Author: Beth Stickney

On February 24, 2021, the Biden administration revoked the harmful Presidential Proclamation banning entry of most immigrants to the U.S. first announced by the Trump administration on April 22, 2020.  The ban was extended twice, most recently on December 31, 2020, through March 31, 2021.

The ban particularly harmed U.S. citizens and permanent residents whose spouses, children, or in the case of U.S. citizens, parents, were unable to be issued visas or to enter the U.S. to be united with their immediate family members here, despite already having been approved to immigrate.  The Migration Policy Institute estimated the ban prevented about 26,000 intending immigrants per month from coming to the U.S.

It also robbed those selected to immigrate in the FY 2020 Diversity Visa (DV) lottery, who must enter the U.S. before March 30, 2021 or see their chance to immigrate evaporate completely.  Several of those selected in the DV lottery sued the U.S., and on February 19, 2021, a federal court ordered the government to preserve the validity of FY 2020 Diversity visas for those barred from entry due to the ban.

By its stated terms, the entry ban was not created as a public health measure during the pandemic (which could have been accomplished by requiring new immigrants to quarantine after their arrival), but rather, to prevent job competition, despite the fact that even during the pandemic, in many sectors, ranging from the food supply chain and hospitality to high tech, unemployment rates remained relatively low and employers struggled to fill jobs.

The immigrant entry ban’s revocation is welcome news.  Unfortunately, the Biden administration did not revoke the Trump administration’s ban on entry of most foreign temporary workers, which is due to expire on March 31, 2021.  However, on the same date as the revocation of the immigrant entry ban, the U.S. State Department announced a broad expansion of the types circumstances that could qualify for a waiver of the nonimmigrant worker entry ban.

On February 24, 2021, USCIS announced that the 33,000 cap had been reached for H-2B non-agricultural seasonal worker visas for positions beginning during the second half of the FY 2021 fiscal year (April 1- September 30, 2021).   You can see the cap count here.  Any cap-subject petitions received after February 12th  that have a job start date before October 1, 2021 will be rejected and returned to their petitioning employers. 

On February 23, 2021, MeBIC, along with over eighty other Maine businesses, chambers of commerce, trade associations, and higher education institutions launched the Maine Compact on Immigration.

The Maine Compact on Immigration is a set of principles to guide the immigration discussion at the state and federal level. The Maine Compact on Immigration supports federal immigration reforms, as well as statewide policies that are responsive to the needs of Maine’s employers and workers in a time when talent attraction and retention is critical to the state’s economic growth.

You can learn about  just some of the reasons that Maine’s business and higher education communities support the principles set out in the Compact  in this recording of the launch event, in this press release, or in this article.

The Compact was delivered in an open letter to Maine’s Congressional delegation, in a call for them to not just support, but to lead efforts to enact long overdue common-sense immigration reforms in 2021.

MeBIC invites additional businesses who know that immigrants are vital to Maine’s social and economic future to join the Compact, by signing on here.

 

The Biden Administration is reversing course on a widely criticized revamp of the naturalization civics test implemented by the Trump administration in its final months in office.

On February 22, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that effective March 1, 2021, USCIS will revert back to the prior, 2008, version of the civics test.  Applicants for citizenship who applied between December 1, 2020 and February 28, 2021 who are interviewed before or on April 19, 2021 will be able to choose to take either the 2020 or the 2008 version of the test.  Those applying on or after March 1, 2021 or who are interviewed after April 19, 2021 will be tested using the 2008 version of the civics exam.

In its announcement, USCIS said  “(w)e determined the 2020 civics test development process, content, testing procedures, and implementation schedule may inadvertently create potential barriers to the naturalization process. This action is consistent with the framework of the Executive Order on Restoring Faith in Our Legal Immigration Systems, which directs a comprehensive review of the naturalization process to eliminate barriers and make the process more accessible to all eligible individuals.” 

With a new administration and a new Congress, the effort to reform our nation’s outdated and dysfunctional immigration laws and procedures has begun in earnest.

On February 18, 2021, the U.S. Citizenship Act of 2021, the bill championed by the Biden administration, was introduced in both the House of Representatives and the Senate.    The bill is the opening bid in the immigration reform process, and includes provisions that already have bipartisan support, including allowing those who entered as children who now have Deferred Action for Childhood Arrivals (DACA) status, individuals with Temporary Protected Status (TPS), and farmworkers who are essential to our food supply chain, to apply for permanent residency.

The bill would also allow other undocumented individuals shut out of any path to a green card under current immigration laws to seek temporary status that would lead to residency and then citizenship over eight years, enabling them to fully participate in our society, where they are already integral members of our workforce and economy.

The bill is a long overdue  recognition of the urgent need to revamp the nation’s immigration laws, which are completely out of sync with the nation’s demographic and economic realities.  Whether it passes, or whether smaller, more targeted bills advance, such as the Dream Act, that would legalize those with DACA and others who arrived in the U.S. as children, or the Farm Workforce Modernization Act, a bill with support from both the United Farm Workers union and agribusiness, it’s imperative that federal immigration reforms are enacted this year to ensure that the U.S. continues to have a robust workforce, vibrant communities, and a growing economy.

Here are some highlights of the U.S. Citizenship Act of 2021.  It would:

• Create a path for undocumented individuals living in the U.S., after passing criminal and national security background checks and payment of applicable fees, to receive “lawful prospective immigrant” status, along with their spouses and children.  With that status, they can legally work and travel, and after five years, after further background checks and proof of payment of all income taxes, they could get permanent residency (the “green card”).  Three years later, they could apply for U.S. citizenship.
• Raise annual numerical ceilings on employment-based immigration and take other measures to speed up the immigration process for professional level immigrants.
• Improve the U.S.’s ability to attract professional level doctoral students in most STEM fields by easing their path to permanent residency after completing their degrees, and to attract temporary specialized occupation foreign H-1B visa workers by codifying in statute that their spouses and minor children of working age can legally work.
• Authorize a pilot program to allow for regional employment-based immigration for economic development.
• Prioritize family unity through various changes that will end the often lengthy separations of permanent residents and U.S. citizens from their immediate family members, including their spouses, children, adult children, parents and siblings, due to processing backlogs or wait lists (for example, at this writing unmarried adult children of permanent residents or naturalized U.S. citizens from Mexico have been waiting more than 20 years to reach the top of the wait list to immigrate).
• Direct funding and programming to address root causes pushing immigrants from Central America to flee their countries and seek asylum in the U.S.
• Create new opportunities for those fearing persecution in western hemisphere countries to apply for refugee status and resettlement from within those countries.
• Reform and direct resources to the asylum processing system to remove barriers to applying for asylum, reduce processing backlogs, and allow earlier issuance of work permits to asylum applicants.
• Take multiple steps to improve due process for immigrants interacting with the immigration court system and to reduce immigration court backlogs.
• Create new initiatives and provide grant funding to promote immigrant integration efforts and programs at the state and local levels, including funding for English language instruction, workforce development and economic integration efforts, and citizenship instruction.
• Direct funds towards infrastructure and technology for border security.
• Replace the term “alien” with the term “noncitizen” in the immigration and nationality statutes.

In the 130th State Legislature, MeBIC will be actively working for passage of at least three bills that will help ensure that Maine’s immigrants can reach their full potential in Maine’s workforce.

Two bills that have not yet been printed, LR 1095 and LR 1773, are an update to LD 647, which had been approved by both the state Senate and House chambers during the previous legislative session, and was close to receiving funding when the Legislature adjourned early due to COVID-19.  LR 1095 would fund increased English as a Second Language (ESL) capacity at adult education programs and create new combined ESL/job skills training classes offered in collaborations between adult education programs and employers.  LR 1773 would create Career Advancement and Navigation Specialists within adult education programs to help guide Mainers, including immigrants who may additionally need help with gaining recognition of their education and skills acquired abroad, through the steps needed to reach their career goals.  MeBIC will provide updates on these bills once they are printed.

A third bill is  LD 149, An Act to Facilitate Licensure for Credentialed Individuals from Other Jurisdictions.   This bill would give the Department of Professional and Financial Regulation new discretion and flexibility to allow those who move to Maine from other states or other countries to get temporary licensure, in certain cases, while they are going through the often lengthy process of applying for permanent professional licensure.  This will help prevent qualified people from being unproductively sidelined while they work to gain appropriate licensure in Maine.  The bill would also provide more flexibility in certain cases regarding recognition of education and skills acquired abroad.

These three proposals address some of the barriers that result in “brain waste” and underemployment of  immigrants as raised during the work of the Governor’s Economic Recovery Committee, and recently highlighted in this recent Portland Press Herald article.

Please contact MeBIC if you’d like more information about these bills.

In February 2021, MeBIC joined forces with the American Business Immigration Coalition (ABIC) to amplify our efforts to get federal immigration reforms over the finish line in  2021.

ABIC is comprised of over 1200 business leaders and state chapters from across the country who know that the country’s economic future is tied to the ability to modernize the nation’s badly outdated and dysfunctional federal immigration laws.

The last time Congress substantially revised U.S. immigration laws was 30 years ago. Since then, “baby boomers” have gotten 30 years older and closer to retirement age, while the nation’s birthrates have fallen to their lowest levels since 1909.  Meanwhile, the economy is more globalized than ever, and countries around the world are competing for international talent.    Our federal immigration laws have not kept up with the nation’s, or Maine’s,  demographic or economic realities.

By working with ABIC, MeBIC can amplify the voices of Maine’s business community in the national efforts to make sure that Congress enacts common-sense immigration reforms this year that respond to the needs of businesses, while eliminating backlogs that keep immediate families divided and willing workers waiting years for residency, creating pathways to legal status for the undocumented, and allowing those fleeing persecution to seek and gain refuge in the U.S..

The 130th Legislature is underway at Maine’s State House, and MeBIC is watching for bills that will advance racial equity and justice  and positively or negatively impact the immigrants that have chosen Maine as their home.

In addition to the bills that MeBIC is actively working on to get across the finish line, MeBIC has also testified about the following bills:

• LD 2,  An Act To Require the Inclusion of Racial Impact Statements in the Legislative Process

MeBIC supports LD 2 because systemic racism can only be dismantled through intentionality.  This bill will help the Legislature gauge whether proposed legislation, regardless of a bill’s intent, will  perpetuate or instead help dismantle systemic bias and racism in Maine’s laws and policies that effect Black, Indigenous and all people of color, including  immigrants of color who are critical to Maine’s communities and economic future.

• LD 132, An Act To Implement the Attorney General’s Recommendations on Data Collection in Order To Eliminate Profiling in Maine

More than a decade ago, the Legislature created a commission comprised of law enforcement officials, members of Maine’s Tribes, Black, Latinx and immigrant communities, among others, to study the issue of bias-based police profiling in Maine. While communities of color could provide innumerable examples of apparent biased-based police stops, law enforcement lacked any data to delve into whether the perceptions reflected reality, and the commission’s work was hampered by that lack of data.   While progress has been made on these issues, including training, and enactment of policies against profiling, data still is not collected to measure the extent to which bias-based profiling happens or not.   MeBIC supports implementation of the Maine Attorney General’s recommendations regarding this data collection, as proposed in LD 132.

• LD 107,  RESOLUTION, Proposing an Amendment to the Constitution of Maine To Specify the Qualifications of Electors

MeBIC opposes  this bill, which is unnecessary and divisive.  It would amend Maine’s Constitution to state that only U.S. citizens can vote in state and local elections in Maine.   Maine’s Attorney General says  Maine’s Constitution already describes voters only as  U.S. citizens.   Several cities in the U.S. allow noncitizen voting in local elections, such as for school board and city council.  Doing so can promote civic engagement, and give permanent residents and refugees and asylees a say in the affairs of the schools that their children attend and of the towns where they pay taxes.  MeBIC is not opposed, in theory, to municipalities deciding to let noncitizens vote on local issues.  But it appears Maine’s Constitution already prohibits that, making this bill unwarranted.

On January 27, 2021, Immigration and Customs Enforcement (ICE) announced that requirements for employers to review in person the employment eligiblity documentation of employees who would be working remotely will continue to be relaxed through March 31, 2021, due to COVID-19.

Employers can find the announcement with links to the details here.

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

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

---

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

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

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

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

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

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

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

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

 

 

 

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

The incoming Biden administration should end these bans.

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

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

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

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

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

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

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