Month: October 2018

President Trump announced today that he plans to end the Constitutional guarantee of citizenship by birth in the U.S. via an executive order.

Apart from the questionable legality of such an action, which will certainly be challenged in the courts, it is not too soon to reflect on the importance of birthright citizenship in the U.S.   Without it, many people born in the U.S would be stateless, and would be legally treated as an “underclass” in our society.    Birthright citizenship gives children of immigrants an automatic stake and true legal “belonging” in this country.   As the Cato Institute‘s Alex Nowrasteh wrote in The Federalist,

the Fourteenth Amendment…..should be defended because of how well it has aided immigrant assimilation in the United States”.

We should also be mindful, as noted in this essay published to mark the 80th anniversary of the Nuremberg laws, that

the denial of citizenship has increasingly become a weapon, used to vilify and harass designated targeted groups as “alien” to the nation.

For a detailed review of the history and the legal meaning of the 14th Amendment’s citizenship by birth in the U.S. language, read this 2006 journal article by James C. Ho, now a judge on the Fifth Circuit Federal Court of Appeals.

The President is truly challenging us to ponder who we are as a nation, and who we want to be.  MeBIC will always stand on the side of supporting birthright citizenship.

As the Administration sends thousands of troops to the southern border and considers issuing an executive order to close the border to Central Americans, it’s important to understand who is coming the southern border and why.

This article by the Director of the Mexico Security Initiative at University of Texas in Austin provides cogent background about the conditions producing the wave of immigrants arriving at our southern border during the past spring and summer that prompted the administration’s harsh family separations response.  While the article looks at that prior wave of immigrants, the conditions described in it apply equally to the most recent “caravan” and the people who are part of it.

Contrary to the administration’s assertions, the nation is not experiencing a national security “invasion” on our southern border.    Indeed,  apprehensions on the southern border in FY 2018 were only 24% of the high of over 1.6 million apprehensions in FY 2000.  The 396,579 apprehensions in FY 2018 were in line with the number of annual apprehensions each year since FY 2010, which in turn were the lowest numbers since the early 1970s.

In addition, under both U.S. and international law, the U.S. must allow those seeking asylum the opportunity to apply for it, whether they enter at or between border posts.  Our nation can handle large numbers of asylum claims if it funds and staffs the asylum offices and immigration courts adequately.   For example, from 1983 through 1987, when civil wars were raging in El Salvador, Guatemala, and Nicaragua, over a million individuals were apprehended at the Southern border each year.   Our nation was able to  process their claims in the immigration courts without the need to militarize the border or to threaten to close to border to asylum seekers (which will lead to immediate legal challenges).

Let’s not exaggerate either the size or the impact of the current caravan and other waves of Central Americans fleeing the Northern Triangle countries.  Our nation can vet them and give them due process while keeping our  values intact, as has been done many times before.

UPDATE:   On October 25, 2018, in the the lawsuit challenging the administration’s family separations policy, the government filed an update indicating that 264 children remain separated from their parents, including 14 newly identified children.  The court filing underscores the chaos that the report below found, in terms of how the government handled tracking children that it forcibly took from their parents.

The Trump administration is also reportedly considering piloting a new “binary choice” proposal for families with children who arrive seeking asylum. Since under the Flores settlement agreement the government cannot legally detain children beyond 20 days, the program would force parents to choose between staying with their children in detention centers, or being separated from their children so their children are not detained.   But as noted in a September 2018 Congressional Research Service report to Congress, the legality of a “binary choice” proposal is doubtful.

The Office of the Inspector General (OIG) of the Department of Homeland Security (DHS) has published a report about DHS’s implementation of the “Zero Tolerance” policy.   Begun in May 2018 per order of the Attorney General, that policy resulted in over 2600 children being taken away from their parents at the southern border, some of whom are still waiting to be reunited with their parents.

The report concludes that DHS was not adequately prepared to carry out the Zero Tolerance policy.

Problems included:

– Encouraging people to apply for entry at border posts, but then making people wait for days or turning them away, likely prompting unauthorized border crossings;

– Separating children who were too young (pre-verbal) to provide information about their parents and not photographing them or identifying them with ID bracelets or other identifiers so that they could be later matched with their parent(s).

– Having inadequate database integration to accurately track the number of separated children in custody, to catalogue and match parents and children, or to know where children were sent after being taken from their parents, so that parents would be able to find their children and government officials would be able to reunite them.  OIG could find no evidence of the “central database” that the government claimed existed.

– Holding children in short term facilities inadequate for children, for longer than the 72-hour maximum allowed.

– Providing parents with inaccurate or inconsistent information so that parents often did not understand that their children were being taken from them, or where their children were and how to contact them or get them back.

Following public outcry, in June 2018, President Trump issued an executive order forcing DHS to stop separating families, leading DHS to resume releasing them.  Typically they would be required to wear electronic ankle bracelets, pay a bond, or comply with other detention alternatives.  (Under the terms of the 1997 Flores settlement, minors cannot by detained by DHS for than 20 days, and when held should be in non-secure, state-licensed settings for minors.)

Unfortunately, the administration is now planning to eviscerate the Flores settlement in a proposed rule that would allow indefinite detention of minors, together with their parents.   The public comment period on the proposed rule closes on November 6, 2018.

A new working paper published by the National Bureau of Economic Research examines the impact of per country visa limits on the U.S.’s ability to attract and retain PhD STEM graduates from China and India.

U.S. law limits the number of people who can immigrate from a single country to the U.S. each year.   If the number of visa applications exceeds the limit, a wait list develops.   The two most populous countries of the world have exceeded the numerical limit for years, resulting in a continually growing wait list for highly educated and skilled workers in STEM professions from China and India.    To illustrate, Chinese citizens with advanced degrees who will reach the top of the waiting list and be eligible to finally immigrate in November, 2018 began their immigration process before June 15, 2015.  Similarly situated Indian citizens began their immigration process before May 22, 2009, over nine years ago.

The NBER working paper, The Impact of Permanent Residency Delays for STEM PhDs: Who Leaves and Why, examines the drop in the number of Chinese and Indian PhD graduates from U.S. graduate schools who stay in the U.S. to work upon completion of their studies, and finds that the longer the delay in getting residency, the more the U.S. retention rate for these graduates declines.    As the abstract of the working paper notes

We conclude that per-country limits play a significant role in constraining the supply of highly skilled STEM workers in the US economy.

This has economic repercussions since native U.S. citizens are underrepresented in graduate level STEM studies, but STEM fields play a critical role in U.S. economic growth.   In addition, a Cato Institute analysis notes that Chinese and Indian STEM advanced degree professionals are high wage earners, and our economy loses their individual tax and spending contributions as well.

Another impending casualty of the wait list are the spouses of these individuals.  As we have highlighted previously, under an Obama-era rule, many of these individuals’ spouses now have work authorization.   The Trump Administration has signaled its intent to revoke that rule, and with it, their ability to be productive and contribute while they wait for years with their STEM graduate spouses for available immigrant visas.   This is another factor pushing talent we need out of the U.S. to other countries with more rational immigration systems.

The current per country quotas were created in 1990.  It is high time for Congress to revisit and reform or eliminate them.

As immigration continues to be a flashpoint political issue, this updated edition of John F. Kennedy’s A Nation of Immigrants released on the 60th anniversary of its initial publication, is a timely read despite the intervening years.

This new edition has been updated to include information on current immigration policies, according to publisher Harper Collins.

Why read this now?  Here’s one Amazon.com reader’s review:

(T)hough some of his numbers are out of date, the themes, subject, and his pragmatic arguments are timeless. I found myself reading and smiling with disbelief with how relevant this whole book is and how beautifully entwined he mixes history with compassion and historical backing. When I read it I was impressed with how never ending and cyclical the immigration debate really is. The only thing that seems to change is what nationality or group is coming here and how people react to them. I highly recommend any and all people interested in this subject to read this book, which shouldn’t take more than a few hours. I admire Kennedy a great deal and am grateful I bought and read this small treasure. While I was reading it I often found myself imagining and wishing he were across from me, coffee in hand, to discuss todays problems and his views on how to solve them.

Harvard Business School professor William Kerr has recently published The Gift of Global Talent: How Migration Shapes Business, Economy & Society.

An abstract of the book from Professor Kerr’s HBS faculty page states:

The global race for talent is on, with countries and businesses competing for the best and brightest. Foreign talent has transformed U.S. science and engineering, reshaped the economy, and influenced society at large. But America is bogged down in thorny debates on immigration policy, and the world around the United States is rapidly catching up, especially China and India. The future is uncertain, and the global talent puzzle deserves close examination. This book combines insights and lessons from business practice, government policy, and individual decision-making to give voice to data and ideas that should drive the next wave of policy and business practice.

At the opposite end from the academic spectrum, an Amazon.com reviewer states:

In the Gift of Global Talent, William Kerr unpacks the topic of high-skilled immigration in highly readable prose, and clarifies an otherwise murky subject. On those two counts alone, this book is a triumph. It’s also wicked fun to read.

Kerr’s book reviews how high-skilled immigration shapes top talent clusters (e.g., Boston, San Francisco), spurs entrepreneurship and innovation, and spreads new ideas to businesses and societies around the globe. He also surveys the many regulations and debates that surround high-skilled immigration before concluding the book with his own set of practical advice to political and business leaders. Kerr ultimately argues that human talent is “the world’s most precious resource,” beating out “other candidates for this title, like water or oil.” Having finished the book, I’m inclined to agree.

The Gift of Global Talent is best-suited for policymakers, industry leaders, and anyone else looking to understand why high-skilled immigration matters. Kerr’s approach is refreshingly level-headed and happily leaves out the many partisan platitudes that plague discussions about immigration. Instead, Kerr has compiled a series of original and persuasive arguments that should reshape the contours of the immigration discussion itself.

I strongly recommend The Gift of Global Talent to anyone who wants an enjoyable, smart book that can be finished in a single sitting. Two big thumbs up.

This may be worth adding to your reading list.

Months after a draft was released, on October 10, 2018 the administration published proposed revisions to immigration regulations interpreting the “public charge” ground of inadmissibility.    The proposed rule, if it takes effect in its current form, would result in a sharp decrease in immediate family immigration.

As explained in this prior post, in 1996 Congress required immigrating immediate family members of U.S. citizens and permanent residents to file an “affidavit of support” proving their petitioning relative’s ability to support them with an income higher than 125% of the federal poverty guidelines before they could be approved for permanent residency.  Under the proposed new rule, that affidavit of support would just be the threshold requirement.  The intending immigrant would also be judged on a variety of other factors that are designed to deny residency to those who are not extremely advantaged.

Factors that the government would view as “negative” or “heavily weighted negative” when evaluating whether an immigrant is “likely to become a public charge” would include:

• If the intending immigrant is younger than 18 (despite the fact that immigrant youth quickly learn English and acclimate, and go on to work and pay taxes for decades);
• If an immigrating parent of a U.S. citizen is older than 61 (despite the fact that s/he may be fully capable of working, or will provide childcare to grandchildren, enabling both parents in the household to work);
• If the intending immigrant lacks proficient English, or higher education, or private health insurance; or
• If the intending immigrant has children, among several other factors.

The intending immigrant could counter any negative factors with positive ones, such has already having a job that provides health insurance (an unlikely scenario), but the only proposed “heavily weighted” positive factor would be a household income that exceeds 250% of the federal poverty guidelines.  In 2018, for example, that is nearly $63,000 for a family of four, an amount that is higher than the nation’s median income. The Migration Policy Institute has found that 40% of native-born U.S. citizens would not meet that income threshold, as well as 56% of those who immigrated to the U.S. in the past 5 years.

Let’s be clear – this proposed rule is not about keeping immigrants off of public benefits.   Since 1996, immigrants have been excluded from federal public benefits eligibility during their first five years after becoming permanent residents of the U.S., with limited exceptions such as FEMA disaster assistance and emergency Medicaid.  And undocumented immigrants who are here while they wait to immigrate are also ineligible for federal benefits, with the same limited exceptions.  This is a “solution” where no problem exists.  Moreover, the government’s analysis and  benefits thresholds are disingenuous and intellectually dishonest, according to this analysis by the Cato Institute.

Instead, the administration is trying to reduce immediate family immigration without involving Congress.   The administration has pushed Congress multiple times to cut immediate family immigration nearly in half, and been repeatedly thwarted.   But should this rule take effect as proposed, that will be the result.  The bill ostensibly applies also to nonimmigrant (temporary) visa holders, and to those immigrating through employment, however, this is a smokescreen.  As a practical matter, nonimmigrants do not get visas unless they are well-off or are entering on employment-based visas, and in that latter case they start work and support themselves immediately after arriving.  Nonimmigrants also are ineligible for all but emergency-based public benefits in any case.  Additionally, immigrants applying for residency through employment are typically professionals or highly skilled individuals with high incomes who are not likely to need public benefits.   So, despite its breadth, this bill’s impact aims squarely at people immigrating through family.

About two-thirds of immigrants to the U.S. annually are immediate family members of  U.S. citizens or permanent residents.  In Maine, from FY 2010- FY 2016, that translated into over 6600 new community members, workers and taxpayers added to the state’s population through family-based immigration.  According to the Census, from 2010-2016, Maine’s population grew by only 3118 people.  If the proposed rule had been in place during those years, family based immigration would have been halved, resulting in net population loss in Maine.  With Maine’s aging population, shrinking workforce, and low unemployment rates, we need more immigrants, not less.

Immediate family immigrants bring their backgrounds with them, ranging from unskilled to highly educated and skilled and everything in between.   Maine’s economy needs farmworkers and caregivers every bit as much as it needs highly trained professionals.  Immediate family immigration has stimulated the nation for centuries and will continue to do so.

Public comments on the proposed rule change will be accepted through December 10, 2018  Comments can be submitted via the government’s comment portal.  Comments longer than 5000 characters must be uploaded to that site.   Note that you must specifically request that any links or attachments included in/with your comments be incorporated by reference and reviewed, otherwise they will be ignored.

MeBIC will submit comments opposing the rule change.   Please join businesses across the country by submitting your own comment, using this Maine-specific comment template, or you can submit your own comment directly, here.  Comments are due by 11:59 p.m. on December 10, 2018.

Please contact MeBIC  to let us know that you submitted a comment.

For a more detailed discussion of the proposed rule change and its impact, read these analyses by MeBIC partner New American Economy and by FWD.us .

This story in The Mercury News highlights how Canada’s reformed immigration system, designed to make it easier for talented foreign nationals with STEM skills to immigrate, is paying off for that nation.

As we’ve noted in prior posts, in the U.S., employers are experiencing new levels of delays and denials of applications for professional working visas, and the administration is planning to revoke the ability for spouses of professional level visa holders to work while they wait as much as a decade or more for an available permanent resident visa.  These and other measures taken by the administration at best create uncertainty, and at worst, impressions of hostility, that may discourage foreign-born talent from wanting to stay and work in the U.S.

In contrast, Canada’s new Global Skills Strategy offers eligible professional level workers the opportunity to have their visa application processed within two weeks.  Obtaining the Canadian equivalent of permanent residency is also streamlined through the Express Entry system, which can take as little as six months.  As the Canadian government stated in the article,

Immigration will continue to play a crucial role in keeping our country at the forefront of the global economy…..Thanks to immigration, Canada is in a strong position to face future labor-force challenges arising from our aging population.

With unemployment at 3.9%, the lowest rate since 1969, and with the nation’s aging population, the U.S. would do well to emulate Canada’s immigration policies.

UPDATE:   On October 25, 2018,  the government notified the federal district court that it will comply with the order (described below) by automatically extending until April 2, 2019 the work permits of Sudanese and Nicaraguans who have TPS currently  (including those whose application during the most recent re-registration period for TPS was already approved, or whose most recent application for TPS is still in process with USCIS and no decision has been received yet).

On October 3, 2018, a federal district court issued a preliminary injunction blocking the administration from terminating Temporary Protected Status (TPS) for citizens with TPS from El Salvador, Haiti, Nicaragua and Sudan.