Author: Beth Stickney

Many immigration related bills have been introduced in 2017 in the 115^th Congress. Most have little chance of passage or are not yet in play.  Of those that may take on life, just a few  are noted here.

• The Reforming American Immigration for Strong Employment (RAISE) Act, S. 1720.

Introduced by Senators Tom Cotton and David Perdue and backed by President Trump, this bill would slash the overall number of immigrants to the U.S., chiefly by gutting immediate family immigration.   It would immediately reduce the total number of immediate family immigrants allowed each year by more than 40% from current levels, and eliminate most categories of family members presently eligible (including children who have have already turned 18, and parents, married children, and siblings of U.S. citizens). It would also eliminate the Diversity Visa lottery, and cap the number of refugees allowed in each year at 50,000.

The bill would create a new “points” system for employment-based immigration. Individuals with English fluency, post-graduate degrees in STEM or professional fields, younger workers, and those with high paying job offers or independent wealth to invest in the U.S. would be given the highest priority, apart from Nobel Laureates and Olympic individual medalists or other world class athletes, who would be granted special points. Under the proposed points system, total employment-based visas would be capped at 140,000 annually, which is fewer than the number granted for each of the three most recent fiscal years for which there is complete data.

While the bill’s sponsors state it will strengthen our nation’s economy, there is broad opposition to that view from economists, business leaders, academics and others, including members of Congress on both sides of the aisle.  A small sampling of the early reaction to the RAISE Act:

The Bipartisan Policy Center

The Cato Institute:  here and here

The Council on Foreign Relations

New American Economy

Susan Martin, former Executive Director of the U.S. Commission on Immigration Reform

Various economists quoted in this Eduardo Porter piece in the NYTimes

• The Dream Act of 2017, S. 1615, H.R. 3440
• Introduced in July with bipartisan support in both the Senate and the House of Representatives, the Dream Act of 2017 would allow immigrants who came to the U.S. while under age 18, who lived in the U.S. at least 4 years prior to the bill’s enactment, who completed high school or their G.E.D., or who have DACA (Deferred Action for Childhood Arrivals) status, and who meet certain other conditions (medical exam, background checks), to apply for conditional residency, valid for 8 years.  While conditional residents, if they meet various conditions including completing at least 2 years of honorable military service or at least two years of higher education, or performing substantial work for at least 3 years, they would be able to apply for permanent residency. The bill would also protect immigrant youth in elementary, middle or high school, until they are eligible to apply after getting their high school diploma or their GED.Estimates are that the Dream Act of 2017 would immediately benefit nearly 2 million undocumented immigrants, with an estimated 1.5 million more who would eventually qualify once they complete high school or get their GED.  With legal status, they can pursue more educational opportunities and better jobs, so that they can reach and contribute to their full potential in the U.S.The U.S. has already invested in these youth, and for many, this country is the only home they can remember.  With our shrinking labor pool as “Baby Boomers” retire, helping these “DREAMers” gain permanent residency  in the U.S. is not only the right thing to do, it’s economically smart for our country.
• The Agricultural Worker Program Act of 2017, S.1034, H.R. 2690

 This bill would allow farm workers who have performed at least 100 days of agricultural work in the U.S. in each of the two years preceding the bill’s enactment, and who meet other conditions, to apply for temporary residency (the “Blue Card”).   Both seasonal agricultural visa holders and undocumented farm workers would be eligible.   After working for a defined period in agriculture during three to five additional years, Blue Card holders who also meet other conditions could apply for permanent residency, and would no longer be tied to farm work.

The bill would help potentially millions of farm workers who have lived in the U.S. for many years without documentation to come out of the shadow economy and regularize their status.  They could then pay taxes (and would be required to prove that they have, prior to gaining residency), pursue educational goals, and improve their and their families’ lives.

 

While the Legislature’s fight over the budget and the brief State Government shutdown captured the headlines, MeBIC followed several bills affecting Maine’s immigrants and their employers.  Here’s a brief recap.

• LD 1492: An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce

SUMMARY:     This bill would increase funding for English as a Second Language classes offered by school districts’ adult education centers, in order to eliminate waiting lists for classes, and to expand the classes offered in communities experiencing an increase in immigrant residents.  It also would: provide funding for contextualized English classes combined with job training at worksites; fund expansion from Portland into Lewiston-Auburn of the New Mainers Resource Center, which helps professional level immigrants integrate; and would provide small planning grants to communities experiencing growth in their immigrant populations.

MeBIC’s POSITION:  SUPPORTED.  Several of MeBIC’s Board members were involved in crafting this bill. MeBIC lobbied for LD 1492 and testified in its favor, as did several of MeBIC’s Partner Organizations.

OUTCOME:   The bill emerged from Committee with strong bipartisan support. However, due to the contentious budget battle, the bill was carried over until 2018, to avoid falling victim to funding issues.

• LD 1307: An Act To Ensure Fair Employment Opportunity for Maine Citizens and Legal Residents

 SUMMARY:     In its initial iteration, this bill would have required all Maine employers to enroll in the federal E-Verify computer system to confirm employees’ legal eligibility to work, but also would have required E-Verify’s use in an unlawful, discriminatory, fashion.  MeBIC pointed out this enormous problem to the committee’s legal analyst, who concurred. The original version was subsequently withdrawn and replaced with language requiring all public employers in the state and all of their contractors or subcontractors to use E-Verify.

MeBIC’s POSITION: OPPOSED.  MeBIC actively lobbied against LD 1307. E-Verify is time consuming and costly to implement, particularly for small businesses without dedicated HR staff or those with large seasonal increases in employees (despite the fact that enrollment and use of the web platform is free).  E-Verify also returns a worrisome percentage of erroneous “tentative non-confirmations” of legal employment eligibility.  Efforts to mandate use of E-Verify by all employers nationally have consistently failed in Congress due to its flaws.   E-Verify in its current form should not be mandated in Maine.

OUTCOME:   LD 1307 was defeated.

• Biennial Budget: Retention of General Assistance Funds Availability for Immigrants Applying for Permanent Status in the U.S.
  

SUMMARY:     General Assistance (G.A.) provides safety net subsistence level support for those who have nowhere else to turn.  Since 2015, it has been available to noncitizens who are legally here and seeking permanent status in the U.S., such as asylum seekers, for a maximum of 24 months.  Asylum seekers cannot get authorization to work under federal law until their asylum applications have been in process with the U.S. government for at least 180 days, and they are ineligible for federal means-tested benefits.  G.A. helps asylum seekers, who are not sponsored by any agency, survive and remain in Maine while awaiting their work permits.  With Maine’s declining population, investing in supporting asylum seekers in the short term, so that they can be part of our workforce and our communities in the long term, is an investment in strengthening Maine’s economy.

MeBIC’s POSITION: Several individual businesses wanted to make the case at the State House that retaining limited G.A. eligibility for asylum seekers and others on the path to permanent immigration status is a smart investment in Maine’s economy.  MeBIC’s Director supported their efforts, and also provided talking points to several Republican and Democratic legislators who requested them, making the economic case for G.A.

OUTCOME:   G.A. eligibility for immigrants was retained in the approved biennium budget.

As noted by MeBIC previously , the 33,000 nationwide cap for summer seasonal H-2B worker visas was reached in March. This was two months earlier than the prior year, and shut many Maine employers in the hospitality sector out from getting the workers many have relied on for years to handle the surge in summer and “leaf-peeping” tourism.

In May, Congress included language in an appropriations bill that would have allowed the issuance of up to nearly 90,000 additional H-2B visas per year, as MeBIC discussed in this post.  On July 19, 2017, the Departments of Homeland Security and Labor issued a final rule implementing the new law, but authorized only an additional 15,000 H-2B visas for the current fiscal year ending on September 30, 2017.

Coupled with a new requirement imposed by Congress that employers attest that they will suffer irreparable, permanent, harm should they not get the temporary H-2B workers they need, among other requirements, DHS and DOL’s rule is too little, too late to help Maine’s summer seasonal non-agricultural employers this year.

On June 26, 2017, the U.S. Supreme Court agreed to hear the Federal Government’s appeal of the federal court decisions enjoining sections of the Administration’s March 6, 2017 Executive Order (E.O.). That E.O. suspended entry for an initial period of 90 days of citizens or nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen, as well as for 120 days of refugees, and capped refugee admissions for the current fiscal year at 50,000.

The Supreme Court will hear the appeal in its next term that begins in October 2017.

The Supreme Court also narrowed the scope of the lower courts’ injunctions, allowing the government to implement the E.O. against persons from the six named countries or refugees who do not have “a credible claim of a bona fide relationship with a person or entity in the United States.” The Supreme Court gave only brief guidance about how those relationships should be defined, creating much confusion. The E.O. took effect on June 29, 2017, and the government construed those exempted from the travel and refugee bans very restrictively.

On July 13, 2017, the Federal District Court of Hawai’i ruled that the government’s definition was too narrow, and expanded the classes of persons the government to whom could not apply the E.O.   That decision was then appealed as too broad, resulting in a Supreme Court clarification on July 19, 2017.  As a result of the various court rulings, the E.O cannot be enforced against people from the six countries or refugees who:

• are parents, parents-in-law, spouses, fiancé(e)s, children, adult sons or daughters, sons or daughters-in-law, whole or half-siblings, step-relatives by marriage, grandparents, grandchildren, brothers or sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons already in the U.S.;
• have a bona fide relationship with a U.S. entity that is “formal, documented, and formed in the ordinary course”, including those with job offers from U.S. employers. The Supreme Court specifically gave additional examples such as students accepted to attend, or those coming to speak or lecture at,  U.S. universities.  Presumably people from the six countries who intend to attend meetings with a business with which they have a documented relationship, would be able to apply for a visa or entry.

Individuals from any of the six countries who have dual nationality may be exempted from the E.O. travel ban if they travel on their passport issued by the non-targeted country. The E.O. also does not apply to those who already have permanent residency or refugee or asylee status in the U.S., or who were issued visas prior to the June 26th Supreme Court decision.

As a practical matter, the U.S. consulates are denying visas to many people from the six countries who may well have gotten visas in prior years, regardless of the various court decisions. There is no appeal from a denial of a U.S. visa, though reconsideration may be requested.

As a result of the travel ban and the uncertainty surrounding U.S. visa policy under the current administration, many individuals are choosing not to pursue work or study opportunities in the U.S.   Eventually there may be measurable negative economic consequences from the new policies.

Immigrants have a centuries-long track record of entrepreneurial activity in the U.S. More than half of all U.S. start-ups of at least $1 billion in value had at least one immigrant cofounder, according to a 2016 study.  This holds true as well for over 40% of Fortune 500 firms who have at least one immigrant or a child of immigrants founder. Immigrant entrepreneurs are the backbone of a vibrant U.S. economy.

Unfortunately, the nation’s outdated immigration laws do not provide adequate avenues for immigrant entrepreneurs at the start-up stage. This shuts out not only entrepreneurs living abroad, but also foreign students who have attained advanced degrees, often in STEM fields, at U.S. universities, who want to innovate here rather than in their home countries.

Following repeated unsuccessful attempts to get meaningful immigration reform through Congress, the prior Administration crafted a new International Entrepreneur Rule (IER) to allow use of an existing program called “parole” as a vehicle through which international entrepreneurs could gain temporary legal status in the U.S. to launch new enterprises, on a case-by-case basis, if they met certain investment and other criteria. If their launch efforts were successful, they might later obtain permanent legal status under existing immigration laws.  The IER was scheduled to take effect on July 17, 2017.

On July 11, 2017, the new Administration published a final rule delaying implementation of the IER until March 14, 2018, and expressing its intent to rescind the IER altogether, following a notice and comment period ending Aug. 10, 2017.

Many organizations and individuals concerned with the economy expressed their disagreement with the new Administration’s stance, including the National Venture Capital Association,  and the Consumer Technology Association.

Rescission of the IER, absent Congressional action to dramatically improve our federal immigration statutes, will result in the U.S. losing talented entrepreneurs and job creators to other countries.

MeBIC Board President Mark St. Germain, Principal and Senior Scientist at St. Germain Collins, and Board Member Cathy Lee, Managing Partner of Lee International, speak out against efforts to cut immigrant eligibility for safety net General Assistance (G.A.) benefits from Maine’s state budget in this opinion piece published in the Bangor Daily News.

Under current law, only those who are legally here can get G.A. and only for a maximum period of 24 months.

G.A. is vital for asylum seekers in Maine who, despite being legally here, under federal rules cannot get their work permits until their asylum applications have been in process for 180 days.   They have no legal way to work to support themselves during this period.   Asylum seekers typically get jobs right after receiving their work permits, and they quickly repay the investment that Maine has made in them through the taxes they pay once they are working.

With Maine’s rapidly shrinking workforce, we need every last person who moves to Maine, whether from across the country, or around the globe, to stay and work in Maine.  G.A. helps asylum seekers do that.

As the op-ed points out, G.A. for asylum seekers is a short-term investment, with long-term economic benefits for Maine.

As of May 23, 2017, U.S. consular officers can ask certain visa applicants whom they feel need “more rigorous” screening to complete a new form requesting 15 years worth of address, employment, and travel history (including domestic travel in certain cases, and source(s) of funding); names and dates of birth of immediate family members, including children and siblings as well as former spouses or partners; and phone numbers, email addresses, and identifiers for all social media accounts going back 5 years.

Both nonimmigrant (temporary), and immigrant visa applicants may be asked to complete the form. According to the notice in the Federal Register, those who are from, who live in, or who have traveled to countries in which a U.S. consular officer believes terrorists are operating are more likely to be singled out to complete the new form. As a practical matter, this means visa applicants from the six countries identified in President Trump’s March 6, 2017 Executive Order, including Iran, Libya, Somalia, Sudan, Syria and Yemen, will be disproportionately affected, as will those who are from or have ties to other predominantly Muslim countries.

While in theory, completing the form will be voluntary, as a practical matter, failure to comply is likely to result in denial of the visa. Additionally, even in the best-case scenario, this level of “vetting” is likely to lead to visa processing delays. In the worst case scenario, innocent mistakes in completing the form could lead to visa denials. For example, a visa applicant who inadvertently omits a weekend trip taken more than a decade ago, or who gets the dates wrong on any travel or on moving from one address to another, or who forgets to list a no longer used social media account, will likely face a visa denial.  U.S. consular officers have complete discretion in their decision making, and there is no right to appeal a visa denial.

The new form has been approved for use through November 30, 2017, at which point the Department of State may request that its use be extended.

Impact for Maine businesses?      Because this form will likely be used with visa applicants from the six countries named above, many employees at Maine businesses who are originally from Somalia or Sudan, etc.  may experience delays or denials of their relatives’ immigrant visas.  This will cause considerable strain on affected families, as will the mere worry that their family members who are in the pipeline to immigrate could be denied their visas.  Nonimmigrants applying for visas to visit, study or work in the U.S. may also experience higher rates of visa denials as a result of the government’s decision to start asking for 15 years’ worth of detailed data.

The Portland Press Herald published a Maine Voices column today authored by David Vail, a retired Bowdoin College professor of Economics, with MeBIC’s Beth Stickney.  You can read the article here.  The op-ed notes that LD 1492, pending in the State Legislature, would provide funding for increased availability of English as a Second Language classes and other programs that will help immigrants more quickly contribute to Maine’s workforce and reach their full potential.

MeBIC has been following two recent bills closely.

LD 1492, An Act to Attract, Educate and Retain New Mainers to Strengthen the Workforce. Sponsor: Sen. Roger Katz

MeBIC’s position:   Support

This bill addresses Maine’s shrinking labor supply by recognizing immigrants as a critical part of the solution. It would provide funding to expand the availability of adult English as a Second Language (ESL) classes, to offer combined ESL and job training at worksites in public/private partnerships, to expand the New Mainers Resource Center model operating in Portland into the Lewiston-Auburn area, to provide funds for planning grants for communities experiencing growing influxes of immigrants to assess services needed to help reduce brain waste and accelerate immigrant integration, and to create a Cabinet-level Office of New Mainers with a broad advisory board to improve planning and coordination of initiatives to attract, retain and integrate immigrants in Maine.

Public hearing was held on May 10, 2017, where the bill received broad support (and no opposition) from Maine’s business community, including several MeBIC members, including the Maine State Chamber of Commerce, Coastal Enterprises, Inc., the Maine Healthcare Association, Barber Foods, Pro Search, Inc., Smith’s Farms, as well as from adult education providers, the Lewiston City Council, individual employers, and Maine residents. The Maine Innkeepers Association and the Maine Restaurant Association also submitted testimony supported key portions of the bill.

The bill now heads to work session.

 

LD 1307, An Act To Ensure Fair Employment Opportunity for Maine Citizens and Legal Residents

MeBIC’s position:   Oppose

This bill, as originally proposed, would have mandated that all Maine employers use the Federal E-Verify computer system in addition to the required use of the USCIS form I-9 to verify that new hires are authorized to work in the U.S. However, it would have required that employers use E-Verify in a discriminatory way that is illegal under Federal law.

At the work session on May 4, 2017, the bill’s sponsor, Rep. Phyllis Ginzler, introduced substitute language that would require all public employers in Maine, and any businesses, and their subcontractors, who contract to do work in Maine for them, to use E-Verify for all new hires. Following amendment review, this bill will head to the House floor for a vote.

MeBIC opposes this bill because:

1. This is a solution in search of a problem. There is no allegation or evidence that Maine employers are not complying with the federal requirement requiring new hires to prove their eligibility to work in the U.S. using the USCIS I-9 form.
2. E-Verify is costly for businesses. Enrollment in E-Verify is free, but it is costly to use. In addition to going through the usual I-9 process, employers must accurately input every new hire’s name, email address, date of birth, Social Security number, and presented document type and number into the E-Verify web-interface.   In many cases employers must also compare the photo on the new hire’s ID document to the photo, which may be as much as 10 years out of date, that USCIS has in its database.   Maine employers who have signed up for E-Verify have found it significantly increases the man-hours involved in the HR process, and that is if all goes well.   If the system reports a “tentative nonconfirmation” (TNC) of work authorization, the employer must first ensure it has not made a data entry error.  If data entry was not the issue, the employer must notify the employee of the TNC.  The employee must then go to the nearest Social Security or Department of Homeland Security office (for employees throughout Maine, the only DHS office is in Portland) to try to clear up the error.   Sometime repeated trips are needed before the error is resolved, resulting in lost hours of work and productivity.  The Congressional Budget Office (CBO) found that nearly half of all workers with TNC’s lost a partial or full day of work, and 14% lost more than two days of work correcting the TNC.  The CBO estimated in 2013 that mandated use of E-Verify nationwide would cost over $600 million in three years, just for private sector employers.   Bloomberg found that small business owners who used E-Verify in 2010 spent $81 million on it.
3. E-Verify has too many flaws for its use to be mandated by Maine law.   When E-Verify was originally created, Congress wanted to mandate it for all U.S. employers.   After the Social Security Administration, upon whose data E-Verify relies, testified in Congress about errors in its database, E-Verify was launched instead as a pilot project.   Problems surfaced as E-Verify rolled out, including U.S. citizens and other legal workers being ruled unauthorized to work. Over time, E-Verify errors have decreased, but have not been eliminated.   As a result, as recently as Congress’s 2015-2016 session, bills to make E-Verify mandatory nationally failed.

Congress has wisely kept enrollment in E-Verify voluntary except for certain federal contractors.   Maine should not burden public employers and the businesses that do contract work for them by mandating  use of the costly and flawed E-Verify system.

With only five months remaining in the fiscal year, Congress finally enacted the FY 2017 spending bill,  signed into law on May 5, 2017.   Not included in the Consolidated Appropriations Act of 2017 were funds for  building new sections of “the Wall” on our border with Mexico.

However, the bill did include many immigration provisions, including an additional $430 million for increased immigration detention capacity and removal expenses, despite  monthly border apprehension rates being at their lowest level in over six years.

Of relevance in Maine, the appropriations bill also included language allowing the government to increase the cap on the number of available H-2B seasonal non-agricultural visas that are used by many of Maine’s seasonal businesses in the hospitality/tourism sector, potentially from the existing 66,000 per year to over 154,000.  Unfortunately this fix is coming too late to supply the workers needed for the start of Maine’s 2017 summer tourist season.   More details on the H-2B provisions are here.

 

The Consolidated Appropriations Act of 2017, signed into law on May 5, 2017,  contains provisions attempting to fix the problem of employers being left without sufficient workers due to the cap on the number of available H-2B seasonal non-agricultural visas.    As noted in an earlier post, the 33,000 cap for summer season H-2B visas was reached in early March, leaving Maine’s seasonal employers whose applications were not already filed by then high and dry.

Sen. Angus King had previously introduced a bill, which Sen. Susan Collins cosponsored, that would have exempted “returning workers” – those who had come to the U.S. on an H-2B previously and would be returning to work for the same employer – from the H-2B visa cap.  That approach was not adopted in the spending bill.    The American Immigration Lawyers Association (AILA) summarized the relief enacted:

“While this bill does not include the returning worker exemption, it includes a provision that could allow DHS to increase the H-2B cap and thereby provide limited relief to businesses using the H-2B program. 
The bill allows DHS, in consultation with DOL, to increase the H-2B cap by not more than the highest number of H–2B nonimmigrants who participated in the returning worker program in any year in which returning workers were exempt from such numerical limitation. To trigger this increase, however, the two agencies must determine there are not sufficient U.S. workers 
able to fill the available positions. Although the total H-2B visa issuance number for FY2016 is unavailable for comparison, the highest number of H-2B workers admitted to the US when the H-2B returning worker exemption was in place (FY2005-7) likely refers to the number admitted in FY2007, 154,895….. (The bill also) changes the definition of ‘temporary need’ from a fixed 9 month period to a period of ‘one year or less,’ which DOL has generally capped at 10 months.”

Unfortunately, the bill includes new requirements that may put any additional H-2B visas out of reach, including compelling many employers to begin their summer hiring recruitment process all over again, and making all employers attest that they will suffer irreparable, permanent harm without the planned H-2B staff.

In addition, the process the Department of Homeland Security (DHS) and Department of Labor (DOL) must follow is unlikely to result in Maine’s seasonal employers getting visas for the workers they need in time for the start of Maine’s summer 2017 tourist season.

On April 7, USCIS confirmed that the cap for H-1B visas for FY 2018 (starting October 1, 2017) had been reached.  This is the 5th year in a row that all 85,000 cap-subject visas have been exhausted within a week of the April  1st initial filing date.   Petitions that could not be accepted due to the cap will be returned with their accompanying filing fees to the petitioners.

USCIS has confirmed to the American Immigration Lawyers Association that if, during the week of April 3-7, 2017, it receives enough petitions to exhaust the statutory annual H-1B visa limits, the petitions will be selected for processing by lottery.

As in recent years, petitions for the 20,000 Master’s degree cap exempt visas will be randomly selected by lottery first. Any Master’s degree petitions not selected then will be combined with the other H-1B petitions subject to the 65,000 annual cap, for selection to be processed by lottery.