Author: Beth Stickney

On January 15, 2020, a federal court in Maryland issued a preliminary injunction blocking President Trump’s September 26, 2019 Executive Order (E.O.) giving states and localities veto power over refugee resettlement in their jurisdictions.   The court found that the plaintiff refugee resettlement agencies had shown a likelihood of succeeding on the merits of their legal challenge to the E.O.

The administration had already decided to cap the number of refugees that would be resettled in the U.S. in FY2020 at 18,000, the lowest level by far since 1980, and a dramatic drop from the 118,000 cap in FY 2016.  But the E.O., by requiring express written consent from states and localities before any refugees could be resettled in their midst, further undermined the Refugee Act of 1980’s commitment to resettle individuals forced to flee their countries due to persecution.

Prior to the injunction, governors of 42 states had granted their consent, including Maine’s Governor Janet Mills, as explained here.  But on January 10, 2020, Texas’s Governor Greg Abbott became the first to deny consent, even though Bexar and Dallas Counties, home to San Antonio and Dallas-Ft. Worth, respectively, had confirmed they wanted to continue welcoming refugees, both as a humanitarian imperative, and because of the contributions that refugees make to their communities.

With the preliminary injunction, refugees can be resettled in Texas and nationwide, while litigation on the legality of the E.O. continues.

As discussed here, the administration proposed a change to one of the nation’s oldest immigration regulations, the “public charge” rule, by imposing new criteria by which those immigrating to the U.S. will be assessed for the risk that they may become public charges in the future.  Among other changes, under the new rule, immigrants who do not already have a strong command of English,  at least a high school education (including those who are too young to have completed high school), a job lined up prior to immigrating, and who are unable to offer the counterweight of a household income exceeding 250% of the annual federal poverty line would be denied residency in the U.S.

Before the new rule was due to take effect on October 15, 2019, several federal lawsuits were filed, and five federal district courts issued rulings blocking its implementation while challenges to its legality are underway.  The administration appealed those decisions, resulting in two appellate rulings lifting the respective lower court injunctions.

On January 7, 2020, the 2nd Circuit Court of Appeals heard the government’s request to lift one of the nationwide injunctions, but its subsequent ruling left the nationwide block of the new public charge rule in place.

On January 13, 2020, the administration asked the U.S. Supreme Court to lift the nationwide injunction, allowing the new “public charge” rule to go into effect while its legality is challenged.

Estimates are that were it to take effect, the new public charge rule would slash immediate family immigration by more than 50%.  Immediate family immigrants make up about two-thirds of annual immigration to the U.S., and are the majority of immigrants who arrive in Maine each year.

As noted here, net legal immigration to the U.S. dropped dramatically between 2016 and 2019.  Implementation of the public charge rule could lead to about 400,000 fewer people successfully immigrating to the U.S. annually, at a time when our population is aging or dying and leaving the workforce, and our birthrates are low.  Immigrants are crucial to stem the nation’s shrinking labor supply and to keep our communities and economy vibrant.

This case at the Supreme Court will be one to watch.

 

As noted here, net immigration to the U.S. declined last year, contributing to the nation’s lowest rate of population growth, only 0.48%,  in decades.

An analysis from the Brookings Institution indicates that in fact, that is the lowest rate of U.S. population growth since 1918.  Looking at the rate of population growth for the past decade, Brookings found that

The 2010s was a decade of fewer births, more deaths, and uneven immigration…. The 2018-19 period had an exceptionally low growth rate of 0.48%, with immigration declining to 595,000 people—the lowest level since the 1980s—and a drop in natural increase to below 1,000,000….While immigration may have been unusually low due to recent federal restrictions which led to a decline in the noncitizen foreign-born, relatively low natural increase levels are likely to persist due to the aging of the population.

One symptom of the aging population is the decade-wide loss in young people under age 18. Between 2010 and 2019, the nation sustained an absolute decline of 1.14 million youth.

Canada faces similar challenges due to declining fertility rates and an aging population.  However, in contrast to U.S. policy in recent years which has constricted legal immigration, Canada has put policies in place to aggressively boost immigration.

As a result, in 2019, Canada, with its population of approximately 37.8 million, added a net 437,000 immigrants, or 1.16% of its population, “its fastest population increase in 30 years, even with declines in fertility” according to a report in Bloomberg.

Canada’s immigration-driven population boom has been one of the few bright spots for the economy, credited with supporting the labor force and the housing market. Without the population increases, the country would be tracking much slower growth given productivity gains have remained weak for years.

The article notes that while U.S. economic growth in 2020 is forecast to exceed that of Canada’s, one economist surveyed speculated that Canada’s robust immigration growth may help it surpass expectations.

As the Brookings analysis indicates, with the natural decrease in U.S. population due to declining birth rates and an aging population,

immigration will become an increasingly important contributor to America’s health moving forward. As the country faces continued population stagnation, the 2020s will become a crucial period for understanding the role of immigrants in our economy and society.

It will be interesting to see what the future reveals about which country’s approach to immigration best leads to positive economic outcomes.

 

In late September, 2019, President Trump announced both that the U.S. would cap refugee resettlement at 18,000 during FY 2020, the lowest number by far since passage of the Refugee Act of 1980, and also issued an Executive Order creating an unprecedented new requirement that states and localities consent to refugee resettlement, as described here.

On December 16, 2019, Maine’s Governor Janet Mills gave Maine’s consent to continue participating in refugee settlement, as Maine has done for forty years.  Localities also have to consent, and the process of obtaining their consent is well underway.  However, even if localities in Maine wanted to continue resettling refugees, under the Executive Order, without the Governor’s consent, they could not do so.  As of January 10, 2020,  42 states’ governors have given consent to resettle refugees in their states in FY 2020, with only Texas’s Governor Greg Abbott failing to do so.

MeBIC applauds Governor Mills for reaffirming Maine’s commitment to helping individuals who have had to flee persecution start their lives anew in safety here in Maine, and for her acknowledgement of refugees’ positive impact on the fabric of Maine’s communities and economy.

On a separate tack, the Executive Order’s legality has been challenged by three of the leading nationwide refugee resettlement agencies, Hebrew Immigration Aid Society, Church World Service, and Lutheran Immigration and Refugee Service .  Oral argument in a federal court in Maryland was heard on January 8, 2019 regarding whether the consent requirement will be blocked while litigation on its legality is underway.  A decision is expected imminently on the request for an injunction.

 

As discussed here, the Office of Foreign Labor Certification (OFLC) received applications for nearly 100,000 non-agricultural seasonal positions from employers hoping to obtain H-2B visas for the second half of FY 2020 beginning April 1, 2020.   The OFLC went through a random selection process to assign the applications to several groups.

On January 8, 2019, the OFLC published the list of random group assignments.  Employers also received individual notices of their group assignments.

Group A includes applications for enough worker positions to exhaust the 33,000 H-2B visa cap for the second half of FY 2020.   Subsequent groups include applications covering up to 20,000 positions.  Applications in Group A will be reviewed first, and only if there are sufficient applications that appear  to not be approvable so that the cap will not be reached will OFLC start reviewing applications in Group B.   Applications in Group C will be considered only if the cap has not been reached after reviewing the applications in Group B, and so on, through Group E.

While the list confirms that many Maine employers filed applications to initiate the H-2B visa process for prospective seasonal employees, a review of the list shows that barely a third of positions sought by Maine employers made it into Group A.   Forty-six percent of Maine’s seasonal positions are in Groups C through E and are very unlikely to get in under the H-2B cap.  The employers who filed those applications are likely to need to look elsewhere for staffing for their seasonal positions starting between April 1st and September 30th, 2020.

Once again, the H-2B visa program will be inadequate to the task of ensuring that Maine’s employers have sufficient employees for their non-agricultural seasonal labor needs.  Congress needs to substantially raise the cap on H-2B visas, or remove the cap altogether.

Midnight of the morning of January 2, 2020 marked the beginning of a three-day window for  employers seeking to use the H-2B visa program to file their applications with the Office of Foreign Labor Certification (OFLC) for seasonal, non-agricultural positions with start dates of April 1, 2020 to September 30, 2020.

Within the first 24 hours, OFLC had received nearly 5000 applications for over 87,000 H-2B visas, far more than the  33,000 H-2B cap-subject visas available for the second half of FY 2020.  By the end of three day filing period, that number had risen to 99,362 positions from 5,677 applications, according to the OFLC.

All applications received from January 2nd through January 4th, 2020 have been randomly selected into processing groups for review, as explained here.    On January 8th OFLC will publish the list of processing group assignments, in addition to sending written notices to individual employers that filed applications.

While the administration has  tried to improve the filing procedures in the past year, the fundamental inadequacy of the the visa cap continues to thwart employers who need predictability in order to ensure sufficient staffing for their non-agricultural, seasonal  hiring needs.

No doubt Congress will once again, as it has in the past several years, pass legislation authorizing additional visas for the current fiscal year, but what employers actually need Congress to do is enact a permanent substantial increase or elimination altogether of the annual H-2B visa cap.

 

Germany, often considered the economic engine of the European Union,  is facing demographic challenges, including an aging population, rising death rates, and low birthrates, that are causing labor shortages which are only projected to worsen during this century.

Germany is now joining the ranks of countries, such as Canada and Japan, addressing its demographic challenges through legal reforms to attract more immigrants in an effort to shore up its shrinking worforce.  On March 1, 2020, the Skilled Immigration Act will take effect to attract new immigrants interested in living and working permanently in Germany who will help strengthen the country’s economy.

Among other features, the new law redefines “professional” to include not just higher education graduates, but also those with vocational skills who have completed training courses of at least two years’ duration.  Professionals will need to have their qualifications recognized by Germany but won’t need to have a job offer in order to relocate.  They can  get a six-month residence permit in order to look for a job in fields related to their qualifications, even if there is no skills shortage in Germany in those fields.   A key change is the elimination of the requirement, that also exists in the U.S.,  for verification that no qualified German worker is available to do the job before an employer can hire a foreign professional.  Foreign professionals with employment will be eligible for permanent residency after four years.   The law also makes it easier for foreign students who come to Germany to pursue university degrees or vocational training, to get residency.  This post explains the new German law in more detail.

In 2012, Germany made a less aggressive attempt to attract foreign talent, but it fell short in part because it aimed only at those with the equivalent of bachelors or higher degrees, while the German economy also needs workers in jobs that don’t require that level of education.

The United States faces similar demographic challenges to Germany, Canada and Japan.   Yet the administration and Congress have failed to make serious efforts to substantially reshape the U.S.’s outdated immigration laws.  Canada has experienced record increases in immigration since enacting its immigration reforms.

It will be worth watching Germany to see if the Skilled Immigration Act produces similar results.   If so, policy makers in Washington D.C. should consider following these countries’ leads and act to substantially reduce current barriers to immigration, particularly for foreign students who obtain their higher education at U.S. institutions, to ensure that the U.S. can maintain a robust workforce and a strong economy.

 

The U.S. Census Bureau released population estimates on December 30, 2019 indicating that U.S. population growth slowed between 2018 and 2019.  The report notes that population growth is a fixture of natural growth due to births, plus immigration to the U.S.   The report notes that

(i)n 2019, natural increase dropped to 957,000, marking the first time in at least four decades that it slipped below a million, continuing the trend toward fewer births and more deaths.

International migration, the other source of population growth, has been gradually declining each year since 2016. Between 2018 and 2019, the nation’s population increased 595,000 due to net international migration, compared to 1,047,000 in 2016.

USCIS data for FY 2018 (the most recent full year available) shows a 7.34% decrease in new permanent residents (“green card” holders) since FY2016.  As the U.S. population continues to age and retire from the workforce, and fertility rates decrease, immigration is a key source of new population, and this downward trend should cause concern.

As this recent commentary in the Wall Street Journal notes, the nation’s demographics, coupled with declining immigration, may spell trouble for the country’s continued economic growth.

At midnight on January 2, 2020, employers hoping to bring H-2B non-agricultural workers to work in seasonal positions starting between April 1 – September 30, 2020 can begin the filing process.

As usual, there are only 33,000 H-2B visas available for non-cap exempt positions during the second half of FY 2020. To avoid having their system crash, as happened a year ago, the Office of Foreign Labor Certification (OFLC) has advised that all applications received during January 2nd, 3rd and 4th will be randomly selected  for consideration towards the cap, and there is no advantage to trying to file right at midnight on January 2nd.

The OFLC has provided a slide presentation and a webinar video with filing tips for employers hoping to meet their seasonal hiring needs with H-2B visa workers.

Even with the filing procedure modifications, many Maine employers vying for any of the 33,000 available H-2B visas are likely to find themselves shut out.  Employers seeking details about which workers are cap-exempt can check here.

Congress should enact a permanent and substantial increase in the number of H-2B visas so that employers can look to the program as one that can be relied upon to meet their seasonal labor needs.  With unemployment hovering near 3.5% nationally, and at 2.8% in Maine (where it has been below 4% for a record 4 years), there is no excuse for inaction.

Tucked into the National Defense Authorization Act for FY 2020, enacted on December 20, 2019, was a provision enabling most Liberians present in the U.S. since at least November 20, 2014 to apply for permanent residency prior to December 20, 2020.

Many Liberians in the U.S. have had either Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) since 2002, and some have held those statuses since the early 1990s.  They have been able to  work legally and put down roots, but at the same time, have endured continual uncertainty, never knowing if their TPS or DED would be extended when each year or 18-month increment was due to end.

The Trump administration announced in March 2018 that it would terminate Liberian DED in March of 2019, and then granted an extension of the termination until March of 2020.

Section 7611 of the recently enacted defense funding bill will finally allow approximately 4000 Liberians to formally become what they have in fact already been – full members of their U.S. communities.  This is a humane move, ending Liberians’ long temporary immigration status limbo.  It is also a smart economic move, since these individuals are members of the nation’s workforce, and are contributing to their communities as neighbors, friends, consumers, and taxpayers.

The American Dream and Promise Act, already approved by the House of Representatives, would similarly create a path to residency for those with TPS and Deferred Action for Childhood Arrivals (DACA) status whose status has been terminated by the administration and remains intact due only to federal court orders.   Like the Liberians, these approximately one million people are already part of, and contributing to, our communities.  It’s high time for the Senate to pass similar, common sense legislation  to provide them with a path to permanent residency by a veto-proof majority.

In the meantime, at least Liberians can at last apply for their “green cards”, and eventually for U.S. citizenship.

Since its very first week, the Trump administration has bypassed Congress to reshape the nation’s legal immigration landscape through executive orders, presidential proclamations, regulatory revisions, and internal processing procedures and delays.  Collectively, these efforts have been called the “Invisible Wall”, and are doing more to curb immigration to the U.S. than any physical barrier on the country’s borders would.

The administration’s revised policies particularly target immediate family immigration to the U.S., and the refugee and asylum framework.  About two-thirds of new permanent residents (“green card” holders) to Maine are family-based immigrants whose U.S. citizen or permanent resident immediate family members petitioned for them. Refugees have also been an important source of immigration to Maine.

Lawsuits challenging many of the administration’s changes are ongoing.  Here is a brief update on where some of these cases stand. 

• • Presidential Proclamation re: health insurance mandate for immigrant visa issuance. This proclamation would have the effect of cutting the number of immigrants to the U.S., particularly immediate family immigrants and Diversity Lottery winners, by an estimated 60%. It was to take effect on November 3^rd, but has been enjoined while litigation against it continues.  Learn more about the Presidential Proclamation here.

• • Public charge rule: This final rule particularly targeted immediate family immigration, and would likely have cut family immigration by over 50% by imposing new requirements for English proficiency, a high school education, or a minimum of 250% of the Federal Poverty Line as the household’s income.  It was to have taken effect on October 15, 2019.  Nine lawsuits were filed challenging it, including one brought by California’s Attorney General that the State of Maine joined, and the rule was enjoined before it took effect.   The Ninth Circuit recently overruled three district court rulings enjoining implementation of the rule, including the case that Maine joined. However, nationwide injunctions remain in effect as a result of decisions by federal district courts in New York and Maryland.  Learn more about the public charge rule here.

• • Consent to refugee resettlement:  An Executive Order issued in September requires, for the first time ever, that states and localities must consent before any refugees can be resettled in their communities. For example, if a governor does not consent, no refugees may be resettled in that state. If the governor consents, and a city does as well, but the county where that city sits does not grant consent, no refugees may be resettled in that city. No refugees have been resettled in Maine in FY 2020 as Catholic Charities works with the state and counties and municipalities to get their consent. Several refugee resettlement agencies have sued to block the Executive Order.  Initial arguments will be heard in January 2020.   Learn more about the refugee resettlement consent issue here.
    

• • Social media scrutiny:   The Administration is now requiring all visa applicants, for both nonimmigrant (temporary) and immigrant (permanent resident) visas, to provide information on all their social media accounts and handles for the past five years. Both forgotten and thus omitted handles, or content on a visa applicant’s social media feed, even if posted by others and not commented on or “liked” in any way by the visa applicant, may lead to visa denials.   Among others, this would affect those at the final stage of the process to immigrate to the U.S., those coming on work visas, or student visas to attend U.S. schools and universities, as well as visitors from countries where a visa is needed to travel to the U.S.  Maine, of course, benefits from all of these categories of immigrants and nonimmigrants, and will likely be adversely impacted by this new policy, along with the rest of the country.  A lawsuit was filed on December 5th to challenge the new requirement.  Learn more about this issue here.

On December 11^th, 2019 the House of Representatives passed R. 5038, the Farm Workforce Modernization Act of 2019, with a bipartisan majority.   Maine’s Representative Chellie Pingree is a co-sponsor of the bill.  The bill was developed with the involvement of agribusiness and farm labor groups, and like all legislation resulting from complex negotiations, there is plenty to both like and dislike.  Nonetheless, the bill makes great strides towards overdue positive changes of portions of our nation’s outdated immigration laws.

The bill provides a relatively quick path to a new “certified agricultural worker” (CAW) status for undocumented agricultural workers who have been working on U.S. farms for years (and their spouses and under 21 year old, unmarried children), and a much longer path (after up to 8 years additional years of farm work) to permanent residency.  CAW farm workers could work anywhere in the U.S., for any size farm, boosting the available labor supply for small farms such as those in Maine that can’t afford to participate in the H-2A temporary agricultural worker visa program

The bill would also revise the H-2A agricultural worker program substantially, providing visas valid for up to 3.5 years, newly available for year-round, not just seasonal, work.  These changes will reduce bureaucracy for farmers, and will especially benefit dairy and other farm operations that have year-round labor demands.  Under the bill,  H-2A workers would also benefit from a new path to permanent residency after 10 years of H-2A work.

Other changes to the H-2A program touch upon wages, worker protections, housing requirements, transportation and subsistence payments for H-2A workers, and protections against unscrupulous foreign labor recruiters.  The bill introduces a new “portability” pilot program that would allow employers to register, and H-2A workers to work for any registered employers without first needing to have petitions filed on their behalves.

The bill also would revamp the current E-Verify electronic employment authorization verification system, and require that all agricultural employers, including small farms comprised of as few as 2 persons, use it.  Mandatory E-Verify for this sector of the economy may be a slippery slope towards a costly nationwide mandate for all employers. The proposed revisions for electronic verification do seem like they may be improvements over the current flawed E-verify system, but the program will be mandated for the agricultural sector before the new version has even been tested.

Nonetheless, despite  that latter shortcoming, this bill is worth supporting. The bill was referred to the Senate Judiciary Committee after its passage in the House.  There is unfortunately no indication of when or whether the Senate will take the bill up.

Analyzing government data, the Migration Policy Institute has issued a report finding that total issuance of visas to come and stay temporarily in the U.S. declined by 17% between FY 2015 and FY 2018.

U.S. immigration law provides dozens of categories of nonimmigrant visas for individuals coming to the U.S. for temporary purposes.  The most common include visas for visitors, international students, and temporary workers ranging from agricultural or non-agricultural seasonal workers to professional, managerial, and extraordinary ability workers and artists.

The decline in visa issuance has a real economic impact.  As we’ve noted previously, a drop in international student enrollment not only represents a loss of economic activity during their studies, but also of future members of the U.S. workforce.   A 14 million decline in the number of visitors to the U.S. since FY 2015 has resulted in an estimated $59 billion in lost spending, translating to 120,000 lost jobs.

You can read the report here.

The most recent Open Doors report of new international students at U.S. universities in  the fall of 2019 shows declining enrollments for the fourth straight year.  While the decline was level with the prior year’s rate, and less than that of the fall of 2017, it remains troubling, especially when contrasted with multiple years of double digit percentage increases in international student enrollment in Australia and Canada.

Starting with the 2016-2017 academic year, new international student enrollment to U.S. institutions  overall has fallen by over 10 percent.

As noted here, international students make up the majority of students attaining bachelors and graduate degrees in STEM fields at U.S.  colleges and universities.  They have also been an important presence in graduate M.B.A. programs, where,  as the Wall Street Journal recently reported, international student enrollments are also declining.   Apart from their positive economic impact during their studies, international students also represent a vital potential component of our nation’s future professional workforce, making persistent declines in enrollment concerning

The Open Doors report reveals that over half of all institutions reported decreased foreign student enrollment in the fall of 2019.  Reasons for the declines included increased competition with universities in other countries, as well as student visa application processing delays and denials, as reported by 81% of institutions accepting international students.  Indeed, in FY 2015, the year before the declining enrollments began, the State Department issued more than 644,000 student visas, compared to just under 363,000 student visas in FY 2018.   Visa issuance to students from China and India fell particularly sharply, from over 274,000 and nearly 75,000 respectively in FY 2015, to fewer than 99,000 and 43,000 respectively in FY 2018.

Additional reasons cited as contributing to the enrollment declines were concerns about the political environment and physical safety for foreign students in the U.S.

Institutions continued to report that the U.S. social and political environment (57.9 percent) and feeling unwelcome in the United States (48.6 percent) were factors contributing to new international student declines, though the percentages were slightly lower than in the 2018 Snapshot Survey. In addition, institutions reported that concerns about physical safety in the United States remained a factor contributing to declining enrollments (45.8 percent). Institutions noted that the combination of political rhetoric and personal safety continued to cause hesitation for prospective international students and their families.

In contrast, international students surveyed in Canada responded that two of the top three reasons  why they chose that country included “Canada’s reputation as a tolerant and non-discriminatory society” and  “Canada’s reputation as a safe country”.   In addition, 60% of international students in Canada plan to apply for residency there after graduating, and Canada has liberalized its immigration laws to facilitate this.

In the meantime, the U.S.’s outdated immigration laws include unrealistically low  annual numerical limits on skills-based immigrants, raising barriers to foreign students who might want to remain and work permanently in the U.S. Those limits have led to decades-long wait lists for employment based immigrants from countries such as India and China, countries which represented 55% of all international students in Canada in 2018.

In addition, a pending lawsuit seeks to end the Optional Practical Training (OPT) program that enables international higher education students to engage in employment in their fields during their education or for a limited time after receiving their degrees, providing U.S. employers with talented employees and potentially leading to permanent job offers for foreign students.    Groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers have intervened in the lawsuit to support the educational and economic importance of the OPT program, as explained here.

For the future strength of the U.S. economy, policies that make the U.S. a less attractive destination for international higher education students should concern us all.

 

 

 

ICYMI:  The Economist issued a Special Report on November 14, 2019 entitled “The Magic of Migration”.   The report looks at multiple aspects of immigration worldwide, including skilled and so-called low-skilled migrants, objections to immigration, and domestic migration.

The key takeaway:

the world needs more migration…the potential gains vastly outweigh the costs, and…those costs can be mitigated with better policies.

You can find the report here (paywall).