US Immigration
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Today and Tomorrow By DAVID S. JONES
US Immigration has been subject to regular change over at least the last 25 years. The last four years, however, under the Trump Administration saw the most frequent and some of the most significant policy changes in recent history. It is against that backdrop that we must view the current state of immigration as well as the future to come. Changes to US Immigration Under Trump
In his first days in office, President Trump used executive actions to implement the so called Muslim travel bans, change policies at the US-Mexico border, and reduce the number of refugees admitted to the US. He issued the Buy American Hire American (BAHA) executive order, which bogged down the immigration system overall. BAHA changed a number of policies, such as deference to prior adjudications, that had been developed to streamline immigration processing, resulting in extensive delays, significant increases in requests for evidence and significant increases in denials. The Trump administration also changed enforcement priorities, leading to increased ICE enforcement and deportations, and sought to end the Deferred Action for Childhood Arrivals (“DACA or Dreamers”) program, Temporary Protected Status (TPS) for certain countries, and employment authorization for spouses of certain H-1B visa holders. Additionally, the Trump administration sought to change how the required wages were calculated for H-1B and permanent residence purposes and to give preference in the H-1B lottery for companies that can pay higher wages. Lastly, the Trump Administration introduced an electronic system for the H-1B lottery and modified the selection order to give greater preference to individuals with US master’s degrees. In response to COVID, the Trump Administration introduced a number of travel bans. Some of these were country / region- based to help prevent the spread of COVID. Others sought to prevent new workers from coming to the US. The issuance of new H-1B, L1 and certain immigrant visas was suspended. These bans crippled many US businesses as they were not able to fill critical positions or move key personnel internationally. Many of the Trump administration policies were blocked by courts, and reasonable people can debate the pros and cons of others. For example, the electronic system for the H-1B lottery makes it both cheaper and easier for all companies to participate. This means that small businesses who could not afford file for H1Bs in the past now can. At the same time, however, this policy gives larger companies the ability to get a larger share of lottery selections. Does this help or hurt small businesses? On the other hand, the policy to give lottery preference to companies that pay higher wages clearly would disadvantage small businesses. Changes to US Immigration So Far Under Biden
In his first days in office, President Biden sought to undo much of what had been done by the Trump Administration. He immediately changed policies with respect to the US-Mexico border, refugees, TPS, DACA 14
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and deportations. While he left the COVID-related travel bans in place and has actually expanded them, President Biden revoked non-COVID related travel bans and BAHA. He also withdrew or delayed several proposed regulatory changes, including the USCIS public charge rule and wage calculation rules. President Biden issued an executive order on “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” With the revocation of BAHA and this new order, USCIS has returned to giving deference to prior adjudications and is slowly starting to resolve the backlog of cases. This in turn has resulted in fewer requests for evidence and fewer denials. Proposed Legislation
Immediately upon his inauguration, President Biden sent the U.S. Citizenship Act of 2021 to Congress. This bill would provide pathways to citizenship and strengthen labor protections, reform the legal immigration system (including addressing permanent residence backlogs and inefficiencies), reform the employment verification process, provide additional rights to immigrants at the workplace, and prioritize smart border controls. Specifically, the bill would provide Lawful Prospective Immigrant status to all undocumented individuals who arrived in the U.S. before January 1, 2021. After five years in this temporary status, immigrants would have access to a green card and lawful permanent residence if they meet certain requirements. After another three years as lawful permanent residents, they would be able to apply for citizenship. This path also would be available to certain individuals who were deported on or after January 20, 2017 and who meet certain other conditions. The bill would eliminate employment-based per-country caps for employment-based visas in order to equalize wait times for applicants. Under the current system, Indian and Chinese nationals have significantly longer wait times for permanent residence. The bill also would raise family-based, diversity-based, and employment-based visa caps and eliminate the 3- and 10-year bars that currently prevent many undocumented individuals from ever qualifying for a lawful status. The bill has yet to receive a vote in the House of Representatives and is unlikely to pass in the Senate even if it makes it out of the House. Two other bills, however, have passed in the House of Representatives: The American Dream and Promise Act and the Farm Workforce Modernization Act. The American Dream and Promise Act would create a path for citizenship for individuals covered by DACA. It passed 228-197. The Farm Workforce Modernization Act would provide a
