Month: July 2019

UPDATE:  July 30, 2019:

Family Detention and Family Separations: The administration, in updates filed with the federal court that in June 2018 ordered the Department of Homeland Security  to cease family separations and to reunite separated parents and children, has admitted that it has continued the family separations, taking more than 900 children away from the adult family members with whom they crossed the border, as this article in the New York Times explains.

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On July 2, 2019, the Department of Homeland Security’s Office of the Inspector General (OIG) issued a new report on Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley. This report follows on the heels of another report MeBIC from May 30, 2019, finding similar dangerous conditions in several other detention centers on the southern border.

In response to the concerns raised in the OIG’s July report, the Department of Homeland Security, at Appendix A of the report, cites to the overwhelming number of individuals crossing the border, noting that multiple months of more than 100,000 arrivals was “overwhelming the ability of the Federal Government to respond.”

Yet, the government has  decades of experience in dealing with similar numbers of individuals arriving over the southern border, without it devolving into a similar detention crisis.   Customs and Border Protection data shows that from 1983 through 2006, in all but 5 of those years, more than a million people were apprehended on the southern border annually. During 9 of those years, apprehensions averaged in excess of 100,000 per month.  (Border crossings fell dramatically in 2007 and subsequent years due to the recession, which yielded sharp drops in Mexican border crossers.)

As this analysis from the Cato Institute points out, the current detention crisis is one of the government’s own making.   Conditions on the southern border do not have to be this bad.    Query whether this is the result of incompetence, negligence, or malevolence.

Despite being in the news constantly, understanding what is happening on the southern border can be challenging.

The administration cites crisis levels of people crossing the border, yet in historic terms, until the 2007 recession, border officials had for decades handled about 100,000 people crossing the border monthly.  The difference is that most of them were Mexicans crossing alone – some fleeing persecution, but most simply seeking work to support their families.  Now, the majority are families from Central America fleeing dangerous conditions and seeking asylum and safe haven in the U.S., a right provided under both U.S. and international law.

Maine’s most recent asylum seekers from Africa who arrived in Portland in June also crossed over the southern border.   Some waited in Mexico for over 3 months before they were processed at the border post, as a result of “metering,” where only a few people are allowed to request asylum each day.   Due to dangerous conditions in Mexico, others gave up after waiting about two months to be able to enter through the border post, and crossed over the Rio Grande where they turned themselves in to border patrol officers and requested asylum, as both U.S. and international law allows.

The administration’s actions in response to the increased numbers of families seeking asylum are being challenged in the courts.  They include the “remain in Mexico” policy, ironically named the “Migrant Protection Protocols” despite the fact that Central Americans and others face many dangers while waiting in Mexico for the date when they can have their “credible fear” interview that will determine if they can apply for asylum in the U.S.

Another new policy proposed on July, but quickly blocked by one federal court soon after a separate federal court would have allowed it to be carried out while its legality is litigated, would have the administration rejecting asylum applications by persons who have passed through any country that was a signatory to the 1951 Geneva Convention or the 1967 Protocol  providing standards of protection for those fleeing persecution.   Mexico and all Central American countries that asylum seekers  pass through have signed or acceded to these international covenants, but that does not mean they are safe.

The most recent administration policy was announced on July 26th, when the U.S. and Guatemala signed an agreement to require those seeking asylum in the U.S. to be forced to apply in Guatemala.  As the article below points out, it is not clear that this would apply only to those who cross through Guatemala on their way to trying to enter the U.S. through the southern border.  The agreement will be challenged in U.S. courts, and the Guatemalan Supreme Court has already ruled that it would require legislative approval to take effect.

Also on July 26th,  the Supreme Court lifted an injunction blocking the administration’s diversion $2.5 billion of Department of Defense funds to build sections of southern border wall, while litigation over the legality of that diversion continues.

Here are a few recent resources that you may have missed that might deepen your understanding of how the administration is reshaping the U.S. response to those who seek protection from harm.

• Article in Just Security about the U.S.-Guatemala agreement.
• Post in Immigration Impact describing injunction of administration’s July 15th policy to deny asylum to most asylum seekers who pass through other countries en route to the U.S.
• Commentary by the Cato Institute pointing out flaws in the administration’s newest policy making individuals who passed through third countries on their way to the southern border ineligible for asylum.
• Graphic from the Wall Street Journal explaining how individuals are processed at the U.S. southern border.
• Description of how “metering” at the southern border plays out.
• Op-Ed by a career asylum officer describing how the administration’s new policies betray our legal and moral obligations to fairly hear the claims of those seeking protection in the U.S.
• Article in Texas Monthly that describes some of the challenges African migrants, like those who are now in Portland, encountered before and after reaching the southern border.
• Op-ed on Fox News about the detrimental impact of the Supreme Court’s decision to allow border wall construction to proceed on the southern border.

As we’ve noted previously, while the U.S. raises obstacles delaying or preventing  professional and specialized talent from getting visas to work in or immigrate to the U.S., Canada is smoothing the way and beginning to reap the  benefits.

Time recently published an in-depth look at this.  Some takeaways:

– “The United States allows about 140,000 immigrant skilled workers to become permanent residents annually; Canada, a country with one-tenth of the population, welcomed 160,000 skilled workers on the track to permanent residency in 2017 and hopes to get that number to nearly 200,000 by 2021.”

– One international recruiting company “has 70,000 skilled tech workers looking to relocate to Canada and Europe; it does not help these people go to the United States because the process is too difficult.”

– Economic research suggests that “every high-paying tech job created in an economy results in five more openings.”

– “While 95% of global start-up and venture capital activity took place in the United States in the mid-1990s, today it’s about half.”

One point in the article merits clarification.  It notes that the administration supports high-skilled immigration and to that end has backed the RAISE Act that would create a points-based system.  However, the RAISE Act would not increase from current law the total number of high skilled employment visas available, and has several poison pills that would discourage many high skilled individuals from immigrating to the U.S., such as those with families having to leave behind any children who are 18 or older.

Moreover, the administration’s actions speak louder than words: increased delays and denials of petitions for professional and high skilled workers, proposed elimination of employment authorization for spouses of these workers who are waiting in “green card” backlogs, and other measures all signal a more hostile attitude towards legal immigration of high skilled talent than the overtures that Canada is making.

Canada’s gain is the U.S.’s loss.

 

 

The administration announced on July 22, 2019 a dramatic expansion of a procedure called “Expedited Removal”.  This policy has previously applied to immigrants encountered within 100 air miles of the border (which encompasses the entire state of Maine) who could not prove that they had been in the U.S. for more than 14 days.

Under the new policy, expedited removal now applies nationwide to anyone encountered by immigration authorities who cannot prove that they have been here for more than two years.  The new policy took effect on the date of the notice’s publication on July 23, 2019.

Under expedited removal, immigration agents can summarily remove anyone they believe to lack legal status without due process and access to an immigration court hearing.   Only if a person affirmatively cites a fear of returning to her home country are authorities supposed to pause the removal process and arrange for the person to be interviewed by an asylum officer.

This new policy will inevitably lead to native born U.S. citizens, who need not carry any proof of their immigration status and who are not in immigration databases, being erroneously swept up in the expedited removal process.  It will also lead to increases in family separations, and to employers losing valuable employees and communities losing valued community members.

You can find a primer on expedited removal here.

Maine employers should advise their immigrant employees who have been in the U.S. for longer than two years to carry photocopies of multiple years of W-2s with them at all times, so that they can show their presence here for two years if they get stopped at a CBP checkpoint while driving in Maine, or have any other encounter with ICE.

The new policy’s legality is being challenged in the federal courts but is in effect as of this writing.

 

As the U.S. experiences persistent low unemployment and a shrinking workforce due to an aging population and declining birthrates, immigrants are critical to keeping a robust workforce and a growing economy.

But U.S. immigration laws are drastically out of date.  Numerical limits, by category of immigrant and by country, on who can obtain permanent residency annually have led to untenable wait lists keeping millions of immigrants outside of the U.S.   Growing government application processing backlogs that have worsened under the current administration are exacerbating the problem.

Two recent analyses highlight the extent and the impact of the quotas that  keep immediate families separated and potential workers out of the U.S..  Both reports use government data to reach their findings.  To be clear, these reports are looking at people whom U.S. Citizenship and Immigration Services (or its predecessor, the  Immigration and Naturalization Service) have already approved as eligible to immigrate, but who are stuck on wait lists caused by numerical limits established by Congress decades ago.

Boundless immigration has issued a report  specifically looking at immediate family immigration and makes ten key findings, quoted below:

1. The vast majority of family-sponsored immigrants are immediate relatives of U.S. citizens.
2. Plenty of “high-skilled immigrants” are also family-sponsored immigrants.
3. Family-based immigration is the primary pathway to the United States from nearly every country.
4. Although most family-sponsored immigrants nationwide came from Mexico, that’s not true for all states.
5. There are nearly 4 million people waiting in line for a family-sponsored green card.
6. The wait time for some family-sponsored immigrants could be more than 100 years.
7. Even for people at the head of the green card line, the government is adding significant extra wait time.
8. The spouses and children of some permanent residents have to wait years to live together in the United States.
9. President Trump’s plan would drastically reduce family-sponsored immigration.
10. America’s peer countries issue far more green cards, based on both family ties and economic needs.

The Cato Institute has released an analysis examining the waitlists in all immigrant categories, including both family and employment based.   With those additional categories, the report finds that there are more than 5 million people waiting to immigrate in backlogs that have built up over decades.  Some key findings:

• 28% of those who immigrated in 2018 had waited more than a decade, compared to 3% in 1991.
• Approximately 14% of those on the wait list in 2018 are likely to die before they reach the top.
• Certain countries are disproportionately affected, such as India for employment based immigration, and Mexico and the Philippines for family immigration.

The takeaway from both of these reports?  As the Cato Institute summed it up:

During (the decades since Congress passed the current limits), the U.S. economy has doubled, and its population has grown by one-third. Entire new industries have formed that need workers. Congress should reform the antiquated quotas, enact a limit on wait times, and keep these pathways viable for legal immigrants in the 21st century.

 

 

The more than 200 asylum seekers who arrived in Portland from the U.S.’s southern border in June will have better prospects of getting into housing due to a recent change announced by Maine’s Governor Mills on July 18, 2019.  This is welcome news for them, and for the State, as it will help them stay in Maine so that once they get their federal work permits, they can get to work right here and help offset the state’s workforce shrinkage.

The asylum seekers, who have been sheltered on an emergency basis at Portland’s Expo, are facing a mid-August deadline to leave the Expo due to that facility’s contractual obligations to the Red Claws basketball team.

However, challenges to moving into more permanent housing have been daunting since the asylum seekers, while legally here, will not be eligible for federal work permits for 180 days after they file their asylum claims, and therefore will be unable to support themselves for months.

Under state law, individuals who are lawfully present in the U.S. or are in the process of filing for an immigration status such as asylum, are eligible for General Assistance, with the state reimbursing 70% of the cost to towns that provide G.A. to them.

Unfortunately, the LePage administration improperly excluded most asylum seekers from G.A. by writing the G.A. regulations implementing the law too narrowly.

Governor Mill’s administration has taken a look at those regulations and agreed that they don’t comply with the statute,  improperly excluding many immigrants who should be eligible for G.A.

Under rewritten regulations, Portland, and any other towns where asylum seekers might settle, should be able to get state reimbursement for G.A. assistance provided to the recent asylum seekers.   This will help towns shoulder the challenge of getting the asylum seekers and their children into stable housing.

The best solution for the asylum seekers would be for federal laws to be revised to allow them to get to work right away.  With Maine’s labor shortages, having people who want to work be legally unable to do so is an affront both to their dignity, and to economic good sense.   Representative Chellie Pingree has proposed legislation that would speed up asylum seekers’ work authorization.  Maine businesses should urge our Senators to support similar legislation in the Senate.

Maine can’t afford to waste human capital, but in the meantime, Governor Mill’s action will help these asylum seekers stay in Maine so that eventually, once they get their work permits, they can get to work right here where they are greatly needed.

On July 17, 2019, the Federal Reserve Bank of Boston published Aging and Declining Populations in Northern New England:  Is there a Role for Immigration?  It’s an interesting (and fairly quick) read.   Some takeaway quotes:

According to Maine’s Department of Labor, the statewide unemployment rate in June 2019 was 3.2%,  a level not seen since November 2000.   Maine’s unemployment rate has been continuously below 4% since February 2016. Only Aroostook and Washington Counties had rates over 4%, at 4.6% and 4.1% respectively, and these rates were lower than the prior year.

While low unemployment is more welcome news than high unemployment, as has been reported previously, the shortage of workers is reaching a crisis point in many of Maine’s economic sectors, from high tech to hospitality.

Immigrants, including those coming here seeking asylum, can be part of Maine’s and the nation’s workforce solution.  We urgently need to reform our federal immigration laws to recognize the nation’s demographic realities, and the strengths that immigrants have always brought, and will continue to bring to our communities and to our economy.

 

As has been reported by MeBIC here and in the mainstream media, in June, a large influx of asylum seekers arrived in Portland after having entered the U.S. from Mexico.   The majority of them are originally from Angola and the Democratic Republic of Congo.   MeBIC has assisted ILAP, Maine’s only nonprofit provider of free immigration legal aid statewide, in conducting legal intake of these asylum seekers to assess their legal needs.   This post will try to answer questions that MeBIC has been receiving about our newest asylum seekers, based on what we know from talking directly with the asylum seekers and our immigration law expertise.

• Q.  Are the asylum seekers in the U.S. legally?

A.  Yes.  All of the asylum seekers are lawfully here, after being processed and released by border officials. The U.S. complies with international laws created after WWII to ensure that never again would anyone fleeing persecution not have a chance to ask for safe haven in another country. In 1939, the U.S. would not let Jews fleeing Europe disembark from the ship St. Louis to seek safety here. The ship was forced to return to Europe, and hundreds of its passengers were eventually killed in Nazi concentration camps. Now, U.S. asylum law lets people apply for protection in the U.S. regardless of how they arrive at or enter the country. While their cases are in process with U.S. Citizenship and Immigration Services (USCIS), or in front of the immigration courts, which may take many years, they are lawfully here.

• Q.  Can they work in the U.S.?
  

A. Eventually. It will likely be about a year before they get their federal work permits.  Federal immigration laws prevent asylum seekers from getting work permits until 180 days after filing their asylum applications with the immigration court. But first, their case files must be sent by border officials to, and must arrive at, the correct immigration courts. Unfortunately, border officials randomly assigned almost all of these asylum seekers’ cases to immigration courts all across the country. They will have to ask that their case files be transferred to the Boston immigration court, the correct court for Maine cases, before they can file their applications for asylum. This will at least double the usual 180 day delay for getting their work permits, and their ability to work.

• Q.  Do they want to work?

A.  Yes.  The recent asylum seekers are eager to work. Due to federal law and the process described above, they are not legally able to work at this time. Many have readily transferable skills, such as accountants, electricians, and engineers, and all of them are eager to do any work that’s needed in Maine and will support their families. All of the adults are of prime working age, with most of them between the ages of 25 and 40. At a time of increasing labor shortages in Maine, it is a wasted opportunity for them, and for Maine’s employers and economy, that federal law forbids asylum seekers from being able to get right to work immediately.

• Q.  What work-related activities and training are they permitted to do they do while waiting for their work permits?

A. There are several work-readiness steps the asylum seekers can take before getting their work permits. First, they can study English and take other courses to help them be work ready, they can volunteer, they can have their skills assessed for transferability, and they can participate in job skills programs that do not require federal work authorization. They can’t receive any compensation for volunteering or training. Under federal immigration law, any kind of exchange for services, including meals or housing, is prohibited.

• Q.  How did they enter the U.S.?

A.  They tried to enter the U.S. legally at a border inspection post.  Unfortunately, for more than a year, the U.S. government has been engaging in “metering”- restricting the number of people who can ask for asylum at the  southern border posts to only a few people each day.   (The government’s use of “metering” is confirmed in this Office of Inspector General report at page 4).  People are given a number by U.S. border officials and are told that they have to wait until their number is reached.  Some of Portland’s asylum seekers entered legally, after waiting more than three months in Mexico, where they had nothing more than tarps for shelter, for their number to come up.  Most of the others waited for about two months before losing hope that their number would ever come up, and then crossed over the Rio Grande, where they turned themselves in to border patrol agents on the U.S. side.  “Metering” is a likely violation of U.S. asylum law and of international human rights laws to which the U.S. is a party.

• Q.  Why didn’t they just apply for asylum at the U.S. embassies in their home countries?

A.  It isn’t possible to get asylum at the U.S. embassies.  Asylum seekers are asking to be legally recognized as refugees, who by definition have been forced to leave their countries due to past persecution or a “well-founded” fear of future persecution.  (In the U.S., “refugees” are people who were processed for refugee status while outside the U.S., typically while in refugee camps.  The U.S. uses the terms “asylum” and “asylum seekers” for people who apply to be recognized as refugees once they are already at a U.S. border post or are in the U.S.)  With limited exceptions that occurred during the Cold War, the U.S. embassies don’t grant asylum.

• Q.  Why did they come to the U.S. through the southern border rather than flying into the U.S.?

A.  It is virtually impossible for someone who is from a country where the U.S. requires a visa (including all countries in Africa) to get a U.S. tourist or other temporary visa if that person is not at least upper middle class and quite wealthy.  Many of the asylum seekers flew to countries in Latin America where visas for entry weren’t required.

• Q.  Why didn’t the asylum seekers just stay in Latin America?

A.  The U.S. is known around the world as a land of freedom, democracy, and opportunity.  Asylum seekers naturally want to go to  a country where they believe they’ll be safe and where they’ll have a chance to provide a future for their children.  The U.S. has long had that reputation.

• Q.  Why did the asylum seekers have to leave their countries in the first place?

A.  Conditions in their countries were intolerable.  After years of civil wars, political repression and civil unrest is endemic in the Democratic Republic of Congo.  In fact, 44% of refugees admitted to the U.S. so far this year are from the DRC.  Learn more here.  Similarly, while there has been a recent change in government in Angola, arbitrary detention and political repression continues, as noted here.

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This Texas Monthly article gives  a glimpse of part of the asylum seekers’ journey to Maine.

UPDATE,  July 11, 2019:   After nearly two weeks of back and forth from the Justice Department lawyers litigating the case and the President, on whether the administration was going to stop pursuing adding the citizenship status question to Census 2020, or going to try to do an end run around the Supreme Court’s opinion blocking the question,  President Trump announced today that he will no longer fight to add the citizenship status question to the Census form.  Instead, he is instructing the government to mine all of its databases to obtain the information about who is a citizen and who isn’t.

This raises a host of issues including concerns about the rationale for this effort and its costs, privacy concerns, and concerns about accuracy.    The President mentioned scouring Department of Homeland Security/U.S. Citizenship and Immigration Services (USCIS), and Social Security databases among others.   But inaccuracies abound in those databases.  For example, a person who immigrated as a child who became a citizen automatically when her parent naturalized would still appear in USCIS’s database as a permanent resident, not as a U.S. citizen.   A person who received a Social Security card while a refugee who has since become a permanent resident and then a citizen will still be in Social Security’s database as a refugee.

Again – query what the rationale is for this effort? Our country prides itself on the ideal of not drawing lines between classes of individuals, even if it frequently fails to meet that aspiration.   This effort feels like the beginning of an official shift to create divisions and treat people differently depending on their status.   Food for thought.

In the meantime, the fight over the citizenship question on Census 2020 reportedly has sown sufficient distrust of the census that there may be a substantial undercount even without that question appearing on the form.

The Constitution calls for all people who live in the U.S. to be counted every 10 years.  It is unfortunate that this prolonged fight may have undermined the Census bureau’s ability to fulfill that mandate in 2020.

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July 3, 2019:  Just days after the Supreme Court ruled that the administration’s stated rationale for adding a citizenship status question to the 2020 decennial census strained credulity and sent the case back down to the lower court, the Justice Department informed that court during a telephonic hearing that the administration was dropping the effort to add the question.   The Secretary of Commerce, in whose department the Census Bureau resides, also issued a statement that the Census Bureau would begin printing the Census 2020 questionnaires without including the question.

The Census Bureau has stated that it needs to begin printing the forms in July to have them ready for the start of the census in 2020.

According to lawyers representing the plaintiffs, the presiding judge in the federal court case requested that the government confirm its withdrawal in writing.  The judge’s caution appears to have been warranted, because less than 24 hours later, according to news reports, President Trump contradicted the Justice Department and his Commerce Secretary, tweeting that the administration would continue its efforts to add the question to the census.

There is expert consensus that adding the citizenship question to Census 2020 would result in a significant undercount of the U.S. population, which would be damaging for all the reasons that we’ve described previously here.

Stay tuned to learn which position will prevail – the President’s or the Justice and Commerce Departments’.

 

 

On July 10, 2019,  the House of Representatives passed H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019 by a 365 to 65 bipartisan vote.  While the bill attempts to solve one problem, it does so at too high a cost.

Current immigration law imposes not only numerical limits on most categories of employment-based immigrant visas issued annually, but also per-country limits.  These have resulted in wait lists for green cards for high-skilled immigrants from certain countries, particularly India or China, that are decades long, harming U.S. businesses in the global competition for talent.   H.R. 1044 would phase in changes leading to elimination of the per country limits by FY 2023.

However, because the bill does not address the overall numerical limits of employment-based immigrant visas, this shift would create untenable wait lists for aspiring immigrants from all the other countries of the world.   Not only they, but also the businesses that seek to employ them, would  be disadvantaged by the effects of HR 1044.

The current waiting list for Indian and Chinese professionals need to be eliminated, but this must be accomplished through a thoughtful overhaul of the numerical limits on immigration, not by shifting the waits from those two countries to immigrants from other countries.   HR 1044 addresses only part, not the whole, of the problem.

Maine’s Representatives Chellie Pingree and Jared Golden both joined the majority to vote in favor of HR 1044.  A companion bill of the same name in the Senate, S. 386, currently has 36 cosponsors from both sides of the aisle, including Maine’s Senator Susan Collins.

Maine’s business community should encourage our Congressional delegation to work for a comprehensive overhaul of our immigration system, not piecemeal solutions that simply shift who bears the cost of the flawed structure.

A July 7, 2019 article in the Portland Press Herald highlights the growing labor shortage impacting Maine’s businesses, particularly those in the hospitality industry and other sectors that rely on seasonal labor.  In case you missed it, you can read it here.

Steve Hewins of Hospitality Maine sounded the alarm in the article, stating “I always refer to tourism as kind of the tip of the spear of economic development, because it’s the thing that introduces people to Maine, perhaps to relocate here, perhaps to move a company here or work here,” he said. “So if we have a problem handling that, it’s going to impact beyond just hospitality.”

Dana Connors, CEO of MeBIC partner the Maine State Chamber of Commerce added that “in a recent survey of about 1,200 Maine businesses….three of the top five problems cited by respondents were workforce-related. The problem isn’t limited to any one industry or region of the state.”

Meanwhile, hundreds of Maine residents holding DACA or TPS status who are living and working here legally have only court orders standing between them and the loss of their legal status and the requirement to leave the U.S.    Nationwide, about 1.1 million others are in their same position.    The House of Representatives passed H.R. 6, the American Dream and Promise Act, that would provide a path to permanent residency for them.   Maine businesses should tell our Senators to take up companion legislation as one step towards stemming Maine’s, and the nation’s demographic and labor crisis.

Additionally, Maine’s recently arrived asylum seekers want to work but federal laws prevent them from doing so for at least 180 days after they apply for asylum.   Maine’s Representative Chellie Pingree has introduced legislation to allow issuance of work permits 30 days after filing for asylum.   Maine needs workers, and immigrants, including asylum seekers, want to work.  Congress should make that happen.