Month: May 2021

On May 22, 2021, the administration announced that due to severe instability and growing civil unrest, it has re-designated Haiti for Temporary Protected Status (TPS).   The announcement means that eligible Haitians already in the U.S. as of May 21, 2021 may apply for work permits and for permission to remain in the U.S. for the 18 month TPS period.

Haiti was originally designated for TPS in January 2010, after the nation suffered a devastating earthquake.   Haiti was redesignated for TPS on July 23, 2011, and no Haitians who arrived in the U.S. since that date have been eligible to seek TPS.   The Trump administration moved to terminate Haitian TPS, despite officials from the Departments of State and of Homeland Security affirming that conditions in the country warranted continuation of TPS.  Lawsuits challenging the termination ensued, and currently, Haitian TPS holders’ status is valid through October 4, 2021 as a result of the litigation.

This new re-designation will allow both Haitians currently holding TPS  status and those who arrived in the U.S. after the 2011 redesignation to apply for TPS, once the adminstration publishes the official announcement and the application period in the Federal Register.    This new period of Haitian TPS will last through November 22, 2022.

TPS is offered to citizens of countries that the U.S. deems unsafe due to natural disasters or wars and civil conflict, so that those already in the U.S. when the Administration designates their country for TPS can apply to remain and work here legally. It is typically offered in 18 month increments, and has often been extended repeatedly.

This announcement is good news for those Haitians who already had TPS but had to live with the uncertainty of the ongoing litigation, and for those who arrived after July 2018 but who remained in the U.S. because of the challenging conditions in their country that put their safety, well-being, and ability to support their families at risk.   It is also good news for U.S. employers, given the need for more workers as the nation emerges from the pandemic.

The administration announced that on May 25, 2025, it will begin releasing 22,000 additional H-2B visas for workers filling seasonal non-agricultural positions that have start dates prior to September 30, 2021.

Following up on the initial announcement in April 2021, the administration clarified that

(s)tarting May 25, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce.

More details are available in the Federal Register notice and on USCIS’s H-2B Temporary Increase webpage.

While 22,000 additional H-2B visas is better than nothing, the Biden administration is unfortunately following the Trump administration’s pattern of releasing far fewer than the 69,320 additional H-2B visas that Congress authorized for the remainder of FY 2021.

Given the seasonal non-agricultural labor needs in Maine alone, for hospitality, landscaping, and construction workers, let alone across the entire country, 22,000 more visas are a drop in the bucket.   Congress needs to fix this, by removing the 66,000 annual cap on H-2B visas, in order to meet the real demand for labor to fill seasonal non-agricultural jobs in Maine and in the U.S.

An NPR/Ipsos poll released on May 20, 2021 showed continued partisan divides on immigration issues, but also strong bipartisan support for legalizing much of the undocumented population living and working here in the U.S.

The poll, conducted in mid-May 2021, found that regardless of party,  respondents believed the situation at the southern border was either a major or a minor problem, but 71% of Republicans identified it as a major problem, compared to 55% of Independents, and 45% of Democrats doing so.

Despite this, virtually identical numbers of those polled believed that all migrants should be given a chance to enter and apply for asylum (64% of Republicans, 63% of Democrats, and 61% of Independents), and strong majorities, regardless of party, were concerned with ensuring that unaccompanied minors who cross the border receive proper care.

In addition, respondents continue to support providing a pathway for undocumented individuals to gain permanent residency.  Republicans supported a path to residency for farmworkers by 61%, for those with temporary protected status (TPS) by 60% and for those who came to the U.S. as children by 54%.  Democrats favored legalizing farmworkers by 85%, those with TPS by 83%, and those who arrived as children by 83%.  Independents supported a path to legal status for those three categories by 71%, 68%, and 63% respectively.

With undocumented immigrants already part of our communities and our workforce, and with low population growth, declining birthrates, and an aging population that depends on younger workers to help fund Social Security for retirees, the bipartisan support for legalizing Dreamers/DACA holders, farmworkers, and those with TPS underscores that Congress should prioritize getting immigration reform passed in 2021.

In October 2020, the Trump administration issued an interim rule to take effect on December 7, 2020, with no prior notice and comment opportunity, that substantially changed longstanding definitions of speciality occupation and qualifying job placements.  The intention was to substantially undermine the H-1B professional level visa program.

A federal court enjoined the interim rule.   On May 19, 2021, the Department of Homeland Security issued a final regulation revoking the prior administration’s interim regulation, in compliance with the federal court order.

This action restores some certainty for employers who are seeking the best talent they can find, even if they happen to be citizens of other countries who need to obtain H-1B visas to be legally employed.

Effective May 17, 2021, USCIS will suspend the taking of biometrics for those applying to extend or change to H-4 or L-2 visas as spouses of H-1B specialized knowledge and L-1 multinational company employees, as well as for those applying for extensions of, or change to the E-1, 2, or 3 visa categories.

These categories of applicants historically have not had to appear in person to have their fingerprints and other biometrics taken.  The biometrics requirement was initiated by the Trump administration in early 2019.  Since then, processing backlogs in these categories have been punishing, resulting in lawsuits against the Trump administration that are still ongoing, filed on behalf of H-4 and L-2 visa holders whose employment authorization was dependent upon approval of the underlying visa change or extension request.   Thousands of H-4 and L-2 spouses nationwide have  lost their jobs, and their ability to access or maintain ancillary benefits such as driver’s licenses, as a result of  the processing delays.

The temporary suspension of biometrics will apply to applications pending as of May 17, 2021 where a biometrics appointment has yet to be made, and to new applications filed on or after that date, and will remain in effect through May 17, 2023.

The Migration Policy Institute published a new report proposing how to revamp the nation’s immigration system to better meet our current, and future, demographic and economic needs.

The report starts with a reminder that the current immigration framework was last substantially updated more than 30 years ago.   At that time, Congress imposed strict, unrealistically low limits on employment based non-immigrants (the 85,000 yearly cap on bachelors and masters degree or higher specialized knowledge H-1B visas, and the 66,000 annual cap on H-2B seasonal agricultural worker visas), and per-country immigration limits that have resulted in decades long waits for immediate families to be reunified and for skilled talent to be able to get their permanent residency to work for the employers who petitioned successfully for them.    Economically speaking, 1990 was light years away from the current internet and knowledge based global economy that we take for granted today.  The U.S.’s immigration system  is completely out of step with the nation’s current demographic and economic realities.

The report walks through the current challenges facing the nation, and proposes thoughtful solutions for what a new immigration framework could look like.

You can read the full report here.

The Biden Administration has issued a Presidential Proclamation revoking an October 2019 Presidential Proclamation that barred immigration from abroad by individuals who could not show that they already had health insurance in the U.S. or would be able to obtain it within thirty days of arrival.  Health insurance via the Affordable Care Act was not allowed to satisfy the requirement.

As explained in this prior post, since most employment-based immigrants work in professional positions with employer-provided health benefits, the proclamation was aimed at slashing immigration by immediate family members of U.S. citizens and those immigrating through the Diversity Visa program.   Estimates were that the rule would slash immigration by as much as 65 percent, ignoring the fact that new immigrants become workers, taxpayers and contributing members of their communities.

The full effect of the rule was never felt, first because implementation of the Trump era proclamation was temporarily blocked by a federal court order.  Then, due to COVID-19, the Trump Administration blocked virtually all immigration from abroad ostensibly to prevent job competition.  That bar to immigration was not lifted until after the Biden administration assumed power.

Revocation of this health insurance requirement is welcome news for an aging nation with shrinking  birth rates, that  must have immigration if it is to maintain vibrant communities and a workforce numerous enough to meet the needs of U.S. employers.

The CARES Act, enacted in May 2020, provided relief to U.S. colleges and universities via the Higher Education Emergency Relief Fund, but mandated that at least 50% of the funds should be used to “provide emergency financial aid grants to students for expenses related to the disruption of campus operations due to coronavirus (including eligible expenses under a student’s cost of attendance, such as food, housing, course materials, technology, health care, and child care).”

The Biden administration has announced that colleges and universities can distribute this aid to students regardless of their immigration status.   This revises the prior administration’s interpretation that only students whose status would qualify them for federal financial aid – chiefly U.S. citizens, permanent residents, refugees and asyleees, could receive CARES Act relief from their higher education institutions.  Under that narrower interpretation, college students with DACA (Deferred Action for Childhood Arrivals) and undocumented students were ineligible for aid.

Currently, at least 19 states allow undocumented students who are residents of their states to pay in-state tuition at  public universities, and 7 states allow undocumented students to qualify for financial aid, including California and Texas, two states with large undocumented populations.   Higher education can be a path to specialized skills that will enable DACA and undocumented young adults to have an eventual path to permanent legal status.

The Biden administration’s policy change will simplify the process for higher education institutions to distribute COVID relief funds  by removing the necessity to parse the legal status of their students in need.  Taking steps to make sure that all students can succeed in their pursuit of a college or graduate school degree makes good humanitarian and economic sense.

The Biden administration announced it is revoking a Trump administration regulation aiming to end the “International Entrepreneur”  (IE) program established by the Obama administration.  The Trump administration issued a regulation to revoke the program, but a federal court order blocked that regulation, and the program has been in effect since 2018.

The Biden administration has now formally withdrawn the Trump era rule aiming to revoke the IE program.

The IE program was instituted to allow international entrepreneurs to have a legal means to be in the U.S. in order to  “create and develop start-up entities with high growth potential in the United States.”   Revoking the regulation that would have eliminated the program takes away a cloud that hovered over it and ensures that promising entrepreneurs, including international students who have pursued graduate degrees in STEM fields in U.S. universities will have a case-by-case chance to stay in the U.S.  in order to launch new enterprises.

You can find more details about the IE program here.

The National Federation of Independent Business issued a report  on May 7, 2021 noting that April was the third straight month of record unfilled job openings in small businesses.

A “record 44% of all small business owners report having job openings they could not fill, 22 points higher than the 48-year historical average, and two points higher than the 42% figure from March.”

The report also states:

• Eight percent of owners cited labor costs as their top business problem and 24% said that labor quality was their top business problem, the top overall concern.
• Firms increased employment by 0.31 workers per firm on average over the past few months. Thirty-seven percent have openings for skilled workers and 20% have openings for unskilled labor.
• Forty-four percent of the job openings in construction are for skilled workers, up four points from last month. Fifty-eight percent of construction firms reported few or no qualified applicants.

The report is yet another argument for Congress to reform and update the nation’s immigration laws so that the U.S. can remain a competitive economy and have vibrant communities.

In 2020, CDC data show that U.S. birthrates declined by 4%, to the lowest rate since 1979.   The steepest decline was 7% in December, the first month that babies would have been born after the onset of the COVID-19 pandemic in the U.S.

The fertility rate also dropped 4% in 2020 to the lowest rate ever, and at 1,637.5 births per 1000 women, is far below the 2.1% fertility rate needed to maintain population “replacement levels.”

While that December 2020 birthrate drop may be a case of correlation, not causation, the lower number of births conforms with predictions by Brookings that U.S. births might fall by 300,000 in a year due to the  pandemic.

Coupled with the 2020 decennial Census data showing the second-slowest U.S. population growth rate in a decade since the Census began in 1790, it’s clear that if the U.S. is to have a robust workforce to meet the country’s economic needs as more Baby Boomers retire, the U.S. urgently needs to grow its immigrant population.

Congress must act this year to update the nation’s immigration laws to open to tap and allow immigrants already here to legalize, and to speed up and expand immediate yfamily and employment based immigration.

After flip-flopping in April, the Biden administration announced on May 3, 2021 that it will carry out its earlier promise, and raise the refugee resettlement cap for FY 2021 to 62,500 refugees.

The Trump administration had set the cap on refugee admissions to the U.S. for FY 2021 at 15,000, the lowest cap since the enactment of the Refugee Act of 1980.

President Biden stated repeatedly while campaigning that he would raise the refugee resettlement cap to 125,000 per year, the highest level since the Clinton administration.  Soon after his inauguration, the President said that he would raise the cap for the remainder of the current fiscal year to 62,500 from President Trump’s 15,000.

After delays and some back and forth, Biden appears ready to make good on his promise of resettling 62,500 refugees before September 30, 2021.

This will be welcome news to the refugees who have been extensively vetted and were just waiting for the final nod to travel to the U.S., and also for the communities that will welcome them.

This is also good news for Maine, which had actually resettled only one refugee during the current fiscal year as of April 30, 2021, compared to 650 in FY 2016.   For decades, refugees have been a consistent source of in-migration to Maine, but refugee resettlement in the state dwindled to a trickle during the prior administration, even before the pandemic.  The Biden administration’s new number for the rest of FY 2021, coupled with the promised 125,000 refugees in future fiscal years, bodes well for an influx of refugees to Maine to help strengthen our communities and workforce.