis. In other words, when U.S. companies recruit on college campuses they hire U.S. students, of course, but also find the vast majority of the graduate students in many key technical fields are foreign nationals who cannot work in America unless U.S. immigration rules are reasonable.

H-1B status is typically the only way a high-skilled foreign national or international student graduating from a U.S. university can work long-term in the United States. The wait for employment-based green cards often stretches to years, making them impractical to use for hiring most people. That means despite its limitations, H-1B visas are the key way U.S. companies employ high-skilled foreigners. Companies can transfer certain employees to the U.S. but they must have worked abroad for at least a year and gaining approvals even for those types of visas has become more difficult.

The first week of April is when employers file for H-1Bs – even though the start date for the professionals will not be until October, the beginning of the next fiscal year. This will be the 16thconsecutive year the supply of H-1Bs runs out, both the 65,000-annual limit and the additional 20,000 reserved for international students from U.S. graduate schools.

The reason H-1B visas run out each year is simple: The small annual limit of 65,000 (for an economy with over 160 million workers) was set back in 1990. Since then the World Wide Web, social media, smartphones, 3-D printing, and advances in biotech and other fields have fueled the demand for high-skilled technical labor. Most H-1B visa holders have earned a master’s degree or higher.

Trump administration officials have said America should shift to a “merit-based” immigration system but that is code for eliminating most family-sponsored immigration categories and reducing legal immigration, not admitting more high-skilled foreign nationals. In fact, since many family-sponsored individuals possess high levels of education, preventing them from immigrating to the United States would result in the admission of fewer highly educated immigrants.

When asked, immigration attorneys cannot name any policies the Trump administration has established or proposed to make it easier for high-skilled foreign nationals to work in or immigrate to the United States – and can talk for hours about all the new measures that have made life more difficult for immigrants and employers.

If the Trump administration wanted to make U.S. high tech companies more competitive in global markets, then here are the immigration policies it should enact:

First, on the legislative front, the administration should support H.R. 392, which eliminates the per-country limit that contributes to high-skilled immigrants from India waiting potentially decades to receive permanent residence. Congress should also raise the annual limit on employment-based green cards and add exemptions for individual with degrees in science, technology, engineering and math (STEM) and the dependents of employer-sponsored immigrants. The annual limit on H-1B visas should be raised substantially to reflect the demand for high-skilled labor in today’s modern economy.

Second, the administration should stop trying to repeal the worthwhile regulation that allows many spouses of H-1B visa holders to work in the United States. This 2015 regulation helps retain skilled workers and provides greater dignity to spouses, many of whom are well-educated women born in India. Immigration officials should also halt plans to eliminate or make unduly burdensome the ability of international students to work after graduation for 12 months on Optional Practical Training (OPT) or an additional 24 months for individuals in a STEM field. Another problematic administration policy is its plan to rescind a regulation that allows international entrepreneurs to remain in the U.S. after starting new job-creating businesses.

Third, the Trump administration should cease what attorneys and businesses view as an assault on the ability of companies to employ high-skilled foreign nationals in the United States. Over the past year, these measures have included immigration adjudicators demanding employers comply with many more Requests for Evidence and denying more H-1B applications; the administration telling adjudicators not to “defer to prior determinations,” including approvals or findings of facts, when renewing  an H-1B or other high-skilled visa (making denials more likely); the administration’s travel bans against individuals from Muslim-majority countries; and the effort by U.S. Citizenship and Immigration Services to battle against a common business practice whereby companies focus on core competencies and contract out other functions, sometimes resulting in workers performing some work on customer sites. (For a more complete list of administration actions look here and here.)

Already we can see a negative impact from administration policies. “The number of international students from India enrolled in graduate level programs in computer science and engineering declined by 21%, or 18,590 fewer graduate students, from 2016 to 2017,” a recent analysis of government data found. One plausible explanation for this drop is that highly educated foreign nationals no longer see America as the best place to build a career. And remember, unlike when a factory closes, U.S. companies don’t issue press releases every time they place more work in offices overseas in response to the U.S. government’s restrictions on immigration.

Observers believe administration policies directed against high-skilled foreign-born professionals and the companies that employ them are driven by a half-dozen or more appointees who share a common worldview. They have worked much of their careers to reduce the number of immigrants coming into the United States, regardless of skill level. Moreover, they possess little understanding of how labor markets function, particularly in today’s global economy, or simply ignore these realities.

There is not a fixed number of jobs in the United States. When immigrants fill jobs, they create more jobs through their consumer spending, investments and entrepreneurship. Their availability as workers can encourage additional investments.

If companies are not allowed to hire (or transfer) high-skilled foreign nationals in America, then these companies will hire and keep them outside the United States, taking many jobs and innovations with them to other countries. Pretending companies do not possess other options in the face of government restrictions is misguided.

For the good of the country, to set things on the right track on high-skilled immigration, there is a simple solution for Trump administration officials: Just do the opposite of everything they’ve done since taking office.

via Better Immigration Policies Would Help U.S. Tech Companies