Author: Beth Stickney

On February 24, 2020, the administration’s new “public charge” regulation took effect, even though its legality is still being legally challenged.

As explained previously, the impact of the new rule will divide families by falling most heavily on intending immigrant immediate family members of U.S. citizens and permanent residents.  It will also affect those selected to apply to immigrate through the Diversity Visa Lottery.  These two populations are likely to see a dramatic increase in immigrant visa and permanent residency denials.

But the rule also applies to anyone requesting an initial nonimmigrant (temporary) visa or admission as a nonimmigrant,  as well as to those immigrating through their employment.  As a practical matter, none of these latter categories are likely to see increases in “public charge” denials.  That does not mean that the new public charge rule won’t affect them, however.

Nonimmigrants and immigrants alike to whom the rule applies will have to answer questions about past public benefits receipt, despite their ineligibility for the benefits at issue in most cases.  For nonimmigrants, these questions will be a nuisance, but not overly burdensome.

However, immigrants, even those immigrating through employment, will now have to answer detailed questions to prove their ability to be self-sufficient.  If they are applying for residency from inside the U.S., they will need to complete the new 18 page USCIS form I-944, and provide documentation not only of their own, but also of their household members’ income,  taxes paid, health insurance coverage, credit reports, assets, debts and liabilities (including credit card debt).  They will also have to list their employment and educational history, even if already provided previously, and document their language proficiency in English and any other languages.  Immigrants applying for an immigrant visa at a U.S. consulate abroad will have to complete the new 4 page DS-5540 form and provide information about health insurance coverage, educational history, income, tax filings, assets and liabilities, but will not have to provide as many documents as those inside the U.S. must.

The new questions, forms, and documentation requirements will substantially increase the time and expense involved in preparing the paperwork for nonimmigrant or immigrant visa issuance abroad, or for immigrant applications in the U.S.   The I-944 form is particularly daunting, with 15 pages of instructions that could confuse many, especially those navigating the process without legal representation.

Estimates are that new rule will lower legal immigration by hundreds of thousands of people annually, particularly U.S. citizens’ and permanent residents’ immediate family members, although the exact impact remains to be seen.

However, two things are certain: the new public charge rule injects a daunting new level of complexity into already complicated immigration procedures, and the U.S. economy, which needs more people, not less, to shore up its aging population and workforce, will suffer as a result of this rule.

 

On February 18, 2020, USCIS reached the 33,000 cap for H-2B non-agricultural seasonal worker visas for positions beginning during the second half of the FY 2020 fiscal year (April 1- September 30, 2020).   You can see the cap count here.  Any cap-subject petitions received after February 18th will be rejected and returned to their petitioning employers.

Congress, as it has done for multiple years now, authorized a potential increase of up to 69,320 H-2B visas beyond the cap for the second half of FY 2020 in its most recent budget bill, H.R. 1865, the Further Consolidated Appropriations Act of 2020, enacted on December 20, 2019.  Despite that authorization being approved  months earlier than in prior years, as of this writing, the administration has yet to release additional H-2B visas, even though the nearly 100,000 H-2B visas  requested during the first three days of January 2020 clearly demonstrated demand far exceeding the 33,000 cap once again.

As we noted here, under revised processing procedures, only about a third of Maine’s employers’ H-2B petitions made it into the first group randomly selected for processing, and it’s likely that fewer than half of Maine’s employers will receive the H-2B visas they requested.

It is past time for Congress to make permanent changes, not year to year cap increases, if employers are to be able to rely on the H-2B program for their seasonal labor needs.

 

A February 2020 report from the U.S. Census Bureau examines the effect on the U.S. population by 2060 if immigration were to continue at current rates,  higher rates, lower rates or if immigration to the U.S. were cut to zero.

Of particular interest is the “low immigration scenario”, which presumes immigration being cut to half of its 2011 to 2015 rates, or roughly to 515,000 new permanent residents iannually.  This scenario is relevant since recent administration policies are putting the country on the fast track to that low annual number, including:

• • reducing the refugee resettlement cap in FY 2020 by more than 90,000 people compared to FY 2017;
  • the recently expanded travel ban:
    • 11,196 citizens from the newly added countries immigrated to the U.S. in FY 2019 who would have been blocked under the expanded travel ban had it been in effect;
  • the existing 2017 travel ban:
    • 25,547 citizens of Iran, Korea, Libya, Somalia, Syria and Yemen immigrated in FY 2016 (the last fiscal year prior to the travel ban);
  • the new public charge rule, effective on February 24, 2020, whose English language proficiency and other new tests may make about half of all family-based immigrants ineligible to immigrate if they cannot show a household income of at least 250% of the annual federal poverty guidelines ($65,500 for a family of four in 2020), resulting in an estimated 300,000 fewer immigrants annually, including spouses of U.S. citizens.

Under its low immigration scenario, the news when considering a vibrant workforce, is somber.  The Census bureau projects:

• • more than 20% of the U.S. population nationwide will be older than 65 by 2026;
  • the number of people over age 65 will exceed those under age by 2031 (others project  Maine will reach that tipping point in 2020);
  • the number of children below age 18 will decline by a million by 2060;
  • total U.S. population will increase by only 16% by 2060

Maintaining current immigration levels, or increasing them,  would delay or mitigate all of these effects.

As this Brookings analysis of the Census Bureau report states, the

projections show that the current level of immigration is essential for our nation’s future growth, especially in sustaining the younger population.

If the U.S. wants to continue to have vibrant communities and a robust workforce and economy, the administration’s trend towards policies that reduce immigration may prove not to be in the nation’s best interest.

 

 

 

Recently released data from the Department of Homeland Security for FY 2018 reveals a 7.35% decline in the number of new permanent residents to the U.S. since FY 2016.  The decline is actually 11% if refugees and asylees, who have been permanently living in the U.S. for well over a year by the time they get their green cards, are subtracted from the total.

The steepest drop in immigration is among family-based immigrants who are the immediate relatives of U.S. citizens and permanent residents.  New permanent resident family members fell by 13.6% from FY 2016 to FY 2018.

A deeper dive into the data is available here.  That January 20, 2020 analysis noted that immigration could further decline by hundreds of thousands fewer immigrants annually if an expansion of the “travel ban”, or if the new expanded “public charge” definition, were to take effect.   Since it was written, the Supreme Court allowed implementation effective on February 24, 2020 of the new public charge rule while challenges to its legality are underway, and the administration announced an expanded travel ban,  effective February 21, 2020.

The  overwhelming brunt of the impact of these two developments will fall on intending immigrant immediate family members of U.S. citizens and permanent residents, and those selected in the annual diversity visa lottery.  While the “public charge” rule theoretically applies to all classes of immigrants,  immigrants through employment are almost exclusively professionals for whom the new English language proficiency and other public charge tests are a non-issue.   And the travel ban expansion applies only to citizens of the affected countries who are immigrating from outside the U.S.   Only a minority  of employment-based immigrants (20% in FY 2018) enter from outside the U.S. to become permanent residents, while a majority of immediate family (64% in FY 2018)  and diversity lottery (98% in FY 2018) immigrants do.

At a time when other industrialized nations with  similar demographic trends to ours of aging populations, declining birthrates, and shrinking workforces, such as Canada, Germany and Japan, are taking steps to increase immigration to their countries for the sake of maintaining healthy economies and communities, the U.S.’s policies decreasing legal immigration deserve close scrutiny.

 

A recent Forbes article analyzing U.S. and Canadian immigration data indicates that international students and professional level immigrants from India are turning their sights to Canada, as the U.S. continues to raise barriers and delays to Indians trying to come to the U.S. to study or to live permanently.

In addition to the factors cited in the article that are reducing the attractiveness of the U.S. as a destination for professional level Indian immigrants is the administration’s intention to revoke a rule allowing wait-listed to immigrate H-1B visa holders’ spouses to get work permits so that they don’t have to put their own careers on hold during the decades Indian H-1B visa holders and their spouses will be waiting. The administration has long signaled its intention to revoke the work permit rule, as we’ve discussed previously, and may issue a proposed rule to that effect in March 2020, according to its Fall 2019 regulatory agenda.

The Forbes article points to Indian immigrants and international students more than doubling in Canada from 2016 to 2018, while their numbers have fallen in the U.S. during the same period, and explains several  contributing factors.  The takeaway:

New restrictions on H-1B visas and international students, combined with long waits for employment-based green cards, make America a less attractive destination than Canada for many high-skilled immigrants and their employers. Based on current trends, the situation is likely to grow worse for U.S. companies seeking to attract talent to America.

In addition, the administration’s trend since 2017 to cut all levels of legal immigration to the country, through dramatically lowered caps on refugee admissions, travel bans, reductions in immigration by members of the immediate families of U.S. citizens and permanent residents, among other measures, does not bode well for the U.S.’s ability to shore up an aging and shrinking workforce, and for the U.S. economy long-term.

 

U.S. Citizenship and Immigration Services announced on January 31, 2020 that employers should begin using its most recent version of the I-9 Employment Eligibility Verification form dated 10/21/2019.  Employers can continue to use the prior version of Form I-9 dated 7/17/2017 through April 30, 2019.

Effective May 1, 2020, employers must use only the 10/21/2019 version of Form I-9.

On January 31, 2020, the White House issued a Proclamation expanding application of the 2017 travel ban, adding six countries whose citizens will be restricted from U.S. visa issuance and entry to the U.S. as of February 21, 2020 due to concerns about the six countries’ identity-management and information-sharing deficiencies.

The countries are Eritrea, Kyrgystan, Myanmar (Burma), Nigeria, Sudan and Tanzania, which are specifically impacted as follows:

Note that immigrants come to the U.S. to reside as permanent residents (“green card” holders) as immediate family members of U.S. citizens or permanent residents, through employment, or after selection in the Diversity Lottery.  Nonimmigrants, who are not banned under the Proclamation, are those coming to the U.S. for temporary purposes, such as visitors, students, or on temporary work visas, among others.

The new ban’s targeting of immigrants, who are closely scrutinized during a long petitioning process, is extremely concerning.   It will result in harming families and employers in the U.S. who will be deprived of their family members and employees.   For example, in FY 2018, 7,345 Nigerians were issued immigrant visas to join their U.S. citizen and permanent resident immediate family members here.   Another 495 immigrant visas were issued to Nigerians approved to immigrate based on employment.

The Proclamation rationalizes its focus on immigrants by stating they are harder to remove from the U.S. than non-immigrants, but that is inaccurate.  Nonimmigrants can apply for asylum and other forms of relief from removal, just as immigrants can.  And, for example, in FY 2018, while 7922 Nigerians obtained immigrant visas to enter the U.S., 221,819 nonimmigrant Nigerians  entered the U.S.   Given the ban’s stated security rationale, targeting only immigrants makes little sense, and prompts questions about the true motivation behind the ban.

The targeted countries, and critics within the U.S., have begun to push back noting not only the harm to families but also the economic damage that may flow both ways.

The new ban does not apply to individuals from the above countries who already were issued visas before the February 21, 2020 effective date, nor to those who are returning permanent residents or who now have U.S. citizenship and are returning from travels abroad using their U.S. passports, or who have dual citizenship and are traveling with their passports from a non-banned country.  Nor does it apply to refugees and those already granted asylum.

The six new countries join seven others who have been subject to the travel ban since December 4, 2017, including Iran (all immigrants and nonimmigrants banned, except for F and M students and J exchange visitors who are subject to extra scrutiny),  Libya (all immigrants and nonimmigrant visitors for business or pleasure banned), North Korea (all immigrants and non-immigrants banned), Somalia (all immigrants banned, and non-immigrants subject to extra scrutiny), Syria (all immigrants and non-immigrants banned), Venezuela (certain government official visitors and their families banned), and Yemen (all immigrants and nonimmigrant visitors for business or pleasure banned).

 

 

 

 

 

 

 

 

 

On January 28, 2019, Penobscot County Commissioners unanimously affirmed that refugees are welcome there.  This is an important message to send in a county whose population has shrunk by 1.8% between 2010 and 2018, and where the unemployment rate is at 3%, a .8% drop from a year ago.

The Commissioners first took up the issue a week previously when asked to consider the issue of consenting to refugee resettlement pursuant to a presidential Executive Order E.O., which would give states and localities veto power over federal refugee resettlement.  As described here, a federal court recently blocked implementation of that E.O.   Because of the injunction, at the January 21st meeting, the Commissioners decided to table the issue to await the outcome of the federal litigation on the E.O.

On January 28th, Penobscot County residents, Bangor’s Maine MultiCultural Center, Catholic Charities Maine, and MeBIC urged the Commissioners to not wait to send the message that the County welcomes refugees.  As MeBIC stated in its letter,

Despite starting with nothing, in a relatively short period, refugees contribute more to the economy in taxes than they consume in public benefits. A draft government report found in 2017 that within ten years of arrival in the U.S., refugees contributed more in taxes than they received in benefits.  A 2017 National Bureau of Economic Research working paper found that within six years of arrival, refugees have higher rates of labor force participation than native U.S. citizens, even if their wages may be lower, and within twenty years of arrival, have contributed $21,000 more in tax payments than they received in public benefits.

Other data indicates that refugees become entrepreneurs at higher rates than U.S. citizens and even than other immigrants, and in 2015, refugee-owned businesses generated over $4.6 billion in business income nationwide. That year refugees also paid nearly $21 billion in federal, state, and local taxes, and had over $56 billion in purchasing power. More refugees are in their prime working years than the native-born population, with over 77% of them of prime working age in 2015, compared to over 49% of native U.S. citizens. Data specifically for Maine’s District 2 indicates that in 2014, more than 750 immigrants, including refugees, owned businesses, and immigrants paid more than $34 million in state and local taxes.

Beyond the data, in communities such as Lewiston, the positive contributions of refugees can be seen clearly. Formerly abandoned storefronts have been revitalized with shops and restaurants started by refugees, and children who arrived as refugees are now college graduates who are participating in every facet of community life, including city government. Maine, and Penobscot County, need, and benefit from immigrants, including refugees.

MeBIC is gratified that the Commissioners responded favorably and unanimously consented to accept refugees, should Catholic Charities ever seek to resettle refugees in Penobscot County’s jurisdiction.  No part of Maine, with our aging demographics and shrinking workforce, and with our humanitarian values, should be sending messages that refugees and immigrants are not welcome.

 

On January 27, 2020, the Supreme Court lifted a nationwide injunction that had blocked the new “public charge” rule from taking effect  while its legality continues to be litigated in the lower federal courts.  This means that even though it might ultimately be struck down, in the meantime the rule can be applied nationwide, except for those immigrating to Illinois, where a statewide injunction remains in place.  UPDATE:  On February 21, 2020, the Supreme Court lifted the injunction affecting Illinois while that litigation is underway, so the new rule will apply nationwide, taking effect on February 24, 2020.

As explained here, the primary effect of the new public charge rule will be to dramatically cut legal immigration to the U.S.  It particularly targets immigrating  immediate family members of U.S. citizens and permanent residents, who ordinarily make up two-thirds of new permanent residents (“green card” holders) each year, by imposing unprecedented new weight to whether a person already is fluent in English, has at least a secondary school education, is older than 18 and younger than 61, has private, unsubsidized health insurance, and has a good credit rating, among other new factors.

A person lacking those factors can overcome them by showing that the household they will be part of in the U.S. has an income of over 250% of the federal poverty guidelines.  In 2018, the most recent year that data is available, half of all households of native-born U.S. citizens had incomes below that year’s 250% level, and data from 2014-2016 shows that 51% of new immigrants during those years lived in households whose incomes fell below the 250% threshold.  Estimates are that the new rule will cut legal immigration to the U.S. by hundreds of thousands annually. The rule’s new requirements fly in the face of centuries of immigration history that amply prove that an immigrant’s lack of high income, education and English fluency at the time of immigration to this country need not be a barrier to eventual success and contributions to the U.S.

To be clear, to meet that 250% threshold in 2020, an immigrating spouse with limited English of a U.S. citizen would have to show that that household of two has an income of over $43,100.   If the U.S. citizen is the sole wage earner, s/he would need to earn $20.72 per hour, working full-time, to meet that threshold.  Similarly, if a naturalized U.S. citizen single mother with two children petitions to bring her 62 year old mother in order to help with the children, the U.S. citizen will have to show that she is earning over $65,500, or $31.49 per hour working full-time, to meet the 250% threshold needed to overcome the negative weight that the rule gives to those over age 61.   Individuals who cannot meet the income threshold will be denied permanent residency.

With the implementation of this rule, the administration will begin drastically cutting immediate-family immigration, something it has tried and failed to do through legislation.  This, at a time when nationwide unemployment is at record lows, and as Maine completes  a record four straight years of unemployment below 4%. 

Litigation on the merits of the public charge rule is still ongoing.  For the sake of family unity, and of a strong economy, we must hope that the federal courts will ultimately find the rule is illegal.

 

In a final rule issued and effective on January 24, 2020, the State Department has created a new presumption that any woman applying for a visa to visit the United States whom a consular officer “has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.”   Unless that “primary purpose” presumption is rebutted, a visa will be denied.

The new rule will give consular officers license to grill visibly pregnant women about their intent in seeking a visa to the U.S., and to make women feel harassed and vulnerable.  It will likely depress tourism from overseas.   Overseas “long haul” travel to the U.S. has already declined in recent years, with the U.S.’s share of that market declining from 13.7% in 2015 to 11.7% in 2018.   This new rule likely will further jeopardize the U.S. share of international travel, an industry that generates billions of dollars of revenue and directly supported 1.2 million U.S. jobs in 2018.

While the U.S. indeed confers citizenship at birth to babies born in the U.S., that citizenship provides no immediate benefit to the parents of the child.   A U.S. citizen cannot petition for her/his parent’s permanent residency until he or she is over 21 years old.   Having a U.S. citizen child also doesn’t provide any automatic protection from deportation to parents lacking legal status in the U.S.

While the rule acknowledges that there are no firm estimates of the extent of “birth tourism,” it claims the new presumption is needed for unspecified national security reasons.  If that is the rationale, the rule is an ineffective measure.  The U.S. routinely issues multiple entry visitor visas valid for five or ten years.  A woman issued a visa when not pregnant could travel to the U.S. years later when pregnant and give birth.  Moreover, the rule won’t apply to women who are citizens of the 39 countries who do not need visas in order to travel to the U.S. to visit for stays of 90 days or less.

For additional comments on the new rule, see this post from the Cato Institute, and a critique by a former chief of the Legal Advisory Opinion section of the Visa Office in the Department of State (paywall).

 

On January 3, 2020, the Department of Homeland Security announced that it will be extending Temporary Protected Status (TPS) for citizens of Yemen through September 3, 2021.   The current TPS period for Yemenis was due to expire on March 3, 2020.

On January 17, 2020, the administration also announced that it will extend TPS for citizens of Somalia through September 17, 2021.  Their current TPS period was due to expire on March 17, 2020.

TPS is offered when the U.S. government determines that civil conflict or natural disaster has created conditions making it inadvisable for citizens of the designated countries who are already in the U.S.  at the moment of the TPS designation to return to their home countries.  Individuals with TPS are allowed to stay and work in the U.S. legally during the TPS period.  Somalia was first designated for TPS in 1991, and was most recently re-designated in 2012. Yemen was first designated for TPS in 2015, and was re-designated in 2017.

Somalis and Yemenis with TPS cannot yet file to extend their status, but can monitor the respective USCIS  TPS-Somalia and TPS-Yemen webpage to learn when USCIS will begin accepting their TPS re-registration applications.

As we’ve posted previously, the  administration has proposed delaying, and in many cases denying entirely, asylum seekers’ ability to get work permits and support themselves while their asylum applications are pending – a process that can take years.

The administration received 1000 comments during the public comment period which ended on January 13, 2020, the vast majority of which opposed the proposed rule.

Mainers were responsible for about 10% of all comments filed in opposition to the proposed rule, making an extremely strong showing,  and demonstrating that Mainers clearly value asylum seekers as members of our communities and our workforce.  Several MeBIC partners and allies were among those who commented to oppose the rule, as was MeBIC.

Governor Janet Mills, and Representative Chellie Pingree were among those who submitted comments opposing the rule.  Representative Pingree’s comment was joined by forty-nine other Members of Congress.  Both of these comments included citiations to MeBIC and the contributions that asylum seekers make to Maine’s workforce and economy.