Biden Administration Signals Immigration Regulation Changes

The Biden administration released its regulatory agenda on June 11, 2021 which includes upcoming reforms to several immigration regulations.

The agenda signals reforms to regulations affecting asylum processing, including rescission of harsh provisions, many of which have been blocked by federal courts, imposed by the Trump administration; creating increased availability of “premium processing” fees for more types of applications in order to provide needed funding to USCIS and faster processing; and strengthening the viability of the DACA program for those who arrived in the U.S. as children, among many others.

The regulatory agenda appears to be taking definitive steps to roll back many of the regulations issued by the prior administration that were designed to reduce immigration to the U.S. by all categories of immigrants, whether through humanitarian channels, immediate family, or employment.

Full details won’t be available until the rules themselves are eventually published in the Federal Register.

Immigration Needed to Meet Demand for Highly Skilled Workforce

The New American Economy issued a recent report finding that despite the economic effects of the pandemic, the U.S. doesn’t have enough workers to fill high skilled positions.

In computer-related and math fields, the unemployment rate in 2019 was at 2.3%, and rose only slightly during 2020, to 3%.  But in 2021, that rate had dropped back down to 1.9%, indicating job growth in fields requiring these skills as the U.S. emerges from COVID-19.

Unemployment rates for health care professionals was only 2% by December 2020 and the pandemic expanded the need for healthcare workers, a trend expected to continue, given both the pandemic and the nation’s aging population.

The report concludes that

despite the economic disruption caused by the Covid-19 pandemic, high-skilled and specialized workers remain in high demand across the U.S. …..However, America’s increasingly protectionist immigration system dissuades employers from seeking much-needed labor, even when it cannot source talent domestically. Instead of allowing for easier recruitment and attraction of workers in fields that have chronic labor shortages, such as in technology and healthcare, or in geographic areas where demand for labor outstrips supply, U.S. immigration policy remains largely a one-size-fits-all system. Given that high-skilled workers tend to work in high-tech industries, which tend to be more productive and faster growing, not allowing employers to fill critical gaps in their workforces effectively keeps them from fulfilling their full economic potential for the rest of the U.S. economy. This suggests that more nuanced and responsive policy around employment-based immigration could be one way to help the U.S. more quickly and more robustly bounce back from the Covid-19 and future economic disruptions and crises.

You can find the full report here.

Supreme Court Ruling Heightens Need for SECURE Act’s Passage

On June 7, 2021, the U.S. Supreme Court ruled that being granted Temporary Protected Status (TPS) does not equate with having been “admitted” to the U.S. for purposes of being able to get residency from within the U.S.

The ruling affects TPS holders who originally entered the U.S. without being inspected at a border post, who become eligible to apply for permanent residency, typically as the parent of an over 21 year old U.S. citizen child, or as the spouse of a U.S. citizen or permanent resident.

With few exceptions, to be able to “adjust status” to permanent resident in the U.S., one must have been “inspected and admitted.”  A person ineligible for “adjustment” must instead have an immigrant visa interview at the U.S. consulate, ordinarily in their home country.  For a person who has lived in the U.S. for more than a year without legal status prior to getting TPS, departing the country to go to the consular interview will trigger a 10 year bar to returning to the U.S.  It’s possible to apply for a waiver of that 10 year bar, but it’s extremely complicated and difficult to get.  If that same person could “adjust status,” the 10 year bar wouldn’t be triggered and the process of being approved for residency would be relatively smooth and uncomplicated, without the prospect of prolonged family separation and emotional and economic hardship.

The Supreme Court’s ruling reversed a lower court’s finding that the language of the TPS statute allowed a person granted TPS to be treated as having been admitted to the U.S. and eligible to “adjust status” even if the person originally entered the U.S. without inspection.

The U.S. has nearly 320,000 individuals with TPS, and that number will grow exponentially with the recent decisions expanding TPS eligibility to individuals from Burma (Myanmar), Haiti and Venezuela.  Over 250,000 of them are Hondurans and Salvadorans who have been here for more than 20 years, who are parents to U.S. citizen children who may be approaching the age of 21 when they can legally begin the family-based immigration process for their TPS parents.  The recent Supreme Court decision means that most of these TPS parents will have to consular process and face the prospect of the 10 year bar to returning.

TPS holders now have deep roots in this country, with many having lived in the U.S. longer than they lived in their home countries.  They have families and employers who depend upon them.  Having TPS holders face the 10 year bar in order to finally gain permanent residency benefits no one, except perhaps the immigration lawyers they’ll need to hire in hopes of preparing a successful waiver application.

The SECURE Act (S. 306) would allow the vast majority of TPS holders to apply for permanent residency if they have lived here continuously for at least three years and pass all criminal history and national security checks (which they have had to pass each time they register for TPS).  Given the deep roots that hundreds of thousands of them have in this country and their importance to the U.S. workforce, providing them with an independent path to residency without the need to depart the U.S. is both humane, and the economically smart move.


FY 2021 Additional H-2B Visas Nearly Exhausted in Just 5 Days

USCIS announced on June 3, 2021 that of the 22,000 additional H-2B visas available for seasonal non-agricultural workers filling jobs starting before September 30, 2021, the 16,000 visas reserved for returning H-2B visa holders have already been exhausted.

USCIS began accepting new employer petitions on May 25, 2021, and in only five business days, more returning workers H-2B visas  had been requested than the 16,000 cap allowed.  Petitions received  for returning H-2B workers after June 1, 2021 will be returned by USCIS to the petitioning employers.

An additional 6,000 H-2B  visas are reserved for workers who would be coming from the Northern Triangle countries of El Salvador, Guatemala, and Honduras.   Employers who hope to get H-2B workers from these countries must file their petitions by July 8, 2021.

More information about the additional FY 2021 H-2B visas can be found here.

U.S. Chamber Highlights Immigration Reform as Workforce Shortage Solution

On June 1, 2021, the U.S. Chamber of Commerce  announced its America Works Initiative to address the nation’s crisis-level workforce shortages that will only get worse with inaction.  Its four point America Works Agenda includes expanding the workforce through immigration reform.

The U.S. Chamber urges concrete steps to advance its immigration reform agenda, including supporting passage of the Dream Act, the SECURE Act, and the Farm Workforce Modernization Act, currently needing  Senate action.   Their counterpart versions have already passed in the House of Representatives, and need 60 votes for Senate passage.    Between them, these bills will legalize about 4 million immigrants who are already contributing members of our communities and workforce, including many who have worked in essential jobs throughout the COVID-19 pandemic.

As part of its America Works Initiative, the U.S. Chamber also issued its Quantifying the Nation’s Workforce Crisis report that analyzed over 20 years of data  and conducted surveys, looking for hiring and growth trends and identifying workforce challenges and the hardest hit industries, to better inform policy discussions to find solutions.

Unsurprisingly, the data reveals a sharp drop in the last decade, well before the pandemic, in the ratio of available workers for every job, from manual labor  to those entailing high levels of education.  This was borne out in the surveys, where nearly 90% of employers said they were having difficulty, or finding it very difficult, to find workers.   Over 90% of respondents said labor force issues were the number one challenge crimping growth.

The America Works Initiative‘s immigration policy agenda also addresses needed reforms for employment based immigrant and nonimmigrant visas, in addition to urging passage  of the Dream, Secure, and Farm Workforce Modernization Acts.

But having already been passed in the House, the latter three bills present the most immediate chance for action, and represent an urgently needed first step to allow millions of immigrants to gain a path to permanent status that will give them security and the ability to unleash their full potential in the U.S.

Maine’s Senators’ support and leadership will be crucial to these bills’ prospects for passage, as well as for the success of badly needed broader immigration reforms.

Learn more about the Iniative here.