Subject to the inevitable legal challenges and likely perverse effects:
The Trump administration announced significant changes on Tuesday to the H-1B visa program for high-skilled workers, substantially raising the wages that U.S. companies must pay foreign hires and narrowing eligibility criteria for applicants.
Top administration officials framed the changes as a way to protect American jobs during the coronavirus pandemic, even though the Trump administration first committed to overhauling the program in 2017 as part of its efforts to reduce the number of foreign citizens employed in the United States.
“With millions of Americans looking for work, and as the economy continues its recovery, immediate action is needed to guard against the risk lower-cost foreign labor can pose to the well-being of U.S. workers,” Patrick Pizzella, the deputy secretary of labor, told reporters on Tuesday.
The rules will directly affect foreign workers and employers, especially tech companies that have long supported the H-1B program and pushed hard for its expansion.
Kenneth T. Cuccinelli, the acting deputy secretary of homeland security, said he expected the changes to cut by one-third the number of petitions filed annually for the coveted visas.
The changes will be published this week as interim final rules, meaning that the agency believes it has “good cause” to claim exemption from the normal requirement to obtain feedback from the public before completing them.
Immigration lawyers and experts predicted that the changes would be swiftly challenged in court because they bypassed the normal regulatory process.
“The public hasn’t even seen these regulations yet and won’t have the usual opportunity to provide comments, as required by Congress,” said Doug Rand, a founder of Boundless Immigration, a technology company in Seattle that helps immigrants obtain green cards and citizenship. “Given the inevitability of court challenges, it seems like slim odds that these policies are built to last.”
The government issues 85,000 H-1B visas each year, often using a lottery to award them because the number of workers sought by companies almost always surpasses the number of available visas. Many workers are eventually sponsored by their employers for green cards to remain permanently in the United States.
Some critics suggested that the changes, which came less than a month before the election, were politically motivated.
“Why this, why now, and why is it an interim final rule?” said Theresa Cardinal Brown, the director of immigration and cross-border policy at the Bipartisan Policy Center. “There’s no estimate of the amount of jobs this would actually free up for U.S. workers. It’s a bank shot at best.”
The Labor Department rule, which takes effect upon publication, would increase wages across the board for foreign workers, based on surveys of salaries in each profession. Companies would have to pay entry-level workers in the program in the 45th percentile of their profession’s salary rather than the 17th percentile. Wages for higher-skilled workers would rise to the 95th percentile from the 67th percentile.
“It will also likely result in higher personnel costs for some employers,” according to the Labor Department rule. “The purpose of protecting U.S. workers outweighs such interests and justifies such increased costs,” the agency added.
But Stephen Yale-Loehr, a professor of immigration law at Cornell Law School, said the rule would have the opposite effect.Sign up to receive an email when we publish a new story about the2020 election.Sign Up
“By increasing the required wages, the new rules will harm all employers trying to hire foreign workers, but especially start-up companies and smaller firms who may not be able to meet the increased wage requirements,” he said.
The Department of Homeland Security’s rule, which takes effect in 60 days, would also tighten the eligibility for visa applicants. The rule would require the foreign workers to have a degree in the “specialty occupation” they apply for, rather than any college degree. Some would also need to show how their studies provided “a body of highly specialized knowledge” for a potential job in the United States.
The largest share of H-1B visa holders are employed by the tech sector, where they work as computer engineers and software developers. The visas are also issued to architects, accountants and physicians, among other professionals.
The rule will almost certainly have an adverse effect on rural hospitals and other health care providers that depend on a steady pipeline of physicians from abroad because they cannot attract enough American doctors, who generally prefer to practice in urban areas.
For example, instead of offering a minimum starting salary of $120,000 to $130,000, a clinic in northeastern Pennsylvania, which is considered an underserved area, would have to pay a foreign physician around $195,000 or $200,000.
“Entry-level doctors in rural areas will have to be offered experienced-level wages, which may be more than their supervisor is being paid,” said William A. Stock, an employment immigration lawyer in Philadelphia. “This will further restrict the supply of doctors willing to move to parts of rural America. It will put providers in a jam that they can’t afford to hire foreign-born doctors.”
The H-1B rule comes on the heels of a proclamation signed by President Trump in June that suspended an array of worker visasuntil at least Dec. 31. Groups representing thousands of businesses challenged that proclamation, which affected H-1Bs, H-2B seasonal work visas, L-1 visas for executives being transferred by companies and cultural-exchange J-1 visas, including au pairs.
The groups won a reprieve last week, when a federal judge ruledthat Mr. Trump had overstepped his authority in banning the visas.
“There must be some measure of constraint on presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power,” the judge said.
His order was at odds with an earlier decision by a federal judge in Washington, which ensured that an appeals court would make the ultimate determination.
But it immediately set aside the ban for companies that employed large numbers of foreign workers.
The Trump administration has proposed further slashing the number of refugees the United States accepts to a new record low in the coming year.
In a notice sent to Congress late Wednesday, just 34 minutes before a statutory deadline to do so, the administration said it intended to admit a maximum of 15,000 refugees in fiscal year 2021. That’s 3,000 fewer than the 18,000 ceiling the administration had set for fiscal year 2020, which expired at midnight Wednesday.
The proposal will now be reviewed by Congress, where there are strong objections to the cuts, but lawmakers will be largely powerless to force changes.
The more than 16.5% reduction was announced shortly after President Donald Trump vilified refugees as an unwanted burden at a campaign rally in Duluth, Minnesota, where he assailed his opponent, former Vice President Joe Biden. He claimed Biden wants to flood the state with foreigners.
“Biden will turn Minnesota into a refugee camp, and he said that — overwhelming public resources, overcrowding schools and inundating hospitals. You know that. It’s already there. It’s a disgrace what they’ve done to your state,” Trump told supporters.
Trump froze refugee admissions in March amid the coronavirus pandemic, citing a need to protect American jobs as fallout from the coronavirus crashed the economy.
Secretary of State Mike Pompeo said the administration is committed to the country’s history of leading the world in providing a safe place for refugees.
“We continue to be the single greatest contributor to the relief of humanitarian crisis all around the world, and we will continue to do so,” Pompeo told reporters in Rome on the sidelines of a conference on religious freedom organized by the U.S. Embassy. “Certainly so long as President Trump is in office, I can promise you this administration is deeply committed to that.”
But advocates say the government’s actions do not show that. Since taking office, Trump has slashed the number of refugees allowed into the country by more than 80%, reflecting his broader efforts to drastically reduce both legal and illegal immigration.
The U.S. allowed in just over 10,800 refugees — a little more than half of the 18,000 cap set by Trump for 2020 — before the State Department suspended the program because of the coronavirus.
The 18,000 cap was already the lowest in the history of the program. In addition, the State Department announced last week that it would no longer provide some statistical information on refugee resettlement, sparking more concerns.
Advocates say the Trump administration is dismantling a program that has long enjoyed bipartisan support and has been considered a model for protecting the world’s most vulnerable people.
Scores of resettlement offices have closed because of the drop in federal funding, which is tied to the number of refugees placed in the U.S.
And the damage is reverberating beyond American borders as other countries close their doors to refugees as well.
“We’re talking about tens of millions of desperate families with no place to go and having no hope for protection in the near term,” said Krish Vignarajah, president of the Lutheran Immigration and Refugee Service, a federally funded agency charged with resettling refugees in the United States.
Bisrat Sibhatu, an Eritrean refugee, does not want to think about the possibility of another year passing without reuniting with his wife.
For the past 2 1/2 years, he has called the caseworker who helped him resettle in Milwaukee every two weeks to inquire about the status of his wife’s refugee case.
The answer is always the same — nothing to report.
“My wife is always asking me: ‘Is there news?’” said Sibhatu, who talks to her daily over a messaging app. “It’s very tough. How would you feel if you were separated from your husband? It’s not easy. I don’t know what to say to her.”
He said the couple fled Eritrea’s authoritarian government and went to neighboring Ethiopia, which hosts more than 170,000 Eritrean refugees and asylum-seekers. Between 2017 and 2019, his wife, Ruta, was interviewed, vetted and approved to be admitted to the United States as a refugee. Then everything came to a halt.
Sibhatu, who works as a machine operator at a spa factory, sends her about $500 every month to cover her living expenses in Ethiopia.
“I worry about her, about her life,” Sibhatu said, noting Ethiopia’s spiraling violence and the pandemic. “But there is nothing we can do.”
He hopes his wife will be among the refugees who make it to the United States in 2021.
Deliberately or accidentally flawed? And as noted in the article, shift of Indian students from USA to Canada:
A controversial proposed regulation that critics say will discourage international students from coming to America relies on a flawed Department of Homeland Security (DHS) report on visa overstays, according to a new analysis. The new rule would require U.S. Citizenship and Immigration Services (USCIS) to adjudicate more than 300,000 new extension applications each year when it is unable to process filings in its current workload on time. The new regulation is the Trump administration’s latest assault on high-skilled foreign nationals and could produce long-term negative consequences for America’s role as a center for science and innovation.
On September 25, 2020, the Trump administration published a proposed regulation that would mandate F-1 students be admitted only for fixed terms, generally two- or four-year periods, rather than the long-standing “duration of status” that allows students to remain in the United States and continue their studies until completion. The rule has a 30-day comment period and includes a fixed period of admission for J (exchange visitors) and I (foreign media) visa holders. Given the controversy and likely number of comments, it may be difficult for administration officials to complete and publish a final rule in time if Donald Trump does not win reelection.
A Flawed DHS “Overstay” Report: “The DHS ‘overstay’ reports upon which the regulation relies are highly flawed for policymaking purposes and should not be the basis for rulemaking on international students,” concluded a new analysis from the National Foundation for American Policy. “Problems with DHS systems properly identifying individuals who changed status inside the U.S. or left the country is an issue the DHS regulation fails to acknowledge. An examination of Department of Homeland Security reports finds the overstay rate for F-1 international students is not an actual overstay rate but only an upper-bound estimate of individuals who DHS could not positively identify as leaving the United States.”
The analysis concludes there are significant flaws in using the DHS overstay reports for a new regulation: “Under the proposed rule, students born in countries that a recent DHS report finds have an overstay rate of 10% or higher would be limited (along with certain other students) to a fixed term of only two years. Other students would be limited to four years. An approved extension would be required to remain in the country. But the overstay rates contained in the DHS reports are inflated and do not actually measure overstay rates. ‘The DHS figures represent actual overstays plus arrivals whose departure could not be verified,’ according to demographer Robert Warren. ‘That is, they include both actual overstays and unrecorded departures.’” (Emphasis added.)
“The Department of Homeland Security is knowingly relying on flawed reports as a pretext for the overall policy in the rule and to limit the admission periods for students from specific countries,” according to the National Foundation for American Policy report. “With circular logic, the 10% overstay rate threshold contained in the proposed rule comes not from an immigration law but from a presidential memorandum on overstays issued on April 22, 2019, that uses the same flawed DHS overstay reports. Students from approximately 60 countries, including Vietnam and the Philippines, would be limited to two-year terms (with the possibility of extensions).
“Extensions might be difficult to obtain as the focus in the proposed rule has moved away from allowing students to make normal academic progress to an enforcement-default, note attorneys, with the only reasons cited to approve an extension for additional time are for a ‘compelling academic reason, documented medical illness or medical condition, or circumstance that was beyond the student’s control.’
“In its FY 2019 report, DHS emphasizes the ‘suspected in-country overstay’ rate, a lower rate for countries than the overall overstay rate. DHS understands the ‘suspected in-country overstay’ rate is also overstated and largely an issue of an ability (or inability) to match records, since the report shows the FY 2018 overstay rate dropped by half when examined 12 months later after allowing more time to verify records for departures and change of status.”
One of the best arguments against the rule is that an individual committed to disappearing into the country after failing to attend classes would already be flagged by the current SEVIS system or would not be worried about submitting an extension application. The rule would only affect students with a genuine interest in continuing to study in the United States.
Expensive and Time-Consuming Process for International Students: Economists know when you tax or increase the price of something, you get less of it. DHS estimates the cost of filing an extension application for many F-1 students will exceed $1,000. That includes the cost of students filling out applications and submitting biometrics at USCIS offices. (See this article for more details on the impact of the rule on students and universities.)
The proposed rule will act as a tax increase on international students, both in dollars and in potential opportunity costs should extensions not be approved. The proposed rules make it clear extension approvals will not be a foregone conclusion.
Relying on USCIS To Process More Than 300,000 New Applications a Year: DHS estimates the new policy would require USCIS, an agency seeking a bailout from Congress, to adjudicate 364,060 new extension requests annually by 2024 and 300,954 in 2025 and later years.
While DHS states in the proposed rule a student would remain in lawful status while waiting for a USCIS decision if an extension was timely filed, this ignores a critical problem: It will be too late for a student to make alternate academic plans if USCIS denies an extension. That would set the student back a year or more and generate the type of uncertainty that may dissuade people from studying in America.
Forcing Universities to Use E-Verify: There is little evidence U.S. universities are hotbeds of illegal immigration. Despite this, the Trump administration has used the proposed rule to compel all U.S. universities to use E-Verify. Any universities that do not sign up for E-Verify would be allowed to admit students for only two-year periods (with extensions available) under the pretext that DHS would be more likely to trust information from universities that sign up for the electronic employment verification system. Congress has never mandated all employers must use E-Verify.
DHS Admits the Rule Will Likely Reduce Enrollment and Make U.S. Universities Less Competitive: “The proposed rule may adversely affect U.S. competitiveness in the international market for nonimmigrant student enrollment and exchange visitor participation,” according to DHS. “Specifically, the proposed changes could decrease nonimmigrant student enrollments in the United States with corresponding increased enrollments in other English-speaking countries, notably in Canada, Australia, and the United Kingdom.” DHS notes that in other countries admission is “typically valid for the duration of the student’s course enrollment” and students are “not generally required to file” an extension application.
“The administration is knowingly relying on flawed reports as a pretext for its overall policy and to limit the admission periods for students from specific countries in the proposed rule,” concludes the National Foundation for American Policy report.
The new policy threatens America’s ability to attract international students due to the added costs and increased uncertainty foreign students would face under the proposed regulation. If foreign countries that compete with the United States for international students were to create a new way to discourage students from coming to America, this is the policy they would design.
Good analysis regarding the impact of the Trump administration. Last line captures is “his mere presence has created a social and political environment that is seen as unfriendly toward immigrants”:
For the second year in a row, the proportion of the U.S. population who are immigrants did not increase, according to new numbers from the Census Bureau’s American Community Survey (its annual “mini‐census”). This is the first time since the Great Recession that multiple years have passed consecutively with no increase.
The stall also defies Census Bureau 2016 projections which had predicted more than a million more immigrants by 2019, and the change had already placed America on pace to have the lowest growth in its immigrant share of any decade since the 1960s before COVID-19 drastically reduced both legal and illegal entries in 2020.
Figure 1 shows the immigrant share of the U.S. population from 2000 to 2019. The share increased by 1.5 percentage points from 2000 to 2007 before dipping in 2008 through 2009 as the housing bubble burst and employment fell. The share then rose again by 1.2 percentage points through 2017 to 13.7 percent where it has stayed during President Trump’s term in office. The Census Bureau in 2017 projected that by 2019, 13.9 percent of the U.S. population would be immigrants.
Figure 2 shows how the actual immigrant population is already down by over a million people relative to the Census Bureau’s 2016 projections. The Census Bureau guessed that the number of immigrants would increase from July 2017 to July 2019 by 1.4 million when, in fact, it increased by little more than 400,000. The Census Bureau’s estimate for the increase in 2017 was 96 percent accurate, but only about 28 percent accurate for 2018 and 2019.
The falloff in the last couple of years is attributable to strong declines from all regions of the world except Oceania. In particular, the European immigrant population fell by 150,000 from July 2017 to July 2019. Northern American immigrants outside of Latin America also declined in absolute numbers. The Asian population grew by almost 200,000 in 2 years as opposed to nearly 500,000 in a single year from 2016 to 2017. The African population grew by 71,554 in 2019, which was half the increase from 2016 to 2017. Latin American immigrants increased by 70,000—half the rate of increase from 2016 to 2017.
The broader historical perspective is key as well. The increase in the immigrant share of the population was the least since the 1960s when it declined. The growth was 0.8 percentage point from 2010 to 2019—less than half the growth from 2000 to 2010.
The change comes despite a wave of more than a million Mexican and Central American asylum seekers and undocumented border crossers in 2019—most of whom were not returned that year. The fact is that it’s lower legal immigration and more immigrants leaving that is driving the decreases in immigrant population growth in the United States. Figure 4 shows how the number of legal immigrants admitted to legal permanent residence from abroad has declined steadily under President Trump by 158,826. But this decrease is not enough to explain lower immigrant population growth. Many immigrants must also be choosing to abandon the United States, such as those caught in decades‐long green card backlogs.
In a normal environment, immigration should have increased when unemployment reached historic lows. But the president’s anti‐immigration policies made that impossible, increasing deportations and imposing many new regulations on legal immigration. But it could also be that his mere presence has created a social and political environment that is seen as unfriendly toward immigrants.
Posted given Canadian connection (Paul Alexander):
Michael Caputo, the top spokesperson for the Department of Health and Human Services and a longtime ally of President Trump’s, is taking a 60-day leave of absence after a social media tirade in which he falsely accused government scientists of engaging in “sedition.”
HHS announced the leave in a news release Wednesday, which said Caputo decided to take the two months off as the department’s assistant secretary for public affairs “to focus on his health and the well-being of his family.” In a statement, Caputo described the situation as a medical leave for “a lymphatic issue discovered last week.”
The leave of absence effectively removes Caputo from government operations through November’s election. The statement also announced that Paul Alexander, whom Caputo had brought in as a scientific adviser, would be leaving the department altogether.
Last week, Caputo came under fire after reports that he and Alexander sought to edit and delay public health reports from the Centers for Disease Control and Prevention. Emails from Alexander obtained by Politico complained to CDC Director Robert Redfield that the agency’s Morbidity and Mortality Weekly Report “hurt the President,” and described data-based publications on the risk of the coronavirus in children as “hit pieces on the administration” that undermined Trump’s school reopening plan. NPR has confirmed Politico’s reporting.
Regarding the reports of interference with the publication, “It’s very concerning, if people who are really motivated by politics and not by science and don’t have a scientific background are suddenly interfering,” said Erin Marcus, a physician at the University of Miami Health System and Public Voices fellow. “These actions have real effects on the health of our population and on our ability to function as physicians.”
In a Facebook Live video streamed on his personal page on Sunday, Caputo described a conspiracy in which policymakers, the media and “deep state” scientists are keeping Americans sick with COVID-19 to improve the Democrats’ chances of winning November’s presidential election. He accused “scientists who work for this government” of “sacrificing lives” for personal gain and of engaging in “sedition.”
His language echoed an Aug. 22 tweet from Trump accusing “the deep state, or whoever, over at the FDA” of deliberately delaying the recruitment of clinical trial participants for COVID-19 drugs and vaccines to hurt his chances of reelection. There is no credible evidence for these theories.
Caputo’s video, subsequently deleted, was first reported Monday by TheNew York Times. Clips from the video were later published by Yahoo News.
Caputo is a longtime Republican consultant who specializes in public relations. He joined HHS in mid-April at a time when the Trump administration was under heavy criticism over its handling of the pandemic. White House observersconsidered his appointment a move by the president to gain more control over the U.S. health department. In his five-month tenure as the top communications official, Caputo shaped messages from health agencies to align with the Trump administration’s political messaging in the heat of the COVID-19 pandemic.
Caputo is considered a Trump loyalist who was a communications director for Trump’s presidential campaign in 2016 — a role he resigned from after sending a public tweet celebrating Trump campaign manager Corey Lewandowski’s exit from the campaign.
While his social media tirade was highly unusual for a government spokesperson, Caputo promoted conspiracy theories about politics in Washington, D.C., before he joined the administration. In a March 13 episode of his former podcast Still Standing, first reported by Media Matters for America, he said Democrats wanted Americans to die from COVID-19 so they could unseat Trump in the next election. “How much does our economy have to die and how many Americans have to die for these Democrats to get what they want?” he asked rhetorically.
Caputo had previously been investigated over his ties to Russia, where he lived in the 1990s and was an adviser to the Russian government, during the Justice Department investigation into the 2016 presidential election campaign. In 2020, before joining the administration, Caputo released a book and a documentary called The Ukraine Hoax, pushing discredited claims that Ukraine’s government — and not Russia’s — had interfered with the 2016 U.S. presidential election.
Of note. Potential significant impact on Canadian refugee claimants should decision not be successfully appealed and Trump re-elected, as we saw in 2017:
A federal appeals court has upheld President Donald Trump’s decision to take away legal protections for 400,000 immigrants, who could be deported next year if he wins reelection — despite having put down roots in the US over years or even decades.
Citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan have been able to stay in the US through Temporary Protected Status (TPS), a protection typically offered to citizens of countries experiencing natural disasters or armed conflict that allows them to legally live and work in the US. Against the advice of senior State Department officials, Trump tried to end TPS for those countries starting in November 2017, arguing that conditions have improved enough that their citizens can now safely return.
A federal court decision had prevented Trump from proceeding to roll back those protections temporarily. But on Monday, a divided panel of judges at the Ninth Circuit lifted the lower court’s block, meaning that the administration could terminate TPS status for all countries but El Salvador on March 5, 2021 (Salvadorans would lose their status on November 5, 2021). After those dates, TPS recipients’ work permits will expire and they will lose their legal status, making them eligible for deportation.
Those affected could include roughly 130,000 essential workers, more than 10,000 of whom are in medical professions, and roughly 279,000 US-citizen children under age 18 who are living with TPS recipients and could be separated from their families if their relatives were deported.
Wilna Destin, a TPS recipient from Haiti who has lived in Florida for two decades and recently contracted Covid-19, said in a press call that the Ninth Circuit ruling represented just one in a series of challenges she has recently had to face.
“We have coronavirus, we have hurricane, and now this. For me, it’s another disaster,” she said.
The presidential election could decide what becomes of TPS holders
The fate of TPS holders hinges on the outcome of the presidential election this fall.
If former Vice President Joe Biden is elected, he has vowed to prevent TPS recipients from being sent back to countries that are unsafe and would pursue legislation providing a path to citizenship to those who have lived in the US for an “extended period of time and built lives in the US.” He would also try to expand TPS protections to Venezuelans fleeing their country’s present socioeconomic and political crisis.
If Trump wins, his administration could also decide not to move forward with ending TPS protections at any time. But what’s more likely is that Congress will face pressure to pass legislation offering permanent protections to TPS holders who have put down roots in the US, shielding them from deportation.
The Dream and Promise Act, which passed the House last year, would have made TPS holders who have lived in the US for three or more years eligible to apply for a green card and, eventually, US citizenship. It could serve as a template for further negotiations, though whether it will get any traction depends on the makeup of the next Congress.
In a second term, Trump could also move forward with his plan to terminate the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young immigrants who came to the US as children to live and work in the US legally. (The Supreme Court has temporarily prevented him from doing so, but his administration is laying the groundwork for him to try again and has refused to fully reinstate the program.)
“Temporary Protected Status is on the ballot in November,” Frank Sharry, the executive director of the immigrant advocacy group America’s Voice, said in a statement. “And if we do not remove Trump … we could see one of the largest mass deportations and family separation crises in American history.”
The Ninth Circuit ruled that no court has the authority to review the administration’s decision to terminate TPS, which it said is a matter of agency discretion. It also dismissed the ACLU’s argument that Trump’s decision to terminate TPS was motivated by racial animus toward nonwhite, non-European immigrants in violation of the Constitution’s guarantee that everyone receive equal protection under the law, regardless of race or national origin.
The ACLU’s Ahilan Arulanantham, who represented TPS holders at the Ninth Circuit, said in a press call that the organization will ask the full appeals court to review the case and, failing that, would seek review at the Supreme Court, potentially setting up another high-profile case challenging Trump’s immigration policy.
In the meantime, immigration advocates are waiting on the result of another lawsuit now before the Second Circuit concerning some 40,000 Haitian TPS recipients. If that court decides that the administration can’t terminate their TPS status, they could be spared termination of their status before next March.
More on the challenges that a possible Biden administration would face:
Democratic presidential nominee Joe Biden is pledging to dismantle the sweeping changes President Trump has made to the American immigration system, if he wins the White House in November.
But that’s easier said than done.
“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C.
“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.
“What the administration has sought to do is to simply turn off immigration and to do it unilaterally by presidential edict, without the approval of Congress or the consent of the American people,” says Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project. “That project should be reversed.”
That’s exactly what Biden pledges to do. His position paper on immigration — 51 bullet points that fill 22 pages — seeks to roll back Trump’s accomplishments, and re-enact Obama-era policies.
“If I’m elected president, we’re going to immediately end Trump’s assault on the dignity of immigrant communities. We’re going to restore our moral standing in the world and our historic role as a safe haven for refugees and asylum seekers,” Biden said in his acceptance speech at the virtual Democratic National Convention.
The former vice president has an exhaustive to-do list. Within his first 100 days, Biden says he would implement a wide range of policies: not another mile of border wall, no more separating families, no more prolonged detentions or deportations of peaceable, hardworking migrants.
Biden also says he would restore the asylum system and support alternatives to immigrant detention, such as case management, that allow an applicant to live and work in the community while their case works its way through the hearing process. Trump has derisively called this “catch and release.”
And Biden would fully reinstate DACA, which allows migrants brought to the U.S. illegally as children to live and work without fear of deportation.
But if he’s elected, Biden would face a host of obstacles that could slow his immigration counter-revolution.
First, there’s the specter of renewed chaos at the Southern border. Last year, groups as large as 1,000 Central Americans at a time waded across the Rio Grande into El Paso, Texas, to request asylum. The Border Patrol was overwhelmed, and ended up detaining families in primitive, unsanitary conditions. Immigration hawks are wary that Biden would throw open the gates again.
“They don’t want to create such a chaotic situation at the border by welcoming or incentivizing another massive influx from Central America,” says Jerry Kammer, who is affiliated with the Center for Immigration Studies, which favors restrictions on immigration.
Federal border officials are worried what would happen if Biden cancels bilateral agreements with Mexico that have dramatically slowed the migrant flow.
“If Mexico right now decided they weren’t going to continue to help us, people would start coming through like we saw in the caravans two springs ago. There’s no reason that it wouldn’t come back as bad as it was,” says Ron Vitiello, former deputy commissioner of U.S. Customs and Border Protection.
NPR asked a senior adviser to the Biden campaign what would happen if a new president gave migrants a green light. The advisor said they are cognizant of that “pull factor.”
In fact, the people most closely watching to see if Biden defeats Trump and reverses his immigration crackdown may be beyond U.S. borders.
Some 700 migrants languish in filthy tents pitched in a public park amid mud, rats and clouds of mosquitoes. The encampment is in Matamoros, just across the Rio Grande from Brownsville, Texas. They’re seeking asylum in the U.S., but stuck there under a Trump initiative known as Remain in Mexico.
“We place our hope in Joe Biden, who is the Democratic nominee, because he would treat the immigrants very differently than Trump has,” says Carla Garcia, speaking at her cluttered campsite. She and her 7-year-old son are seeking protection in the United States after fleeing criminal gangs in Honduras.
“We hope he wins and changes all of this that Trump has created,” Garcia says, motioning to the bedraggled camp. “This is discrimination and racism.”
For his part, the president is touting the success of Remain in Mexico, which the administration calls the Migrant Protection Protocols.
“We don’t want ’em here. We want ’em outside,” Trump told cheering supporters in Yuma, Ariz., last month. “We got sued all over the place, and we won. So now they don’t come into the United States. They can wait outside.”
While the president says he has single-handedly restored a broken immigration system, human rights advocates are appalled at what they call the cruelty of his policies. And immigrant advocates say they have high hopes that a new administration would rebuild the immigration system based on “American values.”
“There’s no doubt about it, this is a monumental challenge,” says Heidi Altman, director of policy for the National Immigrant Justice Center. “That means a complete and utter reorientation of the culture of the agencies that administer immigration law and policy in the United States.”
But that’s a tall order — and another obstacle Biden would face. Immigration agents have enjoyed extraordinary support from the White House over the past 45 months. The Trump administration has bragged about “unshackling” them to let them do their jobs more aggressively.
“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.”
For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month.
CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies.
NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.
A Biden presidency also would likely find itself skirmishing with conservative lawyers the way the Trump administration has been tied up in federal courts fighting immigrant advocates.
“If Biden is elected and his administration starts rescinding executive actions that Trump had firm legal authority to do, groups like us will sue. That is a fact,” says R.J. Hauman, head of government relations at the Federation for American Immigration Reform. “We did so under President Obama, and we’ll do so again.”
Finally, there’s the pandemic. An NPR/Ipsos poll shows that a majority of Americans support Trump’s decision to shut the nation’s borders to all types of immigrants to stop the spread of the coronavirus.
Biden has not said if he would reverse that order to reopen the borders and jump-start the asylum process, which has been suspended. So it’s anybody’s guess when the virus will subside and the nation can welcome immigrants again.
More useful background on the anti-immigration zealots:
An hour east of Hollywood, where America’s cultural fetish for stories of apocalypse and antiheroes is made, the Claremont Institute lies in a nondescript beige building in the Pomona Valley. Created in 1979 to educate a new generation of conservative leaders through the study and reinterpretation of the American founding, the think tank has long peddled dystopian delusions, including that the U.S. faces an existential threat from a “Third World” invasion; that diversity “dissolves” the country’s unity; and that the many-headed monster of “wokeness,” “identity politics,” and “multiculturalism” seeks to “destroy the American way of life.”
“The mission of the Claremont Institute is to save Western civilization,” buttoned-up president Ryan Williams, who has been with the institute since 2005, declares in a welcome video on the Claremont’s YouTube page. “We’ve always aimed high.”
The institute was founded by students of the political scientist Harry Jaffa, who in the 1960s helped radicalize the Republican Party through his participation in the presidential campaign of the right-wing zealot Barry Goldwater, writing the lines of his acceptance speech at the 1964 Republican National Convention: “Extremism in the defense of liberty is no vice.” Jaffa was a prolific author and scholar of Abraham Lincoln and other founders. He likened “political correctness” to Leninism and Stalinism.
The Claremont Institute, which has no affiliation with the Claremont colleges, publishes the Claremont Review of Books and awards fellowships to applicants interested in studying the Constitution, the Bill of Rights, and other founding documents. Last year, it awarded a fellowship to Jack Posobiec, a Pizzagate conspiracy theorist with ties to neo-fascist groups, according to the Southern Poverty Law Center. The institute teaches and publishes new takes on America’s founding that whitewash history, insisting that the country was never racist and that those who argue otherwise seek to annihilate the United States. The mission statement says it seeks to “restore the principles of the American Founding to their rightful, preeminent authority in our national life.” Its scholars launder white supremacist ideas through the language of heritage and the self-aware performance of erudition.
Most recently, Claremont Institute helped perpetuate the racist birther lie that Democratic vice presidential nominee Kamala Harris isn’t a legitimate American citizen. Senior fellow John C. Eastman wrote the debunkedarticle in Newsweekquestioning Harris’s citizenship with his tortured reading of the Constitution. The institute has long challenged birthright citizenship, which is enshrined in the Fourteenth Amendment. Newsweek editors have since apologized for the op-ed, albeit after saying it had “nothing to do with racist birtherism.” Notably, Newsweek opinion editor Josh Hammer is a former fellow of the institute. Trump refused to condemn the birther lie, calling Eastman “brilliant” and saying he won’t be “pursuing” the theory but adding, “You would’ve thought [Harris] would’ve been vetted by Sleepy Joe.”
It is no accident that the white supremacist fantasies buttressing Trump’s reelection campaign were born in Los Angeles County. The region gave us Trump’s chief advisor and top speechwriter, Stephen Miller, whose parents have donated to the Claremont Institute and whose indoctrination in white supremacist ideas I report on in my book Hatemonger: Stephen Miller, Donald Trump and the White Nationalist Agenda. Miller’s father Michael is a former Democrat who veered right in his politics after troubles with his real estate company led him to complain of the “ridiculous liberal elite” and their intrusion into his personal and business affairs, according to his brother-in-law David Glosser and others who knew him. He complained that universities were all controlled by left-wing extremists, a view espoused by the Claremont Institute.
California revealed the political utility of white fear for the state’s Republican Party in the ‘90s of Miller’s youth, when non-Hispanic white people became a minority in the state, triggering a backlash with bipartisan attacks on bilingual education, affirmative action and more. In 1994, deeply unpopular Republican Governor Pete Wilson won reelection by blaming all of the state’s problems on a migrant “invasion.” Proposition 187, launched that year in Orange County by people fearing a “Third World” takeover, targeted social services for undocumented migrants, including public school for migrant children. (The prop was later found unconstitutional).
In his 1996 book The Coming White Minority, Dale Maharidge—a professor of journalism at Columbia University—predicted of California: “The depth of white fear is underestimated … these anxieties will blow east like a bad Pacific storm as whites are outnumbered in other parts of the country.”
The wind that blew the white fear east came from think tanks like the Claremont Institute, the David Horowitz Freedom Center, and other groups funded by the Scaife Foundations that helped give white supremacist ideas a pseudo-intellectual air and an exciting cinematic veneer by casting them as the “light” side in a battle between light and dark forces. Located in Sherman Oaks, the David Horowitz Freedom Center is led by David Horowitz, Miller’s lifelong mentor, who says liberals pose “an existential threat” to the country because of their allyship with Muslims and others. Both the David Horowitz Freedom Center and the Claremont Institute co-sponsored an event this April to bring the Dutch politician and Islamophobe Geert Wilders to Chapman University and screen a film painting Muslims as a danger to civilization. Both think tanks deny the existence of systemic racism against dark-skinned people while at the same time arguing that multiculturalism is deadly to America. The Claremont Institute’s podcast cheekily debates the merits of eugenics, and features a clip from the band Imagine Dragons’ song “Monster”: “I’m taking a stand to escape what’s inside me: a monster, a monster…and it keeps getting stronger!”
Members of California’s far right seem to revel in their antihero status. When I visited the Claremont Institute last year, president Ryan Williams told me conservatives like him see human nature as fixed and flawed, unlike liberals who see it as “perfectible.” The policies they support reflect their pessimistic view of humankind. They see themselves as clear-eyed warriors in a dystopian drama, living out the white supremacist conspiracy theory that says brown and Black people are replacing whites and endangering civilization. This false notion of white genocide, or the “great replacement theory,” has motivated self-styled heroes to commit acts of white terrorism, such as the massacre of 23 people in El Paso, Texas, last summer.
California has also bred commentators such as Rush Limbaugh and Tucker Carlson, whose Hollywood-style apocalypse-mongering was noted with appreciation by the Claremont Institute: “[Republicans] would do well to follow Tucker Carlon’s lead. Night after night, in appropriately apocalyptic terms, Tucker explains the revolution,” the chairman of the Claremont Institute’s board, Thomas D. Klingenstein, told Orange County conservatives in August. Carlson has called himself a “libertarian right-winger,” which is how Miller identified in college.
In California, the myth of rugged, rigid, ruthless individualism that feeds right-wing libertarianism is trafficked like a drug alongside similarly addictive dystopian fantasies that inflate self-importance. Miller recently tried to justify the use of federal forces to crack down on antiracist protesters by telling Carlson on his show, “This is about the survival of this country and we will not back down.”
California conservatives like Miller and Tucker Carlson have mastered the art of conflating people of color and their allies with welfare-guzzling criminals: dog whistling, demonizing, and declaring doomsday in response to anything threatening the dominance of white men. The birther lie attacking Senator Harris is rooted in apocalyptic racism, as is Trump’s immigration agenda.
Miller’s immigration policies come from the Federation for American Immigration Reform (FAIR), an anti-immigration think tank created by John Tanton, a white nationalist who believed in population control for non-white people and led successful efforts in California to mandate English as the official language. Tanton, who passed away in 2019, sought to coordinate attacks on affirmative action with Frederick R. Lynch, whose article “Immigration Nightmares,” was published by the Claremont Review of Books in 2003, arguing that California was turning into “Mexifornia.” Tanton also published an English translation of a novel about the destruction of the white world by subhuman brown refugees, The Camp of the Saints, which spoke to Miller and which he promoted through Breitbart in 2015.
It’s important to connect the dots between the White House and California’s long legacy of white supremacy to demonstrate that Trumpism is not an aberration but rather the culmination of long-fueled politics of hate. In 1991, when Miller was five years old in his home city of Santa Monica in 1991, hundreds of families with Hispanic surnames received a letter in their mailboxes that appeared to be from the Santa Monica-Malibu Unified School District headquarters. It featured the district’s bulk-mail permit number and address labels. Inside was a typed, one-page hate screed. The author said Mexicans were making the community unsafe and using up welfare. It called Mexicans “brown animals” and read: “We’ll gas you like Hitler gassed the Jews.”
The screed denied the existence of racism among white people and accused Mexicans of being “the real racists.” It singled out Mexican American Santa Monica High School alumnus Oscar de la Torre, alleging that he had been elected student body president the previous year because he was Mexican. “Why should there be a double standard for these wild beasts?” the letter asked. It called for a boycott of Mexican celebrations such as Cinco de Mayo, and of the student group MEChA, the Chicano Student Movement of Aztlán. The letter said Mexicans “infest our community with gays and lesbians.” It encouraged them to put on bulletproof vests and get ready for the gun battle.
De la Torre was 19 at the time, and his family received the screed under the letterhead of a “Samohi Assn. for the Advancement of Conservative White Americans” (Samohi is a nickname for Santa Monica High School). De la Torre called for an investigation of the hate crime. Police said they suspected someone in the school was responsible, but the crime remains unsolved three decades later. A public records request turned up a single police report. In an interview last year, de la Torre told me the lack of a resolution is indicative of how Santa Monica leaders felt, and feel, about racism. “Put it under the rug, let’s not talk about it,” he says.
In 2001, ten years after the letter was distributed, de la Torre was a counselor at Samohi and co-chaired a committee on equality. Stephen Miller, then a teenager, showed up to one of the first meetings. “Racism does not exist,” de la Torre says Miller told him. According to de la Torre, Miller also said the school was excusing black and Hispanic misbehavior by holding those students to a lower standard. Miller became a regular at the meetings, arguing against bilingual education, Spanish-language announcements, and multicultural activities such as Cinco de Mayo celebrations. He reportedly said the club for gay people was ruining the school.
It didn’t escape de la Torre that Miller’s rhetoric echoed that 1991 hate letter. Miller came to personify the nameless author who had haunted de la Torre for years.
“Stephen Miller did not invent that ideology,” he says. “He learned it from somewhere. And the person who wrote that letter also learned it. These feelings that divide our country, they exist, they can morph, they can grow.”
The Trump administration has radically restricted immigration to the United States through administrative actions and executive orders, according to a leading immigration scholar. Ira Kurzban, author of the 2,650-page Kurzban’s Immigration Law Sourcebook, 17th edition, has documented the changes made since Donald Trump took office. To better understand the changes, I interviewed Kurzban about what his research revealed.
Stuart Anderson: How is a book of this size meant to be used?
Ira Kurzban: As the title implies, it is a sourcebook and should be used as the first place a lawyer, scholar, member of Congress, or someone just interested in immigration issues may go to find answers about a particular topic concerning immigration law. Immigration law inevitably intersects with constitutional law, international law, criminal law, family law, employment law, contract and tort law, and virtually every other area of practice. The Sourcebook will get you to those areas of the law as they relate to immigration.
If you are interested in learning about any area within immigration law, the book includes business, family, asylum, deportation, detention, citizenship, litigation, workers’ rights and employers’ obligations and all other areas of immigration law. It is all there. It is the place to start research in any area of immigration law that you need to investigate.
Anderson: What surprised you the most in conducting research for the book?
Kurzban: I was most surprised at how sweeping the changes in immigration law have been. The transformation of immigration law was shocking and Covid-19 has accelerated those changes in the law of asylum, relief in deportation proceedings, family and employment-based permanent immigration, and the treatment of nonimmigrants, including students, exchange scholars, multinational executives and high skilled workers. The book, in painstaking detail, covers all of those changes through July 2020.
Anderson: Is it accurate to say the Trump administration has made significant changes to the U.S. immigration system with little or no legislation passing Congress?
Kurzban: After Trump won the election, he held meetings at Trump Tower with Kris Kobach, Stephen Miller and others who sought to transform and some might say disfigure immigration law. In the earliest days of the Trump administration they announced a plan to develop a highly restrictive immigration policy with a narrow point system that would designate few entrants into the country. They have executed that plan in a manner that few could have imagined.
Without any new legislation, but with a complete understanding of how the immigration bureaucracy operates, they have been able to radically restrict immigration and immigration law through presidential proclamations and executive orders, and by using policy manuals, websites, forms, procedures and regulations. In essence, they have ground immigration to a halt with massive backlogs and they have reoriented the immigration field to be almost exclusively the province of enforcement agencies at the cost of granting few immigration benefits, including residency and citizenship.
They created a system of an outer wall preventing people from entering the United States, a physical wall as a barrier to entry and an “inner” wall shutting down most lawful immigration through endless investigations, interrogations and denial of benefits. At the same time, they have sought to deport massive numbers of people, and today there are over 1 million people waiting for removal proceedings.
Anderson: What executive branch authorities have been the most important to the Trump administration’s efforts to change the immigration system?
Kurzban: Presidential proclamations and executive orders have played a key role in shutting down migration to the United States. Although these orders are temporary, Trump has continued to extend them. For example, we have a “Muslim ban” that was supposed to be for 90 days and is now in its fourth year. The most recent presidential proclamation banning most lawful permanent immigration to the United States, which was supposed to be in effect for 60 days, has now been extended to December 31, 2020, and is likely to be extended indefinitely if Trump is reelected.
Similarly, the administration has used every lever of executive authority to shut down immigration in the U.S. by establishing discretionary reasons for denying otherwise eligible applicants and by creating regulations that allow them to deny applications with impunity. By prioritizing investigations over examinations, they have ground benefit adjudications to a halt, leaving over three-quarters of a million citizenship applications and a similar amount of employment authorizations on the table without adjudication.
They have also ended asylum law as we know it by refusing to adjudicate hundreds of thousands of refugee and asylum applications that are pending, cutting refugee admissions to 18,000 with a threat to go to zero, ending virtually all forms of parole into the United States, restricting the standards for asylum and employment authorization for asylees, ending most Temporary Protected Status programs and weaponizing Covid-19 to shut the southern border in violation of the Refugee Act, the Trafficking Victims Protection Act and our international commitments under the Protocol Relating to the Status of Refugees.
Anderson: Given the past four years of the Trump administration, what reforms or changes in immigration law or policy would you like to see?
Kurzban: I believe we need to have a much broader vision, consistent with our heritage, economy and values, that recognizes the positive aspects of immigration. While the current administration has tried to demonize and denigrate immigrants, we have a long and beautiful tradition of welcoming people into our country who have made the country better economically, culturally and intellectually.
We need an immigration system that not only works for the country economically, but one that calls upon our best instincts as a world leader in welcoming people fleeing oppression and hardship. We have the capacity to be that emblem of freedom and dignity so eloquently represented by the Statute of Liberty and we need to return to policies that restore our country as an example for the rest of the world.
One of the (intended) effects of Trump administration policies:
On a Wednesday morning in late February, Annie Johnson Benifield was already through the doors of the M.O. Campbell Education Center, in Houston by 5:30 a.m.
The occasion was a once-a-month naturalization ceremony, where anywhere between 1,700 to 2,600 legal permanent residents swear a 140-word oath in order to become U.S. citizens. The ceremony wouldn’t begin until later in the morning, but Benifield and the 40 or so volunteers from the League of Women Voters (LWV) had arrived early to set up.
The League is the official registration partner for many naturalization ceremonies across the country. And before the pandemic, these events happened frequently, taking place once, or sometimes twice, each month at U.S. Citizenship and Immigration Services (USCIS) field offices as well as some federal courthouses. The League had predicted that, in 2020, it would interact with up to 200,000 new citizens and their family members in 1,000 events across the country.
The Houston chapter specifically had an 85 to 90 percent success rate in new voter registrations, for an annual average of 30,000 new voters, according to Benifield. But this year, with the widespread interest in the presidential elections, she thought registrations might crack 40,000.
“I was getting excited and feeling giddy about it,” she told FiveThirtyEight, “but COVID-19 had a different plan.”
Newly naturalized citizens are one of the fastest-growing voting groups in the United States. In February, the Pew Research Center published a report that found that 23.2 million naturalized citizens would be eligible to vote in November’s presidential elections, making up a record 10 percent of the total electorate. And according to a February analysis by the National Partnership for New Americans (NPNA), a coalition of immigrant advocacy organizations, 860,000 new Americans were expected to have naturalized by November before the pandemic brought things to a halt.
But not all eligible voters actually vote, and naturalized Americans have historically trailed native-born Americans at the polls.1 In 2016, for example, 54 percent of naturalized citizens voted in the general election compared with 62 percent of native-born citizens. According to studies, one explanation is an element that could be missing again this year: voter registration. It’s not a lack of desire to participate, the study finds, but rather it’s an unfamiliarity with how or where to register, registration deadlines, and language issues. Once these barriers are overcome and new Americans are registered, they tend to vote at the same rates as native-born members of their demographic group.
Take someone like Raz Ahmadi, a new U.S. citizen from Afghanistan. For the past five years, he has worked as an organizer registering voters and advocating for progressive environmental policies in Virginia. And this year, after completing the naturalization process, which had been interrupted by COVID-19, in mid-July, Ahmadi will finally be able to cast his own ballot.
Though he has already been involved in politics, Ahmadi says that being able to actually participate is a whole new feeling for him. Being “empowered to vote, mentally, it gives you a lot of power,” he says. “It just personalizes a lot of things. Now you’re more involved in the community.”
But even before COVID-19, the wait time for citizenship applications had hit new highs under the Trump administration. According to USCIS numbers, the naturalization process averaged 8.8 months in 2020, compared with 5.6 months in 2016 and a peak of 10.3 months in 2018,2 though in some cases, it could take up to three years.
COVID-19 exacerbated this delay. On March 18, USCIS temporarily shut down all public-facing activities, including interviews for visas, asylum and naturalization as well as oath ceremonies. The agency did not make plans for virtual alternatives, bringing much of U.S. immigration to a halt.
For each day that USCIS remained closed, 2,100 potential new voters would be disenfranchised, according to a frequently cited report by Boundless, an immigration-services company co-founded by an Obama administration official.
USCIS field offices reopened on June 4 and prioritized in-person oath-swearing ceremonies. Some field offices held drive-through ceremonies, while others held more frequent, but smaller, indoor or outdoor ceremonies. By the end of July, the agency says that it has cleared the backlog of 110,000 oath ceremonies delayed by its closures, as well as an additional 7,905 oath ceremonies not scheduled before the pandemic.
Still, these 7,905 new naturalizations in July represent a twelve-fold decrease than the typical 95,850 naturalizations completed each month. So even though in-person oath ceremonies are continuing, “the fact of the matter was that there was already a backlog of people waiting to be naturalized,” says Jeanette Senecal, who oversees voter-engagement programs at the League of Women Voters, “so unless USCIS is both increasing the number of people who are getting naturalized at each one and offering more ceremonies, there’s really no way they can make that up.”
From the outset of USCIS’s closure, a diverse group of bipartisan policymakers, immigration lawyers, community advocates, and third-party voter-registration organizations like the League of Women Voters have called on USCIS to follow in the footsteps of other federal government agencies in moving activities online. In June, the USCIS Ombudsman’s Office, a small, independent office in the Department of Homeland Security that appeals specific immigration cases and suggests improvements for USCIS, weighed in, calling remote oath ceremonies, held via video teleconferencing, “a legally permissible and operationally feasible solution” for the agency in the short term and a potential long-term solution to “increase efficiencies” in its annual report to Congress.
But still, the USCIS rejected a virtual option. Spokespeople told FiveThirtyEight repeatedly, both before and after the Ombudsman’s report, that “the statutory language mandated by Congress contains certain requirements that are logistically difficult for USCIS to administer naturalization oaths virtually or telephonically.”
USCIS says that they’ve taken steps to clear the backlog in oath ceremonies, but these ceremonies are not the only steps in the naturalization process that are delayed.
Sarah Pierce, a policy analyst with the Migration Policy Institute, calls USCIS’s emphasis on clearing the backlog in oath ceremonies “really misleading” because it wasn’t just oath ceremonies that were paused during this time. “It was also interviews, which meant that naturalization applications weren’t being processed,” said Pierce. She added that unless USCIS was also trying to expedite processing of naturalization applications, there was “no way” the agency was going to be able to naturalize the same number of people by the election.
Dan Hetlage, a USCIS spokesperson, told FiveThirtyEight that the agency has also “prioritized rescheduling interviews for naturalization and adjustment of status that were postponed,” but as of early August, immigration lawyers I spoke with said that their clients had not been contacted to schedule naturalization interviews.
There are currently 315,000 naturalization applicants awaiting their interviews, which on average occur two months before an oath ceremony, according to a Boundless analysis. In two months it will be October, which is the deadline for voter registration in many states. That means an unknown but likely significant number of those 315,000 applicants will not naturalize soon enough to register by October and vote in November.
It’s not just USCIS that has changed as a result of the pandemic. A recent report from the Migration Policy Institute cataloged 63 executive actions undertaken by the Trump administration since March that have further restricted immigration.
Pierce, who co-authored the report, says that these changes represented some of the Trump administration’s “boldest actions on immigration to date” that, in some cases, they had long been pushing but had been unable to achieve. This includes a travel ban on 31 countries, the end of asylum at the southern border, and the suspension of immigration for many family- and employment-based categories as well as four temporary-worker programs.
“During an unprecedented pandemic, which includes both public health and economic crises, you would expect immigration to take a backseat,” says Pierce, “but rather, the opposite has been true.”
When USCIS offices reopened on June 4, organizations like the League of Women Voters scrambled to help with voter-registration efforts. Benifield, from LWV-Houston, recalls reaching out multiple times to the local field office. “We were prepared to go and set up in the parking lot … if they allowed us,” she said.
In the end, her persistence paid off. “The branch chief … agreed that we could actually bring cards” for officials administering the naturalization ceremony to give out. The League cannot be on-site to register applicants directly because of the continued threat the pandemic poses, but they can drop off folders containing voter-registration packets to the local field office to be distributed at the socially distant ceremonies. USCIS is legally mandated to provide, at a minimum, voter-registration forms at each naturalization ceremony.
Benifiled said she was glad they could distribute materials, but she remained unsure how effective this form of voter registration would be. “Clearly, it will not be 30,000 like … last year.”
This is affecting the League’s activities across the country. “Spring and summer are usually really busy seasons for voter registration, but especially in presidential years, we usually see massive increases… [in] naturalization ceremonies,” says Senecal, from the League’s national office.
Volunteers understand the public health prerogatives that prevent them from conducting registrations in person, especially since many are older and at higher risk for COVID-19, but many, like Benifield, are concerned about the effect on registration numbers and broader civic engagement.
“The opportunity cost is not just registration,” adds Senecal, “it’s also voter education.”
At a basic level, in-person voter registration provides necessary information in native languages, says Nancy Xiong, the communications director for Hmong Innovating Politics, a California-based nonprofit that aims to increase civic participation among Southeast Asian Americans.
Native language materials are essential, since many new citizens, especially in already marginalized communities, have challenges with English. Even when they are provided with translated voting materials, Xiong adds, these materials “may not always be helpful because county/state offices do a word-to-word translation, without much context.”
This can create the perception that these communities are uninterested in politics, leading to “big campaigns never or rarely contact[ing] the Southeast Asian community,” Xiong says, even though 92 percent of the 310,000 Hmong Americans are citizens, one of the highest rates among Asian Americans, and 45 percent are eligible to vote. And this perpetuates a cycle of disenfranchisement, at the very moment when immigrant voters might be especially incentivized to vote, if previous elections in which immigration was a hot topic are any indication. In 2008, presidential candidate Mitt Romney’s suggestion that immigrants should “self-deport” and hardline views on DACA, for example, have been linked to a jump in voter registrations between 2008 to 2012.
Sundrop Carter, the executive director of the Pennsylvania Immigration and Citizenship Coalition (PICC), which partners with the Philadelphia USCIS field office as its official third-party registration organization for naturalization ceremonies, told me part of the problem is that: “[B]y definition new Americans have no voter history.” As a result, she said, they’re often bypassed by most get-out-the-vote efforts. “New voters … they’re just invisible.”
This is despite the fact that in many battleground states, like Pennsylvania, where Carter is based, as well as Michigan, Florida and Nevada, the number of new Americans who are eligible to vote now is larger than the margin of victory in the 2016 elections, according to the June 2020 report from the NPNA. “Newly naturalized citizens could help to sway the outcome of national elections,” says Diego Iñiguez-López, the NPNA’s policy and campaigns manager. But more importantly, he adds, “what’s at stake is the political empowerment of newly naturalized citizens … and for the democratic ideals of this country to be fully realized and exercised.”
Community organizations have always tried to fill in the gap — and this year, just as the need for their services ramp up, COVID-19 has made them more difficult to deliver.
Hmong Innovating Politics (HIP), in California, and the nonprofit Bonding Against Adversity in Houston, which works mostly with Latin American immigrants, are doing their best to adapt by moving their activities online. HIP has switched to a text-messaging platform, which uses current friends-and-family circles to encourage contacts to register to vote. Bonding Against Adversity, meanwhile, has expanded another SMS-based communications platform to provide real-time immigration application help, and plans to restart an online version of their 14-session “citizenship college” civic-education program and application workshops in August.
Meanwhile, LWV-Houston members have paid for a QR code that brings up voter-registration information, which it is sharing on signs and, for a while, in person at public libraries, community and faith-based organizations, protests and even a taco chain restaurant.
But still, many organizations are afraid that some of the most vulnerable communities, who already feel left out of the political process, will fall through the gaps. “A lot of the communities that we work with have elementary education, are not computer-savvy, and don’t speak good English,” says Mariana Sanchez, a co-founder of Bonding Against Adversity. That’s why she says in-person registration and education is essential.
But the pandemic has put these in-person services on pause, and as a result, the applicants who need the most support are unable to access it.
COVID-19 shows little evidence of slowing down. By June, hospitals in states like Texas that had avoided the early wave of infections were warning that hospital beds were close to full, and in-person voter-registration activities, which the League of Women Voters had just restarted alongside USCIS’s reopenings, were put on indefinite pause.
In the meantime, smaller oath ceremonies continue, with USCIS spokespeople emphasizing their adherence during the ceremonies to public-health guidelines, including masks and social distancing. But it is not clear if USCIS has any contingency plans in place for alternatives to in-person activities.
The potential of more stay-at-home orders at a local level is also a possibility, which would affect which activities USCIS could continue. Guam’s USCIS office, for example, was shut down for a week as the territory’s COVID-19 case count led the governor to issue orders to shelter in place. Hetlage, the USCIS representative, did not respond to a specific question on contingency plans but reiterated that virtual oath ceremonies weren’t possible.
This has many immigration advocates perplexed. “Almost every business, school district, university and government agency across the country has made adjustments to keep their organizations — and the country — moving,” says Eric Cohen, the executive director of the Immigrant Legal Resource Center, an advocacy group. “Why should USCIS be any different?”
The question represents an ongoing frustration: Yes, there is an unprecedented public-health crisis, but there is also a human-made immigration crisis stemming from the administration’s policies and USCIS’s decision-making during the pandemic.
“It’s hard to look at the actions the administration has taken that result in decreased immigration, and not think that there was some intent there, especially when you’re talking about an administration that is historic in its stance on legal immigration.” says Pierce, of MPI, on whether the immigration agency’s decision-making could be political. Beyond the 63 actions taken during the pandemic, Pierce’s report identified over 400 executive actions by the Trump administration taken in the past four years that have shifted the immigration system toward removing suspected undocumented immigrants, and away from processing applications for naturalization and legal immigration.
It stands in stark contrast with the second night of the Republican National Convention, when Trump naturalized five new citizens at the White House in a prerecorded video. The president welcomed them to “a family comprised of every race, color, religion and creed united by the bonds of love,” as he said in his concluding remarks. “We are one people sharing one home, saluting one great American flag.”
USCIS representatives did not respond to a request for comment on whether the five were given voter-registration forms, as required by law.
Since early summer, USCIS has warned that if it does not receive $1.2 billion in emergency funding, the agency would furlough 13,000 workers – 70 percent of its workforce — and slow or pause many immigration processes. On August 25, after months of back-and-forth, Congress and USCIS reached an agreement that would avoid the furlough.
That agreement would not, however, avoid further delays in processing, as Joseph Edlow, deputy director for policy at USCIS, told The Washington Post: “Averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.”
In an effort to increase its financial sustainability, USCIS will increase fees by an average of 20 percent across the board, and more than 80 percent for naturalization applications. For groups like Bonding Against Adversity and Hmong Innovating Politics, which were already under-resourced before the pandemic, these changes will only add to their immediate workload.
Sanchez says she’s already received more inquiries from people who want to apply for citizenship before application fees for naturalization increase. “The immigration laws are so difficult,” says Sanchez, that “the only way, for some of the people we serve to help their families is through citizenship…and voting.”
But USCIS is making the process more difficult. That’s why the NPNA sees naturalization delays as an issue of voting rights.
“It’s part of the larger anti-immigrant agenda that the Trump administration has pursued over the last few years,” says Iñiguez-López. “Keep immigrants feeling unwelcome, keep them afraid, keep them intimidated, and keep them away from knowing and asserting their rights, including their right to vote.”
In other words, while these would-be citizens are trying to follow the rules of the U.S. immigration system to naturalize and effect change through the established democratic processes, the system has itself become the barrier.
Multicultural Meanderings 