Author: Beth Stickney

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

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

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

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

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

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

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

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

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

You can read the full report here.

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

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

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

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

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

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

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

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

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

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

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

You can find more details about the IE program here.

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

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

The report also states:

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

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

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

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

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

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

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

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

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

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

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

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

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

In his speech to a joint session of Congress on April 28, 2019,  President Biden called on Congress to act on immigration reform.   While he urged Congress to support the broad U.S. Citizenship Act of 2021, he acknowledged that reaching agreement on enacting a comprehensive reform bill may be a heavy lift.

He insisted that Congress must move forward regardless, on immigration issues where there is agreement.   Biden highlighted the  strong bipartisan public support for providing a path to permanent residency for Dreamers and DACA holders, and urged Congress to move ahead with passing the Dream Act.  He also stressed the need to pass the Farm Workforce Modernization Act to legalize undocumented farmworkers who are essential to the nation’s food supply chain, and  the SECURE Act to provide residency to immigrants who work and are now rooted in our communities after having had Temporary Protected Status for more than twenty years.

Between them, these bills would offer a path to permanent  residence  to between 4 to 5 million immigrants who are already part of our workforce and economy.

The President’s speech also spotlighted the jobs that the administration’s infrastructure  and climate change plans would create.   But pre-pandemic, there were millions more open jobs than there were job seekers.  Unemployment rates are already decreasing, and getting closer to pre-pandemic levels, and immigrants will be critical to the nation’s economic recovery and any future growth.

Congress must act on immigration reform this year both from a humane, and an economic perspective.  Read more about the President’s remarks in this article from The Hill.

A federal judge in Texas with a history of issuing decisions hostile to immigration could issue a decision within days or weeks on the legality of the Deferred Action for Childhood Arrivals (DACA) program.   If, as widely expected, he strikes DACA down, over 600,000 young adult Dreamers who came to the U.S. as children would be left without legal status. Their lives will be in legal limbo, harming them, their families, their employers and their communities.

Their futures cannot be left up to the courts.   Only Congress can give a path to permanent residency to Dreamers and DACA holders who arrived in the U.S. as children.

The House of Representatives has already passed a bill to do just that.  Now, the ball is in the Senate’s Court.

MeBIC partner, the American Business Immigration Coalition (ABIC), and the Presidents’ Alliance on Higher Education and Immigration has drafted a sign-on letter collecting signatures  from business, higher education, and other civic and faith leaders from all 50 states calling on Senate leadership to move ahead on the bipartisan Dream Act of 2021. 

If the federal court strikes down DACA, the letter will be sent to Senators Mitch McConnell and Chuck Schumer immediately.

Maine’s economic leaders can sign the letter to show that immigration reform is critically needed for Maine,  not just for the nation, by joining businesses and higher education institutions nationwide to send a strong message that the time to pass the Dream Act is now. Dreamers and DACA holders need to finally know that they can live permanently in the U.S.   Passing the Dream Act is vital for them, for our communities, for our economy, and for our nation’s future.

As the letter explains:

“Dreamers are pillars of our nation’s economy and communities – 93 percent of them are employed, they pay close to $10 billion in taxes, and they carry nearly $20 billion in spending power. Nearly 40,000 Dreamers have started businesses and created new jobs for American workers, growing our entrepreneurial spirit. Dreamers are on the frontlines of the pandemic response. Almost 200,000 are essential workers – first responders, restaurant and grocery store workers, childcare providers and almost 30,000 healthcare workers, including doctors and nurses.”

Maine’s business voices matter in the push for federal immigration reform and passage of the Dream Act.   You can join buisnesses nationwide by signing the letter here.

The U.S. Census Bureau released its first tranche of data from the 2020 decennial census on April 26, 2021.   From 2010 through 2020, the U.S. population grew by only 7.4%, the second slowest rate of growth (second only to 1930 to 1940, covering the Great Depression) since the census was first conducted in 1790.

Maine’s population grew by only 2.6% in the past decade, lower than the national rate, as well as below the 4.2% state growth rate experienced between 2000 and 2010.

A Brookings report parses the initial Census 2020 data, which bears out predictions that Brookings made in a January 2021 analysis.  While the demographic details painted in the January analysis can’t be confirmed until the Census Bureau releases additional information from the 2020 Census, the confirmation of population growth stagnation that Brookings predicted is troubling.  As that analysis noted, “immigration is essential for countering further stagnation.”

And as another recent report notes, without immigration to offset the nation’s declining birth and increasing death rates, our economy will shrink.

The Brookings report on the initial 2020 Census data concludes:

As we digest these and later results of the 2020 census, it is apparent that the United States is becoming a more demographically stagnant nation. How we adapt in the post-pandemic period in terms of childbearing, movement across states, and toward adopting a reasoned immigration policy will determine what kind of country we will become, both demographically and economically, in the decade ahead.

On April 22, 2021, Senators John Cornyn (R-Texas) and Kyrsten Sinema (D-Arizona), together with Representatives Tony Gonzales (R-Texas) and Henry Cuellar (D-Texas) introduced the Bipartisan Border Solutions Act of 2021, proposing improvements in asylum processing procedures for the  asylum seekers arriving at the United States’ southern border.

In addition to proposing increases in asylum officers, immigration judges, and border personnel, the bill would create four regional processing centers at locations on the border that see high influxes of asylum seekers,  as well as providing expanded access to legal information orientations, to pro bono attorneys and legal aid providers, and to materials and information in asylum seekers’ primary languages.  The bill strikes a balance between improving existing due process standards for asylum seekers at the border and more effective processing, as summarized here

The effort to craft a bipartisan approach to improve asylum processing at the southern border has been publicly welcomed by a broad range of organizations including the American Business Immigration Coalition, of which MeBIC is a chapter, as well as  by the U.S. Chamber of Commerce, National Immigration Forum, Texas Association of Business, MeBIC partner New American Economy, Americans for Prosperity, and The LIBRE Initiative.

Congress must pass immigration reform this year, including paths to permanent legal status for Dreamers and those with DACA, and for farmworkers, TPS holders for whom bills have already been approved by the House of Representatives, and for others who are performing essential jobs in our economy and are already members of our communities.   Members of Congress who say such reforms  can’t be done until the southern border is addressed should support this bipartisan border bill that does just that.

On April 20, 2021, USCIS announced that it would add 22,000 visas  to the number of visas available for seasonal non-agricultural worker positions with start dates from April 1, 2021 through September 30, 2021.   The 33,000 H-2B visa cap for the second half of FY 2021 had already been reached in February, 2020.

The visas will be available only to employers who attest that they will suffer irreparable harm if they don’t get additional employees under the H-2B cap increase.   Employers also will be able to hire H-2B visa holders who are already in the U.S. working for other employers once they file the visa petition for the workers, without needing to wait for the petition’s approval.

The announcement notes that 6,000 of the 22,000 visas will be reserved for citizens of the Northern Triangle countries, El Salvador, Guatemala, and Honduras, in order to create a legal channel for individuals from those countries to enter the U.S.    However, if employers do not have connections to labor recruiters in those countries, as a practical matter, this provision may help neither citizens from those countries, nor U.S. employers needing more seasonal workers.

The administration’s 22,000 increase is disappointingly low, given that over 69,000 more H-2B visas could have been authorized under the terms of the  FY 2021 omnibus spending bill passed by Congress in December 2020.

This year, with the new administration, bipartisan immigration reforms should be possible to achieve.   Instead of issuing consecutive one-year cap increases, as Congress has done for at least the past 5 years, 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. 

 

After stating soon after assuming office it would reverse the Trump administration’s record low cap on refugee admissions for FY 2021 and admit 62,500 refugees by the end of the fiscal year, on April 16, 2021, the Biden administration issued a new Presidential Determination on refugee admissions restoring a regional approach to refugee resettlement, but maintaining the 15,000 cap.

Within hours, likely in response to tremendous blowback, the administration announced that the 15,000 cap is only the beginning, and that by May 15, 2021, it will make a final determination on an increased cap for refugee admissions.

During the first half of FY 2021, only 2,050 refugees have been admitted to the U.S.    No refugees have been resettled in Maine during this period.  In comparison, during the first half of FY 2016, the last year before the Trump administration began slashing refugee resettlement numbers, nearly 30,000 refugees were resettled.  Maine resettled nearly 650 refugees that year.

With a record 80 million refugees and displaced individuals around the world, the U.S. has both a moral and humanitarian imperative to resume taking a leadership role in refugee resettlement.  Additionally, in Maine, for over 40 years, refugees have been a reliable stream of new Mainers, keeping Maine’s communities vibrant, shoring up our shrinking workforce, and strengthening Maine’s economy.

The White House must follow through on admitting far more than 15,000 refugees this fiscal year, and on its promise to begin admitting 125,000 refugees per year beginning in FY 2022.