Federal Legislation Update: August 2017

Many immigration related bills have been introduced in 2017 in the 115th Congress. Most have little chance of passage or are not yet in play. Just a few of interest are noted here.

  • The Dream Act of 2017, S. 1615, H.R. 3440

Introduced in July with bipartisan support in both the Senate and the House of Representatives, the Dream Act of 2017 would allow immigrants who came to the U.S. while under age 18, who lived in the U.S. at least 4 years prior to the bill’s enactment, who completed high school or their G.E.D., or who have DACA (Deferred Action for Childhood Arrivals) status, and who meet certain other conditions (medical exam, background checks), to apply for conditional residency, valid for 8 years.  While conditional residents, if they meet various conditions including completing at least 2 years of honorable military service or at least two years of higher education, or performing substantial work for at least 3 years, they would be able to apply for permanent residency. The bill would also protect immigrant youth in elementary, middle or high school, until they are eligible to apply after getting their high school diploma or their GED.

Estimates are that the Dream Act of 2017 would immediately benefit nearly 2 million undocumented immigrants, with an estimated 1.5 million more who would eventually qualify once they complete high school or get their GED.  With legal status, they can pursue more educational opportunities and better jobs, so that they can reach and contribute to their full potential in the U.S.

The U.S. has already invested in these youth, and for many, this country is the only home they can remember.  With our shrinking labor pool as “Baby Boomers” retire, helping these “DREAMers” gain permanent residency  in the U.S. is not only the right thing to do, it’s economically smart for our country.

  • The Agricultural Worker Program Act of 2017, S.1034, H.R. 2690

 This bill would allow farmworkers who have performed at least 100 days of agricultural work in the U.S. in each of the two years preceding the bill’s enactment, and who meet other conditions, to apply for temporary residency (the “Blue Card”).   Both seasonal agricultural visa holders and undocumented farmworkers would be eligible.   After working for a defined period in agriculture during three to five additional years, Blue Card holders who also meet other conditions could apply for permanent residency, and would no longer be tied to farm work.

The bill would help potentially millions of farmworkers who have lived in the U.S. for many years without documentation to come out of the shadow economy and regularize their status.  They could then pay taxes (and would be required to prove that they have, prior to gaining residency), pursue educational goals, and improve their and their families’ lives.

  • The Reforming American Immigration for Strong Employment (RAISE) Act, S. 1720.

Introduced by Senators Tom Cotton and David Perdue and backed by President Trump, this bill would slash the overall number of immigrants to the U.S., chiefly by gutting family-based immigration.   It would immediately reduce the total number of family-based immigrants allowed each year by more than 40% from current levels, and eliminate most categories of family members presently eligible (including children who have have already turned 18, and parents, married children, and siblings of U.S. citizens). It would also eliminate the Diversity Visa lottery, and cap the number of refugees allowed in each year at 50,000.

The bill would create a new “points” system for employment-based immigration. Individuals with English fluency, post-graduate degrees in STEM or professional fields, younger workers, and those with high paying job offers or independent wealth to invest in the U.S. would be given the highest priority, apart from Nobel Laureates and Olympic individual medalists or other world class athletes, who would be granted special points. Under the proposed points system, total employment-based visas would be capped at 140,000 annually, which is fewer than the number granted for each the three most recent fiscal years for which we have complete data.

While the bill’s sponsors state it will strengthen our nation’s economy, there is broad opposition to that view from economists, business leaders, academics and others, including members of Congress on both sides of the aisle.  A small sampling of the early reaction to the RAISE Act:

The Bipartisan Policy Center

The Cato Institute:  here and here

The Council on Foreign Relations

New American Economy

Susan Martin, former Executive Director of the U.S. Commission on Immigration Reform

Various economists quoted in this Eduardo Porter piece in the NYTimes


Maine Legislature – End of 2017 Session Update

While the Legislature’s fight over the budget and the brief State Government shutdown captured the headlines, MeBIC followed several bills affecting Maine’s immigrants and their employers.  Here’s a brief recap.

  • LD 1492: An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce

SUMMARY:     This bill would increase funding for English as a Second Language classes offered by school districts’ adult education centers, in order to eliminate waiting lists for classes, and to expand the classes offered in communities experiencing an increase in immigrant residents.  It also would: provide funding for contextualized English classes combined with job training at worksites; fund expansion from Portland into Lewiston-Auburn of the New Mainers Resource Center, which helps professional level immigrants integrate; and would provide small planning grants to communities experiencing growth in their immigrant populations.

MeBIC’s POSITION:  SUPPORTED.  Several of MeBIC’s Board members were involved in crafting this bill. MeBIC lobbied for LD 1492 and testified in its favor, as did several of MeBIC’s Partner Organizations.

OUTCOME:   The bill emerged from Committee with strong bipartisan support. However, due to the contentious budget battle, the bill was carried over until 2018, to avoid falling victim to funding issues.

  • LD 1307: An Act To Ensure Fair Employment Opportunity for Maine Citizens and Legal Residents

 SUMMARY:     In its initial iteration, this bill would have required all Maine employers to enroll in the federal E-Verify computer system to confirm employees’ legal eligibility to work, but also would have required E-Verify’s use in an unlawful, discriminatory, fashion.  MeBIC pointed out this enormous problem to the committee’s legal analyst, who concurred. The original version was subsequently withdrawn and replaced with language requiring all public employers in the state and all of their contractors or subcontractors to use E-Verify.

MeBIC’s POSITION: OPPOSED.  MeBIC actively lobbied against LD 1307. E-Verify is time consuming and costly to implement, particularly for small businesses without dedicated HR staff or those with large seasonal increases in employees (despite the fact that enrollment and use of the web platform is free).  E-Verify also returns a worrisome percentage of erroneous “tentative non-confirmations” of legal employment eligibility.  Efforts to mandate use of E-Verify by all employers nationally have consistently failed in Congress due to its flaws.   E-Verify in its current form should not be mandated in Maine.

OUTCOME:   LD 1307 was defeated.

  • Biennial Budget: Retention of General Assistance Funds Availability for Immigrants Applying for Permanent Status in the U.S.

SUMMARY:     General Assistance (G.A.) provides safety net subsistence level support for those who have nowhere else to turn.  Since 2015, it has been available to noncitizens who are legally here and seeking permanent status in the U.S., such as asylum seekers, for a maximum of 24 months.  Asylum seekers cannot get authorization to work under federal law until their asylum applications have been in process with the U.S. government for at least 180 days, and they are ineligible for federal means-tested benefits.  G.A. helps asylum seekers, who are not sponsored by any agency, survive and remain in Maine while awaiting their work permits.  With Maine’s declining population, investing in supporting asylum seekers in the short term, so that they can be part of our workforce and our communities in the long term, is an investment in strengthening Maine’s economy.

MeBIC’s POSITION: Several individual businesses wanted to make the case at the State House that retaining limited G.A. eligibility for asylum seekers and others on the path to permanent immigration status is a smart investment in Maine’s economy.  MeBIC’s Director supported their efforts, and also provided talking points to several Republican and Democratic legislators who requested them, making the economic case for G.A.

OUTCOME:   G.A. eligibility for immigrants was retained in the approved biennium budget.

Departments of Homeland Security and Labor disappoint on H-2B visas

As noted by MeBIC previously , the 33,000 nationwide cap for summer seasonal H-2B worker visas was reached in March. This was two months earlier than the prior year, and shut many Maine employers in the hospitality sector out from getting the workers many have relied on for years to handle the surge in summer and “leaf-peeping” tourism.

In May, Congress included language in an appropriations bill that would have allowed the issuance of up to nearly 90,000 additional H-2B visas per year, as MeBIC discussed in this post.  On July 19, 2017, the Departments of Homeland Security and Labor issued a final rule implementing the new law, but authorized only an additional 15,000 H-2B visas for the current fiscal year ending on September 30, 2017.

Coupled with a new requirement imposed by Congress that employers attest that they will suffer irreparable, permanent, harm should they not get the temporary H-2B workers they need, among other requirements, DHS and DOL’s rule is too little, too late to help Maine’s summer seasonal non-agricultural employers this year.

“Travel ban” Executive Order Update

On June 26, 2017, the U.S. Supreme Court agreed to hear the Federal Government’s appeal of the federal court decisions enjoining sections of the Administration’s March 6, 2017 Executive Order (E.O.). That E.O. suspended entry for an initial period of 90 days of citizens or nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, as well as for 120 days of refugees, and capped refugee admissions for the current fiscal year at 50,000.

The Supreme Court will hear the appeal in its next term that begins in October 2017.

The Supreme Court also narrowed the scope of the lower courts’ injunctions, allowing the government to implement the E.O. against persons from the six named countries or refugees who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court gave only brief guidance about how those relationships should be defined, creating much confusion. The E.O. took effect on June 29, 2017, and the government construed those exempted from the travel and refugee bans very restrictively.

On July 13, 2017, the Federal District Court of Hawai’i ruled that the government’s definition was too narrow, and expanded the classes of persons the government to whom could not apply the E.O.   That decision was then appealed as too broad, resulting in a Supreme Court clarification on July 19, 2017.  As a result of the various court rulings, the E.O cannot be enforced against people from the six countries or refugees who:

  • are parents, parents-in-law, spouses, fiancé(e)s, children, adult sons or daughters, sons or daughters-in-law, whole or half-siblings, step-relatives by marriage, grandparents, grandchildren, brothers or sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons already in the U.S.;
  • have a bona fide relationship with a U.S. entity that is “formal, documented, and formed in the ordinary course”, including those with job offers from U.S. employers. The Supreme Court specifically gave additional examples such as students accepted to attend, or those coming to speak or lecture at,  U.S. universities.  Presumably people from the six countries who intend to attend meetings with a business with which they have a documented relationship, would be able to apply for a visa or entry.

Individuals from any of the six countries who have dual nationality may be exempted from the E.O. travel ban if they travel on their passport issued by the non-targeted country. The E.O. also does not apply to those who already have permanent residency or refugee or asylee status in the U.S., or who were issued visas prior to the June 26th Supreme Court decision.

As a practical matter, the U.S. consulates are denying visas to many people from the six countries who may well have gotten visas in prior years, regardless of the various court decisions. There is no appeal from a denial of a U.S. visa, though reconsideration may be requested.

As a result of the travel ban and the uncertainty surrounding U.S. visa policy under the current administration, many individuals are choosing not to pursue work or study opportunities in the U.S.   Eventually there may be measurable negative economic consequences from the new policies.

Department of Homeland Security delays start of International Entrepreneur Rule

Immigrants have a centuries-long track record of entrepreneurial activity in the U.S. More than half of all U.S. start-ups of at least $1 billion in value had at least one immigrant cofounder, according to a 2016 study.  This holds true as well for over 40% of Fortune 500 firms who have at least one immigrant or a child of immigrants founder. Immigrant entrepreneurs are the backbone of a vibrant U.S. economy.

Unfortunately, the nation’s outdated immigration laws do not provide adequate avenues for immigrant entrepreneurs at the start-up stage. This shuts out not only entrepreneurs living abroad, but also foreign students who have attained advanced degrees, often in STEM fields, at U.S. universities, who want to innovate here rather than in their home countries.

Following repeated unsuccessful attempts to get meaningful immigration reform through Congress, the prior Administration crafted a new International Entrepreneur Rule (IER) to allow use of an existing program called “parole” as a vehicle through which international entrepreneurs could gain temporary legal status in the U.S. to launch new enterprises, on a case-by-case basis, if they met certain investment and other criteria. If their launch efforts were successful, they might later obtain permanent legal status under existing immigration laws.  The IER was scheduled to take effect on July 17, 2017.

On July 11, 2017, the new Administration published a final rule delaying implementation of the IER until March 14, 2018, and expressing its intent to rescind the IER altogether, following a notice and comment period ending Aug. 10, 2017.

Many organizations and individuals concerned with the economy expressed their disagreement with the new Administration’s stance, including the National Venture Capital Association,  and the Consumer Technology Association.

Rescission of the IER, absent Congressional action to dramatically improve our federal immigration statutes, will result in the U.S. losing talented entrepreneurs and job creators to other countries.

Two MeBIC Board members publish Op-Ed

MeBIC Board President Mark St. Germain, Principal and Senior Scientist at St. Germain Collins, and Board Member Cathy Lee, Managing Partner of Lee International, speak out against efforts to cut immigrant eligibility for safety net General Assistance (G.A.) benefits from Maine’s state budget in this opinion piece published in the Bangor Daily News.

Under current law, only those who are legally here can get G.A. and only for a maximum period of 24 months.

G.A. is vital for asylum seekers in Maine who, despite being legally here, under federal rules cannot get their work permits until their asylum applications have been in process for 180 days.   They have no legal way to work to support themselves during this period.   Asylum seekers typically get jobs right after receiving their work permits, and they quickly repay the investment that Maine has made in them through the taxes they pay once they are working.

With Maine’s rapidly shrinking workforce, we need every last person who moves to Maine, whether from across the country, or around the globe, to stay and work in Maine.  G.A. helps asylum seekers do that.

As the op-ed points out, G.A. for asylum seekers is a short-term investment, with long-term economic benefits for Maine.

Administration begins “extreme vetting” of some visa applicants

As of May 23, 2017, U.S. consular officers can ask certain visa applicants whom they feel need “more rigorous” screening to complete a new form requesting 15 years worth of address, employment, and travel history (including domestic travel in certain cases, and source(s) of funding); names and dates of birth of immediate family members, including children and siblings as well as former spouses or partners; and phone numbers, email addresses, and identifiers for all social media accounts going back 5 years.

Both nonimmigrant (temporary), and immigrant visa applicants may be asked to complete the form. According to the notice in the Federal Register, those who are from, who live in, or who have traveled to countries in which a U.S. consular officer believes terrorists are operating are more likely singled out to complete the new form. As a practical matter, this means visa applicants from the six countries identified in President Trump’s March 6, 2017 Executive Order, including Iran, Libya, Somalia, Sudan, Syria and Yemen, will be disproportionately affected, as will those who are from or have ties to other predominantly Muslim countries.

While completing the form will be, in theory, voluntary, as a practical matter, failure to comply is likely to result in denial of the visa. Additionally, even in the best-case scenario, this level of “vetting” is likely to lead to visa processing delays. In the worst case scenario, innocent mistakes in completing the form could lead to visa denials. For example, a visa applicant who inadvertently omits a weekend trip taken more than a decade ago, or who gets the dates wrong on any travel or on moving from one address to another, or who forgets to list a no longer used social media account, will likely face a visa denial.  U.S. consular officers have complete discretion in their decision making, and there is no right to appeal a visa denial.

The new form has been approved for use through November 30, 2017, at which point the Department of State may request that its use be extended.

Impact for Maine businesses?      Because this form will likely be used with visa applicants from the six countries named above, many employees at Maine businesses who are originally from Somalia or Sudan, etc.  may experience delays or denials of their relatives’ immigrant visas.  This will cause considerable strain on affected families, as will the mere worry that their family members who are in the pipeline to immigrate could be denied their visas.  Nonimmigrants applying for visas to visit, study or work in the U.S. may also experience higher rates of visa denials as a result of the government’s decision to start asking for 15 years’ worth of detailed data.

Op-Ed in Portland Press Herald about the importance of Immigrants in Maine

The Portland Press Herald published a Maine Voices column today authored by David Vail, a retired Bowdoin College professor of Economics, with MeBIC’s Beth Stickney.  You can read the article here.  The op-ed notes that LD 1492, pending in the State Legislature, would provide funding for increased availability of English as a Second Language classes and other programs that will help immigrants more quickly contribute to Maine’s workforce and reach their full potential.