Court Blocks Rule Intended to Eviscerate Right to Seek Asylum

Update:  On January 8, 2021, a federal court issued an injunction blocking the Trump administration’s most sweeping and extreme asylum rule discussed below from taking effect nationwide.

Even should the Trump administration appeal from the injunction before the new administration takes office, it’s possible the incoming Biden administration will move to dismiss the government’s appeal and choose not to defend the new rule.

On December 11, 2020, the Trump administration finalized proposed regulations, slated to take effect on January 11, 2021,  eviscerating the right of those fleeing persecution to have a fair chance to request asylum in the U.S. that Congress had guaranteed 40 years previously.

That law, the Refugee Act of 1980, codified the United State’s obligation to provide those who make it to the U.S. fearing harm or death in their home countries based on their race, religion, nationality, social group, or political opinion with a fair opportunity to seek asylum. The U.S. committed to this obligation in 1968 when it acceded to an international treaty crafted in response to the lessons of World War II.

Since 2017, the Trump administration has waged a virtual war against refugees and asylum seekers.   It has slashed refugee resettlement to the lowest levels since 1980, and raised unprecedented barriers to applying for asylum.  Those include forcing asylum seekers to choose between being reunited with their children or pursuing their asylum claims, compelling them to wait in dangerous conditions in Mexico for their hearings in U.S. immigration courts, using the pandemic as an excuse to not allow them to ask for asylum at all,  and other previously unheard of and draconian policies.

The new final rules continue the assault, both by categorically disqualifying certain grounds for seeking asylum, and by making people ineligible for asylum for reasons unrelated to their claims.  For example, the new rules would generally, with few or no exceptions, deny asylum to any asylum seeker:

  • who has a gender-based claim (including persecution for sexual orientation, gender identity, or domestic violence by actors the state is unwilling/unable to control);
  • who has a claim based on persecution by gangs, criminal organizations, guerillas, or terrorist groups;
  • who transited through more than one country on her/his way to the U.S.;
  • who spent more than 14 days in another country on her/his way to the U.S.;
  • who tried to enter, or entered the U.S. without permission;
  • who entered via the southern border and passed through another country on the way to the U.S.;
  • who lived in a third country for a year or more, even if the person had no possibility of staying legally in that country; and
  • who shows symptoms of, or has recently been exposed to someone with the symptoms of,  a communicable disease that has triggered a public health emergency (such as COVID-19), or who has come from or through a country where our government has determined that a communicable disease is “prevalent or epidemic.”

These are just a fraction of the extensive provisions that the new rules create to prevent asylum seekers from having  a fair chance to seek protection in the U.S.,  and that are completely contrary to the asylum rights created in statute by Congress.

The rules are all slated to take effect in January 2020.  Litigation challenging the new rules is already underway.

The rules are so extreme that it’s likely that the federal courts will block them from taking effect.   The Biden administration also could choose not to defend the new rules in court, or could decide not to appeal should the federal courts strike them down.   Should the new rules somehow survive court review, the new administration would have to go through formal rule making to reverse them, a process that could take at least a year.




Administration Finalizes Rule Undermining H-1B Program

On January 8, 2021, the administration finalized a proposed rule, making no changes, that will prioritize the processing of H-1B cap subject petitions based on how much the positions pay.

The administration received more than 1400 comments on the proposed rule by the December 2nd comment deadline, the vast majority (including MeBIC’s) in opposition for the reasons discussed here.   In hardly more than a month, the administration has finalized the rule, supposedly after giving due consideration to all of the comments received.  Instead, it appears that the administration gave undue importance to the few isolated comments supporting the rule, and glibly dismissed the multitude of comments opposing it.

Unless the federal courts enjoin the rule before then, it will take effect on March 9, 2021.  Although the Biden Administration can reverse the rule, it will have to go through the formal rulemaking process to do so, which will take months, if not a year.

Nearly 100,000 H-2B Positions for 2nd Half of FY 2021 Requested in Three Days

From January 1-3, 2021, the Office of Foreign Labor Certification (OFLC) received employer applications for 96,888 temporary, non-agricultural H-2B visa positions starting on or after April 1, 2021.

Employers’ requests far exceeded the 33,000 H-2B cap-subject visas available for the remainder of FY 2021.   The OFLC will use randomized selection to pick which employers’ applications it will process.

The FY 2021 appropriations bill enacted in December allows the administration to issue up to 69,320 additional H-2B visas for FY 2021.  Should the administration act quickly to release all of the additional visas, every employer who filed during the 72 hour filing window may have a chance of getting their needed temporary workers.  While over the past four years, the administration has released only a fraction of the additional visas that Congress allowed, it’s possible that the incoming Biden administration will release the maximum number.

Despite the pandemic and the resulting increase in unemployed Mainers, many Maine employers could not find enough U.S. workers to fill their seasonal jobs during 2020.   That trend was repeated nationwide, according to a recent analysis.

The Biden administration has signaled its willingness to work on rebuilding and reforming the U.S. immigration system.   It is past time for Congress to work in earnest to enact common sense immigration reforms, including addressing the chronic H-2B visa shortages and other shortcomings of the program.


Court Allows Implementation of Presidential Proclamation Attacking Immediate Family Immigration

On December 31, 2020, a federal appeals court approved the implementation of a Presidential Proclamation barring visa issuance to intending immigrants unable to show either that they can private-pay for their medical care in the U.S. or that they will have unsubsidized health insurance within 30 days after entry.

The Presidential Proclamation, issued in October 2019, had been blocked by court orders while litigation challenging its legality was underway.  Maine was one of several states that sued to strike down the Presidential Proclamation

As MeBIC has noted earlier, this Presidential Proclamation would slash annual immigration by hundreds of thousands annually, with the impact falling hardest on intending immigrant immediate family members of U.S. citizens and permanent residents, and people applying to immigrate after selection in the Diversity Visa lottery.  Immigrants through employment are typically immigrating through professional level jobs that are likely to offer health insurance as an employee benefit.

Due to subsequent presidential proclamations issued during COVID-19 suspending entry of most immigrants to prevent job competition, this court ruling, which would take effect in mid-February, will have little immediate practical impact.   It’s likely that the Presidential Proclamation will be one of many that the Biden administration will reverse within its first 100 days.


White House Extends Entry Bans of Immigrants and Temporary Foreign Workers

The White House announced on December 31, 2020 that the bans due to expire that day on entry into the U.S. of most immigrants, and of many temporary foreign workers,  would be extended through March 31, 2021.  The new Presidential Proclamation’s rationale for extending  the entry bans is to prevent job competition while the economy continues to struggle due to the pandemic.

Previous Presidential Proclamations created a temporary ban against entry of immigrants, originally set to expire on June 24th and extended through December 31, 2020, followed by a ban through December 31st against temporary foreign workers, with exceptions for health care professionals and those working in the food supply chain.

These entry bans keep U.S. citizens and permanent residents from being joined by their immediate family members, and prevent U.S. employers from getting the foreign talent they need despite having  already demonstrated to the Department of Labor that even during the pandemic, they can’t find qualified, willing and available U.S. workers to fill the jobs the foreign workers would be coming to do.

The incoming Biden administration should end these bans.

Omnibus Bill Allows for More H-2B Visas for FY 2021

President Trump signed the Consolidated Appropriations Act, 2021 into law on December 27, 2020, after days of threatening to veto it.  The omnibus bill to fund the government through September 30, 2021, included several immigration provisions.

Division O, Title I, Sec. 105, allows the Department of Homeland Security (DHS) to issue additional H-2B non-agricultural seasonal worker visas for the remainder of FY 2021, following consultation with the Department of Labor and a determination that the needs of American businesses cannot be met with qualified, willing, and able U.S. workers.

The provision will permit DHS to approve up to 135, 320 cap-subject H-2B visas for seasonal non-agricultural jobs for FY 2021, instead of the usual 66,000.

Congress has enacted similar legislation in each of the past four fiscal years’ omnibus spending bills, but each time, DHS has been slow to approve release of the additional visas.  The good news is that this year’s fix was enacted early enough that if fully and quickly implemented, businesses may have improved prospects of getting their seasonal hiring needs met.

The bad news is that in each of the past four fiscal years, while the government could have authorized issuance of more than 69,000 additional H-2B cap subject visas each year, it only authorized  15,000 to 30,000 more H-2B visas instead.

We can hope that the Biden administration will authorize issuance of the full extent of additional visas that Congress approved, to alleviate summer seasonal worker shortages that are likely to exist even if the pandemic is still ongoing.  USCIS posts updates on the availability of cap-subject H-2B visas here.

Once again, however, Congress authorized a fix only for the current fiscal year.  Congress should craft a permanent law increasing the number of temporary H-2B visas available to meet the nationwide need for non-agricultural seasonal workers.  With a new administration that has stated its commitment to work for positive immigration reforms, perhaps Congress and the Biden administration can finally get this done.

Administration Drops its New Immigration Fees Rule

A new U.S. Citizenship and Immigration Services rule increasing many immigration application filing fees will remain blocked indefinitely from taking effect, after the government decided not to continue its appeal of a court order enjoining the rule.

In August 2020, the administration finalized a rule making changes to immigration filing fees, to be effective on October 2, 2020.   The new rule would have substantially increased a wide array of immigration filing fees, ranging from applications by employers for temporary foreign workers, to applications for permanent residency and U.S. citizenship, and first-ever fees for asylum seekers to request asylum and their initial work permits.   The rule would also have made fee waivers for low-income applicants more difficult, and in many cases impossible, to get.

In September 2020, a federal district court blocked the new fee rule from taking effect, and the administration appealed from that decision.

On December 28, 2020, the administration filed a motion to dismiss its own appeal. That leaves the lower court’s injunction blocking implementation of the new fee rule intact, and the prior fees, and fee waiver availability, will continue to be in effect.

This is extremely good news given that the new fees would have put residency and citizenship out of financial reach for many, would have increased costs for employers who need foreign workers, and would have made the U.S. one of only four countries in the world to require asylum seekers to pay to request protection from persecution.

Latest COVID Relief Bill Protects U.S. Families of Undocumented Immigrants

After threatening a veto, on December 27, 2020, President Trump signed the most recent COVID-19 relief package that was attached to the must-pass omnibus FY 2021 appropriations bill that would fund the federal government.

Included as COVID-19 relief were provisions to ensure that mixed-status families, those with U.S. citizen and permanent resident spouses and children of undocumented individuals, will be able to receive the $600 economic impact payments.  The prior CARES Act had made an estimated 5.1 people, including 1.4 million U.S. citizen and permanent resident spouses, and 3.7 U.S. citizen children, ineligible for its economic impact payments of $1200 per adult and $500 per dependent child, if they had an undocumented spouse or parent.

The new relief package does not repeat that CARES Act mistake.  It also provides that U.S. citizens and permanent residents who were excluded under the CARES Act from receiving the earlier economic impact payments will be able to claim those payments belatedly when they file their 2020 tax returns.

COVID-19 impacts the entire U.S. population, regardless of immigration status.  Congress should not penalize families of undocumented workers, for whom the economic payments may delay financial disaster and real hardship while being spent in their local economies, based on whom they love.

In future COVID-19 relief measures, hopefully Congress will also recognize that undocumented immigrants are often essential workers and pay taxes with ITINs – individual taxpayer identification numbers – and should also be included in economic relief payments.

Federal Court Blocks Administration from Applying New H-2A Wage Rule

On December 23, 2020, a federal district  court issued an injunction preventing the administration from applying new Adverse Effect Wage Rate standards affecting farm worker pay rates in non-range positions that took effect on December 21, 2020.

The Office of Foreign Labor Certification announced on December 24, 2020 that it would comply with the order, and that the prior wage rules in effect on December 20, 2020 must be applied to any job orders received on or after December 21, 2020.

COVID-19: USCIS Again Extends Temporary Flexibiility for Hiring H-2A Workers

U.S. Citizenship and Immigration Services (USCIS) issued a temporary final rule once again extending hiring flexibility for certain  H-2A temporary agricultural workers that was first announced on April 20, 2020, and then extended on August 20, 2020.

The temporary final rule recognizes the continuing COVID-19 pandemic, and is effective from December 18, 2020 through December 18, 2023, for any H-2A petitions filed with USCIS between December 18, 2020 and June 16, 2021.   It allows a new employer who has an approved Temporary Labor Certification from the Department of Labor to hire an H-2A worker already legally in the U.S. and working for another employer as soon as the new employer’s extension of stay petition for the worker has been received by USCIS, as long as the hire date is on or after the start date listed on the new employer’s petition.  The temporary rule authorizes employment for up to 45 days, with the inference that USCIS will issue a decision on the employer’s petition before that period expires.

USCIS unfortunately has not yet updated its past guidance for employers about how to complete the I-9 Employment Authorization Verification form in this situation.

Employers hoping to take advantage of these changes can get more details from the temporary rule and should consult the guidance page for updates on completing the I-9 form in this situation, and consult with their immigration counsel.

Filing Window for H-2B Visa Positions for 2nd Half of FY 2021 Opens on January 1, 2021

The Office of Foreign Labor Certification (OFLC) of the Department of Labor announced on December 16, 2020 that the filing window for H-2B temporary non-agricultural seasonal worker positions with start dates of April 1, 2021 through September 30, 2021 will open at 12:00 a.m. EST on January 1,  2021.

Temporary Labor Certification applications received by OFLC from January 1-3, 2021 for H-2B positions starting on or after April 1, 2021 will be randomized for processing, and the number of applications received will be posted each day from January 2-4, 2021 on the Foreign Labor Application Gateway.


One in Five Essential Workers in the U.S. is an Immigrant

Nearly one in five essential workers in the U.S. is an immigrant, according to a new report.  About 23 million of the nation’s essential workforce are immigrants, including 4.3 million undocumented workers.  Sixty-nine percent of undocumented workers perform jobs deemed essential by the administration.

These workers are critical to the nation’s healthcare, agricultural, foodservice and other frontline jobs that help keep the nation healthy and the economy going during the pandemic.

Another report finds that nearly 2.3 million U.S. citizens and permanent residents have undocumented spouses, and 4.4 million U.S. citizen children have at least one undocumented parent.   Despite those immediate family relationships, outdated and punitive immigration laws prevent these undocumented members of U.S. communities from having a path to permanent residency.

While many immigrant essential workers have temporary status under the Deferred Action for Childhood Arrivals (DACA) program or Temporary Protected Status, they have no clear path to remain in the U.S. permanently.

Congress, and the Biden administration, should prioritize making sure that essential workers are including in future COVID-19 relief bills, and that essential workers are provided with new avenues to become permanent residents and to contribute to the nation’s economic recovery.


Analysis Illustrates Cuts in Legal Immigration under the Trump Administration

Using governmental immigration data,  the Cato Institute has issued a summary of the toll that Trump administration policies and application processing have taken on legal immigration to the U.S.   Given immigration’s importance to the economy, the picture the data paints is bleak.

The Cato analysis of the most recent statistics available shows that in comparison to the numbers the U.S. would have experienced had 2016 rates continued during the Trump administration,  since 2017 the U.S. has seen:

  • 738,857 fewer immigrants approved for permanent residency at U.S. consulates abroad;
  • an additional 246,000 fewer immigrants already in the U.S. approved to adjust their status to permanent residency;
  • over 291,000 fewer refugees resettled;
  • 297,000 fewer temporary work and cultural exchange visas issued;
  • 96,000 more asylum denials (which does not include all the asylum seekers forced to wait in Mexico and other asylum applicants who have not even been able to have hearings on their applications);
  • 698,000 fewer international students (international students have long made  up the majority of graduate students in STEM fields at U.S. universities);
  • 9 million fewer tourist and business visitor visas issued;
  • Growing application processing backlogs, with nearly 6 million cases pending before U.S. Citizenship and Immigration Services (compared to 4.3 million in the 4th quarter of 2016) and 1.3 million cases pending before the immigration courts (compared to about 600,000 in Q4 of 2016);
  • a ten-fold increase in decision delays (from 4.7% of all cases in 2016, to over 50% of cases currently that wait more than 7 months for a decision).

Cato concludes

the numbers are clear that President Trump’s immigration policies have irreparably harmed millions of immigrants and Americans. But a new administration will need to go beyond simply reversing his policies to avoid having their effects felt for years to come. New policies would need to allow immigrants to reopen cases wrongfully denied and issue visas and status to them. They should streamline processing these applications to avoid further delaying others. If President Biden’s goal is to rectify the harm of the last four years, he must act boldly and aggressively to fix the numerous problems of his predecessor.

You can read the full analysis here.

Report Concludes More Immigration Needed to Stem U.S. Population Decline

A December 2020 policy brief highlights that the COVID-19 pandemic is exacerbating the nation’s already troubling population decline, which will negatively affect the U.S. economy.  The Mercatus Center finds that

(m)odifying a nation’s birth rate or death rate is a difficult challenge for public policy, and immigration policy is the most obvious tool for policymakers who want to reverse what may prove to be a downward demographic spiral.

The brief cites Census Bureau data showing a steep decline in U.S. population growth, with the population change between 2018 and 2019 being the lowest in numerical terms since 1945, and in percentage terms, since the Spanish Flu year of 1918.  It notes that

(t)hree factors determine the change in any nation’s population over a given time: births, deaths, and net international migration. Behind the sharp decline in the US population growth rate in the past two decades has been a steady rise in deaths per year, a falling number of births owing to an even steeper decline in the birth rate, and declining levels of net international migration, a trend even more pronounced recently in large part because of executive actions by the Trump administration.

The  report indicates that the pandemic is expected to worsen those trends, due to an increased death rate (including nearly 300,000 U.S. COVID-19 related deaths at the date of its publication), a decrease in births by as much 500,000 in a year, coupled with Presidential Proclamations suspending entry of most immigrants during the bulk of 2020.

The U.S. population will shrink without immigration, as is already happening in 27 countries.  The policy brief notes that 55 countries are projected to be shrinking by 2050.  The U.S. was not expected to be in that group due to comparatively robust immigration, but plunging birthrates are changing the U.S. forecast.

The brief adds that demographic decline strains public finances, especially retirement programs, leads to a “less dynamic and innovative economy,” and weakens the U.S.’s influence in the world.

Because birth and death rate trends cannot be easily or quickly reversed, the report finds that increased immigration is the most promising approach to stemming the U.S. population, and workforce, decline.

An important policy objective for the new Congress and administration in 2021 should be to restore immigration to the United States to its levels in recent years before the COVID-19 outbreak and the Trump administration restrictions. The government may maintain temporary public health precautions, but these should be the least stringent possible. Then Congress and the president should work together to increase immigration in a way that maximizes the economic and social benefits thereof.

One goal should be to raise the annual net migration rate to more closely match the higher rates in Australia and Canada, two other advanced economies that have benefited from immigration and have thus been able to slow their own declines in population growth. According to a study from the Mercatus Center at George Mason University, Australia and Canada admit more than twice as many immigrants per year relative to their populations as the United States does. In other words, the United States could double its annual net migration from its recent average of 1 million to 2 million and it would still not match the relative openness to immigration of Australia and Canada.

You can  read the full report here.



Senate Passes Bill that Will Increase Backlogs for High Skilled Immigrants

On December 2, 2020, the Senate passed S. 386, the Fairness for High Skilled Immigrants Act.  The House passed a companion bill, H.R. 2044 in 2019.

Both bills arose because of enormous backlogs for high skilled immigrants that particularly impact talented individuals from India and China.   Low annual  numerical limits on employment-based immigrants to the U.S., combined with per country immigration limits, have led Indian and Chinese professionals already approved to immigrate to wait decades before they can become permanent residents. The bills aimed to reduce these untenable backlogs.

While well intended,  as passed, S. 386 is fundamentally flawed and will do more harm than good.   The current version of S.386 would

  • Fail to increase the 140,000 per year limit on the number of available employment-based green cards – which is the chief reason for the backlogs;
  • Actually increase the green card backlogs for professionals from India and China by as much as 20 years by FY 2030, according to a Congressional Research Service analysis;
  • Cause professional workers from other countries, who currently have no backlog, to wait years to get their green cards (without increasing the 140,000 annual cap, the only way to allot more permanent residency visas to Indian and Chinese professionals is to take them from the overall cap, leaving fewer visas for professionals from other nations);
  • Take over 9 years to fully implement (the original version of the bill would have rolled out in 3 years), while the backlogs continue to grow; and
  • Due to an eleventh hour amendment to the bill, it would discriminate categorically against professionals from China by denying them adjustment to permanent residency status in the U.S. if they’ve ever had any affiliation with the Chinese military or the Communist Party.  Many jobs in China require compulsory party membership, regardless of a person’s ideology, and registration for military service is compulsory.  This amendment hails back to the dark days of discrimination against Chinese citizens, who were denied the right to become U.S. citizens until 1952.  This is morally wrong and economically short sighted, and particularly damaging to businesses already employing Chinese professionals who were counting on them being able to continue their employment as permanent residents.

Countries like Australia, Ireland, Canada and Germany are opening their doors wide to attract more immigrants.   S. 386 would have the U.S. do the opposite.  making it harder for the U.S. to compete for foreign talent, just when we need more immigrants to help with our economic recovery and to overcome our aging demographics.

Some  are urging that S. 386 be attached to the omnibus spending bill that must be passed before year’s end to prevent a government shut down.   MeBIC  vigorously opposes adding S. 386 as passed to the spending bill.

It’s unquestionable that the  problem that S. 386 is trying to solve should be fixed, but in the next Congress, after thoughtful debate.   For more about the effects of S. 386, see this analysis from the Cato Institute.