Author: Beth Stickney

UPDATE:  The Administration published the proposed rule on November 2, 2020.

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The administration announced the imminent publication of a proposed rule disrupting the H-1B visa petition process for employers seeking to employ foreign-born professional individuals in specialty occupations.

There is no question that the H-1B system is seriously flawed, largely stemming  from Congress, decades ago, setting unrealistically low annual caps of 65,000 H-1B visas for those with bachelors degrees, plus 20,000 visas for those with at least a masters degree.   Typically, each year, employers file cap-subject petitions far exceeding the number of H-1B visas allowed under the cap.  For FY 2021, the administration received H-1B registrations for more than 274,000 positions.

In response, USCIS established a lottery system to select which employers’ petitions would be processed under the cap.  The proposed rule would replace the lottery with a selection process based on salary, favoring the highest salaried positions.  The administration itself estimates that at least 45% of positions for which employers sought H-1B visas for FY 2021 would not qualify to be selected had the proposed rule’s terms already been in effect.

This proposed change follows an October 8, 2020 interim final rule that took immediate effect which compels employers to pay higher wages to their H-1B employees, in many cases far exceeding the prevailing wage for the job when offered regardless of immigration status.

Coupled with the new final rule, the proposed rule will ensure that industries or sectors that require specialized knowledge but in fields that pay less than other industries will be unable to get H-1B visas for talented foreign born professionals.  Many of these individuals obtained their higher education in the U.S. and may have already started working for their employers while they were international students.  Recent international higher education graduates generally, who typically are paid less than employees with years of work experience, will likely be shut out of H-1B eligibility.

This Forbes analysis provides more details about the proposed rule and its potential to damage the U.S.’s ability to attract foreign students and talented foreign workers, to the detriment of the economy.

Public comments are due on or before December 2, 2020.  MeBIC will submit a comment opposing this proposed rule.

 

The White House formally announced that refugee resettlement to the U.S. in FY 2021 will be capped at 15,000, the lowest number, by far, since enactment of the Refugee Act of 1980.  In contrast, in FY 1980, the U.S. resettled over 207,000 refugees.  The administration had previously signaled this lowest-ever cap, but it was not official until the announcement.

Maine received 40 individuals for refugee resettlement in FY 2020, when the administration capped refugee admissions at 18,000 but admitted only 11,814.  This is a sharp reduction from FY 2016, when nearly 85,000 refugees were resettled in the U.S., including 650 in Maine.

The administration’s position is an abdication of the U.S.’s prior leading global role in providing humanitarian protection to those forced  to leave their countries to seek safety.  But in addition to this rejection of the nation’s values, the reduction has a real impact on the nation’s, and Maine’s, economy and labor force.

As Maine’s workforce ages, and the population of over-65 year olds exceeds the number of under 18 year olds who will eventually comprise Maine’s workforce, Maine needs immigrants, including refugees, to keep Maine’s workforce vibrant.   Refugees have been a reliable source of newcomers to Maine since at least 1980, but federal policy since 2017 has put a stranglehold on this source of new contributors to Maine.   Fewer refugees were resettled in the state cumulatively from FY 2017 through FY 2020 than in FY 2016 alone.

A comparable reduction has been experienced in Erie, Pennsylvania, which received over 600 refugees in FY 2016 and only 44 refugees in FY 2020.  This Marketplace report discusses the economic impact of reduced refugee resettlement there, that is mirrored in Maine.

The administration has put foreign workers in its crosshairs, costing U.S. businesses hundreds of billions of dollars.

In June 2020, a Presidential Proclamation barred the entry of most foreign workers through the end of 2020 with the stated goal of preventing job competition.  A new Brookings Institute working paper estimates that this action immediately  cost 471 Fortune 500 companies over $100 billion in lost market valuation.

Doubling down, on October 8, 2020, the administration released interim final Department of Labor (DOL) and Department of Homeland Security rules without any prior notice and public comment period, that attack the current H-1B specialized occupation foreign professional worker visa program and the professional worker permanent residency process.   In the preamble to the DOL rule, the administration estimates that the effects of the new rule, including lost access to talent, turnover costs, and having to pay any foreign workers more than they would pay comparable U.S. workers, will cost U.S. businesses more than $198 billion over the next 10 years.

The rules, which took effect immediately, apply to current, not just to future foreign professional workers.   In a press conference, U.S. Citizenship and Immigration Services Senior Official Performing the Duties of the Director Ken Cuccinelli stated that the administration expects up to a third of the hundreds of thousands of H-1B visa holders currently working in the U.S. would not qualify for renewals of their status under the new rules – leaving their employers, and their communities, high and dry.

Maine currently has hundreds of H-1B visa holders working in our hospitals, colleges and universities, biotech and biopharmaceutical, research, high tech, and other businesses and facilities in every corner of the state. 

Apart from the financial toll of the administration’s attacks on the viability of the H-1B and employment based immigration programs, the potential harm to our nation’s health care system, where thousands of H-1B professionals serve, including over 70 in Maine in FY2019 (the last full year for which data is available), during a pandemic is staggering.

A federal court ruling partially blocked application of the Presidential Proclamation for the remainder of 2020, and lawsuits have been filed challenging the new rules.   Let’s hope the court system permanently reins in these costly and damaging attacks by the administration.

On October 8, 2020, as this prior post explains, the administration issued new rules raising substantial new barriers to employers that want to petition for residency or for temporary work visas for talented foreign workers.  The rules dramatically increase the amount that foreign workers must be paid  to far exceed the prevailing wage, and also narrow the definition of “specialty occupation” to exclude whole swaths of historically eligible occupations.

On October 19, 2020, the U.S. Chamber of Commerce, together with the National Association of Manufacturers, other associations and universities, including the Presidents’ Alliance on Higher Education and Immigration, California Institute of Technology, Cornell, Stanford and University of Southern California filed a lawsuit challenging the new rules issued by the Departments of Labor and of Homeland Security.

Another lawsuit was filed on October 16th by Purdue University, joined by other universities, tech companies and associations including the Information Technology Industry Council, challenging the Department of Labor’s rule impacting  the H-1B visa program.

Both lawsuits seek to enjoin application of the new rules, which broke with the norm by being issued as interim final rules, taking effect without providing the prior notice and a public comment period required for proposed rules.

The new rules will cause extreme disruption for employers and employees alike, since they apply not only to future, but also to  current professional level employees on H-1B visas or whom employers are sponsoring for employment-based permanent residency.

As the complaint in the U.S. Chamber of Commerce lawsuit states,

These rules are extraordinary: If left unchecked, they would sever the employment relationship of hundreds of thousands of existing employees in the United States, and they would virtually foreclose the hiring of new individuals via the H-1B program. They would also gut EB-2 and EB-3 immigrant visas, which provide for employment-based permanent residence in the United States.

The complaint notes that H-1B professional workers

perform crucial services where U.S. labor markets lack capacity, boosting economic output and helping businesses grow. They meet essential needs in underserved communities; more than 10,000 physicians are employed each year via the H-1B program to provide medical services, many in remote areas. H-1B workers are critical members of U.S. higher education institutions, performing ground-breaking new research and educating thousands of American students. All this productivity, in turn, creates net new jobs for the domestic labor market. And H-1B visa holders inject ingenuity, entrepreneurship, and cultural diversity across the United States.

This summary holds true in Maine, where hundreds of H-1B visa holders are serving our communities in hospitals from York to Aroostook counties, working at Maine’s colleges and universities, and at leading innovation employers including IDEXX, JAX, Tyler Technologies, and WEX.

For more information about the extreme changes made by the new rules, the impact they will have, and the lawsuits challenging them, see these analyses in Forbes here, and here.

On April 22, 2020, a Presidential Proclamation banned the entry of most new immigrants to the U.S. for sixty days, with the stated goal of preventing new permanent residents for competing for U.S. jobs during the pandemic.  On June 22, 2020, a second Presidential Proclamation was issued banning the entry of most temporary foreign workers, and extended the ban on new immigrants through December 31, 2020.

On October 14, 2020, a lawsuit by 181 U.S. citizens and permanent residents, whose visa petitions for their spouses or parents or children had been approved, challenged the legality of the ban on immediate family immigrants and requested an injunction.  Each of the plaintiffs’ relatives had been in the final stages of applying for their immigrant visas at the appropriate U.S. consulates abroad when the State Department stopped processing their visas due to the Presidential Proclamation.

The plaintiffs have asked the court to order the State Department to resume processing their family members’ immigrant visas, and have asked for an expedited hearing on November 12, 2020.

In a separate lawsuit, a federal court has already blocked part of the Presidential Proclamation banning entry of most foreign temporary workers, which may help the plaintiffs succeed in their efforts to be reunited with their immediate family members.

 

Fiscal year 2020 ended on September 30, 2020, and an analysis of governmental data shows that legal immigration to the U.S. fell by 92 percent in the second half of the fiscal year.

The Cato Institute analysis compares the rate of immigration to historical rates and finds that

The 92 percent drop in the second half of FY 2020 is larger than the drop during any single year in American history—larger than the 73 percent decline in 1915 coinciding with the start of World War I, larger than the 70 percent decline in 1925 coinciding with Congress closing legal immigration from Europe, larger than the 63 percent declines in 1931, 1942, and 1918 following the onset of the Great Depression and U.S. entries into each world war.

The drop is not a necessary byproduct of the COVID-19 pandemic, although the administration has seized upon the pandemic to close the nation to entry of virtually all immigrants from abroad, and to most foreign workers (both actions leading to ongoing challenges in the federal courts), when less severe measures, such as requiring all new immigrants to quarantine for two weeks upon arrival could have sufficed.   The drop also springs from capping FY 2020 refugee resettlement at record lows and issuing regulations designed to slash immigration by immediate families of U.S. citizens and permanent residents, among other changes to the nation’s legal immigration framework that preceded the pandemic.

As the Cato Institute notes,

This historic slowdown is important for both the short‐​term and long‐​term economic growth of the United States. Fewer workers mean that jobs will take longer to fill and slow the economic recovery, and in coming years, fewer workers will support more retirees. If the United States remains closed long enough, it could push worldwide patterns of immigration away toward other countries with more welcoming policies.

The administration continues to introduce changes that will cut even skills-based immigration, such as new interim final rules announced on October 8, 2020.   The administration’s hostility to immigration should give us all pause.

UPDATE:  In a lawsuit filed by the U.S. Chamber of Commerce and others against the new DOL and DHS rules described below, on December 1, 2020, a federal court struck down  the new rules.   In a separate lawsuit filed by Purdue University and others challenging the DOL rule, another federal court ruled against the government on December 14, 2020.   The government cannot  implement the new rules as a result of these rulings.

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The Departments of Labor and  of Homeland Security, in an unusual move, issued two interim final rules on October 8, 2020 raising new barriers to employers who seek to gain H-1B visas for specialty occupation temporary professional workers, or who are petitioning for permanent residency for their foreign employees.  The administration estimates that the new H-1B rules will cost employers $4.3 billion over a decade, and result in at least a third fewer approvals annually of H-1B visa petitions.

The Department of Labor (DOL) rule, effective on October 8, 2020 and applicable to applications already filed and pending with the Office of Foreign Labor Certification’s National Prevailing Wage Center (NPWC) as well as to petitions filed on or after that date, substantially increases the amount that employers must pay the employees for whom they seek H-1B visas or permanent residency.   The Department of Homeland Security (DHS) rule, effective on December 7, 2020,  changes decades-long definitions of key terms applied in the H-1B visa context such as “specialty occupation”, “employer-employee relationship” and “worksite”,  to make fewer positions eligible for H-1B visas.  It also shortens the duration of  H-1B visas from 3 years to one year in some cases, and provides for increased worksite inspections of employers of H-1B visa holders.

This Forbes article provides an analysis of the substantial changes made by these interim final rules.   A more detailed analysis of the changes and their detrimental impacts can be found here.  A further critique pointing out the use of flawed wage data in the DOL rule by the Cato Institute is here.

Ordinarily, new rules are issued as proposals and do not take effect until the public has had the opportunity to comment on them, and the administration has been able to consider and sometimes make changes based on the comments.   It is striking that the administration chose to issue these changes as interim final rules, a mechanism to be used only in exceptional cases where urgency is required, a circumstance that doesn’t apply here, given that these changes have been in the works since at least 2017.  Should the November 2020 presidential election result in a new administration, it could simply jettison a proposed rule and never finalize it.   An interim final rule must go through a review process and will take much longer for a new administration to revoke.

The U.S. competes worldwide for the best and the brightest who contribute to innovation and a vibrant U.S. economy.   Hundreds of H-1B visa holders work in Maine, including in hospitals from York to Aroostook county, providing critically needed healthcare.  They also are employed in Maine’s universities and colleges, in our biotech and medical research facilities, in high tech and many other sectors.  In the past three years, over 100 Maine businesses have benefited from access to the global talent that the H-1B and permanent residency processes provide, benefiting Maine’s communities and economy as a whole.  

The new regulations are likely to result in many businesses nationwide choosing to offshore their employees or to locate offices in other countries such as Canada, doing more harm to the U.S. economy than good as the U.S. tries to emerge from the pandemic.

Public comments opposing the new rules will be due on November  9th (DOL rule) and December 7th (DHS rule).  MeBIC will be opposing both rules.

Registration for the Diversity (DV) lottery for fiscal year 2022 will be open from noon (EST) on October 7, 2020 through noon (EST) on November 10, 2020.  Click here for a MeBIC one-pager about DV-2022 that employers can share with immigrant employees who don’t yet have permanent status in the U.S.

The DV lottery allows foreign-born individuals, whether they are outside of or in the U.S., to apply for a chance to become a U.S. permanent resident.    A person selected next spring after registering this fall for the DV-2022 lottery will able to apply for permanent residency (the “green card”) at the start of FY 2022 on October 1, 2021.  S/he may be able to apply with USCIS, if s/he is already in the U.S. and is otherwise eligible, or else may apply with the State Department for an immigrant visa at the appropriate U.S. consulate abroad.   The person will undergo the usual medical exam and criminal and security background checks before being interviewed or approved to immigrate.

The lottery is pure luck.  But ordinarily, up to 50,000 people gain residency each year because they happened to be lucky. (In 2020, a Presidential Proclamation announced during the COVID-29 pandemic blocking entry of most immigrants, prevented over 30,000 DV-2021 lottery winners from immigrating.)

A person who is in the U.S. on a work permit, such as an asylum seeker, who entered the U.S. legally and has never violated her/his status, can register for the lottery and if selected, may be able to get her/his green card through the lottery without having to leave the U.S..   Registering for the lottery doesn’t adversely affect a person’s current status or any other applications already pending with USCIS.

Individuals in the U.S. who have been out of status should talk with an immigration lawyer before bothering to apply, since time out of status may make it impossible to get a green card, even if selected in the lottery.

Eligibility requirements for the DV-2022 lottery include:

• Not being from one of the ineligible countries (see list in the announcement), or having a spouse or parents from one of the eligible countries;
• Having completed high/secondary school in the U.S. or abroad (a G.E.D. is not sufficient); or
• Having worked for at least two years of the previous five years in a skilled trade, which is one that takes at least two years to become qualified in it.

There is no minimum age requirement, although people under 18 may not qualify if they haven’t yet met the education or skills requirement.

Applicants must have a valid, unexpired passport at the time of registering for the DV lottery. As a practical matter, this may make it impossible for many people to apply, whether they are already here in the U.S. or are abroad, because they may be unable to get a passport in time, or at all.

An individual may only submit ONE lottery application.  If more than one is submitted, the person will be disqualified.  However, spouses can include each other, giving them two chances to be selected (but each spouse must meet the eligibility requirements).  All children who are unmarried and under 21 must be included on the registration application in order to be allowed to immigrate if their parent is selected in the lottery.

Employers in Maine with employees currently working with work permits, such as asylum seekers, should encourage their employees to get additional information about eligibility to register for the lottery.  While it’s a long shot, many asylum seekers have won the lottery in the past and gained residency through it while their asylum cases remained stuck in processing backlogs.

Note that lottery registration is FREE.  Instructions and the application form are posted on the State Department’s website.  Those signing up for the lottery from inside the U.S. should avoid any website that asks for a fee to register, and also avoid people who are not lawyers or authorized by the Board of Immigration Appeals to provide immigration law assistance, who ask for money to “help” with a lottery application.  Unauthorized practice of law is illegal in most states, including in Maine.

MeBIC has a one-pager about the rules for the DV-2022 lottery that can be shared with interested immigrants who don’t yet have permanent status in the U.S..  MeBIC is available to come and talk with employees at Maine businesses and nonprofits to help them understand whether it may or may not be worth it for them to register.  Contact MeBIC for more information.

 

On October 1, 2020, H.R. 8337, the Continuing Appropriations Act 2021 became law, to fund U.S. governmental operations through the end of 2020.

The bill included language amending the immigration laws to allow for the expansion of “premium processing” of petitions filed with U.S. Citizenship and Immigration Services.  Premium processing has enabled employers to pay a premium over and above the regular filing fees, in order to get faster processing of immigration petitions for foreign workers.

The new premium processing law included in the budget bill will increase the premium processing fee to $2500 per petition in many cases, but caps the fee at $1500 for employers seeking speedier processing of petitions for H-2B seasonal non-agricultural employees, and for religious workers.

The law also expands the types of petitions where premium processing can be used, and opens up the door for USCIS to allow for premium processing of any type of immigration petition or application, including immediate family petitions.  Premium processing has to date been limited to employment based petitions.

USCIS has not yet announced when it will begin implementing these changes.  A more detailed explanation of the new law can be found in this analysis in Forbes

On October 2, 2020, the administration released a proposed rule that is yet another in a series of changes to drastically reduce the ability of immediate family members of U.S. citizens and permanent residents to get permanent residency in the U.S.

Immediate family members typically make up about two-thirds of all immigrants to the U.S. annually, including here in Maine.  Without them, since 2010, Maine would have experienced net population loss, with the further shrinkage of our labor supply and of the school age population who will be Maine’s future workforce and community leaders.

The proposed rule affects both who can file an “Affidavit of Support” form, which is required in the vast majority of immediate family immigration cases, and what information must accompany the form.  It would delay or in some cases make it impossible for some U.S. citizens and permanent residents to live together in the U.S. with their spouses, children, parents or siblings simply because they are not well-off.   That’s a violation of our values, as well as bad policy for an aging nation with low birth rates.   Public comments are due on November 2, 2020.  Guidance on submitting a comment to oppose the rule appears below.

Under the proposed rule, an Affidavit of Support “sponsor” would have to provide:  routing information and account numbers of all bank accounts; credit scores or proof that the sponsor has no credit history; three years of tax records, in contrast to the current one year requirement, including certified copies from the IRS for at least the two years prior to the most recent tax year.

In addition, sponsors with incomes sufficient to satisfy the Affidavit of Support threshold who have received any public benefits in the prior three years would be required to find a joint sponsor.  This means that a person now earning six figures would need to find a joint sponsor in order for their immediate family member to immigrate, if, for example, they received food stamps three years ago when they were a full time student with a low income.

The proposed rule also would let the sponsor include only their spouse’s income together with their own, in “household income”.   Currently, the sponsor can include the incomes of other relatives they live with who contribute to the household’s expenses.

The administration says the proposed changes would prevent new immigrants from getting public benefits.  But immediate family member immigrants are already prohibited from getting any means-tested public benefits for their first five years after immigrating, unless they accumulate 40 qualifying quarters of work or become U.S. citizens before then.

By raising barriers to execution of the Affidavit of Support, immediate family members of U.S. citizens will be prevented from getting residency, as the rule’s preamble acknowledges when it states that  the “impact of this proposed provision could be a reduction in the number of immigrants granted an immigration benefit in cases where the intending immigrant is unable to submit a sufficient Affidavit.”

This rule continues a pattern of regulatory changes, including the public charge rule finalized a year ago, and the recent proposed rule to require Affidavit of Support sponsors to submit biometrics, including fingerprints, iris and voice prints, that will reduce critically needed immediate family immigration to the U.S., and to Maine.

Public comments will be accepted through November 2, 2020.   MeBIC will submit a comment opposing this proposed rule.    The more comments opposing this rule, the better.   See suggestions below if you would also like to comment in opposition before the deadline of 11:59 p.m. on November 2nd.

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To submit a comment, go to this Federal Register page  and click on the Submit a Formal Comment button.  You can then add your comment in opposition.  Feel free to use any or all of the suggestion paragraphs below.

• I write to oppose this rule because families have been the backbone of immigration to the U.S. for centuries.  Immediate family members of U.S. citizens and permanent residents deserve to be able to live together with their petitioning relatives here in the U.S.   Living together leads to healthier and more economically secure families, who in turn contribute to vibrant communities, a dynamic workforce, and a strong U.S. economy.    The stated motive for the proposed rule’s changes are to prevent new family immigrants from getting public benefits, but they are already ineligible under current law from receiving benefits during their first five years of residency.  The benefit to the government of these changes is therefore minimal to nonexistent, in contrast to the harm these changes would inflict on families and on the economy.
• The proposed changes to the affidavit of support documentation requirements are unnecessary and raise significant privacy concerns.  Specifically, the government should not require that affidavit of support sponsors provide their bank account routing and number information, nor credit reports.    Credit reports are not indicative of a person’s ability to support another person, and the affidavit of support form already requires persons who list assets  such as bank accounts,= on the form to do so accurately, under penalties of perjury.   The requirement that a person submit  three years of tax returns, instead of the current requirement of just the prior year’s tax return, is also unnecessary and overly onerous, as is the requirement that copies of tax returns must be certified copies from the IRS that the sponsor must pay to obtain.  This could discourage joint sponsors in particular from filing the affidavit of support.
• The proposed change requiring a petitioning U.S. citizen or permanent resident who has received public benefits in the past three years to get a joint sponsor for their immigrating relative, even if the petitioner has an income far exceeding the affidavit of support’s income level, is arbitrary and will unnecessarily divide families.   A petitioner with a six figure income currently who three years ago was a full time graduate student pursuing a professional degree and working only 20 hours a week at $15.00 per hour, far above minimum wage, would have qualified for food stamps.  That person’s low income and food stamps receipt while a graduate student is irrelevant to their current ability to support the family member(s) whom they are petitioning to immigrate.   Due to the current legal liability of affidavit of support sponsors,  joint sponsors should only be required when the petitioner lacks the current ability to meet the affidavit of support income thresholds.
• Eliminating the affidavit of support sponsor’s ability to count the income of family members, other than the sponsor’s spouse, with whom the sponsor lives and whose incomes are contributing to the total household income ignores the fact that many immigrant families live in extended family households, which often help them save money as they get on their feet in the U.S.  A sponsor’s expenses are indeed lowered when their household members contribute to the household expenses.  When those household members agree, as permitted under current regulations via signing the I-864A form, to have their incomes included with the sponsor’s income, and to be liable to support the new immigrant along with the sponsor, they should be able to be counted in the sponsor’s income equation.
• Requiring the sponsor to include in their household size all individuals for whom the sponsor has previously executed an affidavit of support, even if the person never immigrated, or has since become a U.S. citizen and so the sponsor has no support obligation for them, is arbitrary and unfairly raises the income threshold that the sponsor must meet.   The current standard requiring the sponsor to list only those they have sponsored who are currently permanent residents for whom their obligation is ongoing, is the proper one.
• Collectively, these changes will increase the incomes that sponsors need to show, and discourage joint sponsors from assisting petitioners who need a joint sponsor.  This will result in prolonging family separations or could prevent spouses, children, parents and siblings of U.S. citizens and spouses and parents of permanent residents from ever immigrating.   This is contrary to our nation’s values and also to our need for immigrants and the energy and vitality they bring to our country.
• The proposed rule changes should be withdrawn in their entirety.

In an important win against executive overreach and for the economy, on October 1, 2020, a federal  court blocked the administration’s latest ban on entry targeting most temporary foreign workers.  The injunction applies only to the plaintiff companies and associations, and to those associations’ members.  Those are:  U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation, TechNet, and Intrax, Inc.  While it’s not a nationwide injunction, it’s a critically important ruling that paves the way for future lawsuits against the ban.

On June 24, 2020, a Presidential Proclamation took effect banning entry into the U.S. through the end of 2020, with potential for extensions, of most temporary foreign workers, including H-1B specialized knowledge professionals (unless working in healthcare positions), L-1 employees of multinational companies, H-2B seasonal non-agricultural workers (unless working in food supply chain jobs), and J-1 cultural exchange visa holders who work in positions varying from au pairs to summer camp counselors and more.

The stated reason for the entry ban was to reduce job competition until the U.S. economy recovers from the pandemic-induced downturn.   Citing ample evidence that contrary to the Presidential Proclamation’s premise, foreign workers have a positive impact on jobs and the economy, the plaintiff companies and associations challenged the legality of the ban and asked the court to block it.

Siding with the plaintiffs, the court summarized their evidence that the entry ban

will result in the disruption of business operations, interference with existing employees, the closing of open positions, the furlough or laying off of employees, substantial pay cuts, threatened loss of prospective customers, shutting down of entire programs, inability to make capital investments, and the likelihood that some businesses or cultural programs will have to cease operations altogether.

The court found that the President exceeded his authority,  stating that

there must be some measure of constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.

The injunction means that U.S, Citizenship and Immigration Services and the State Department must resume processing employer petitions and nonimmigrant visa applications for temporary foreign workers who would be employed by the named plaintiffs and their member businesses, while the litigation challenging the President’s ban continues.

While the case is not yet over, the ruling was an important win for the economy.

 

The President has announced that the administration will cap refugee resettlement for FY 2021 (October 1, 2020 to September 30, 2021) at 15,000 refugees.

This continues the fourth straight year of the administration’s stranglehold on refugee resettlement, with the prior caps set by the President at 45,000, then 30,000, and then 18,000 for the just-ended 2020 fiscal year.  But while final FY 2020 figures were not available at this writing, as of September 25th, only 10,892 individuals had actually been resettled here, the lowest number since at least 1975.   Only 40 refugees were resettled in Maine in FY2020.   In comparison, in FY 2016, the U.S. resettled 84,994 refugees, with about 650 resettled in Maine.

In the past three years, the U.S. has abdicated its moral and legal obligation under both U.S. and international law to provide safe haven to those forced to flee their homes, and has gone from being a world leader in refugee resettlement to resettling fewer than all other resettlement countries combined.

The record low refugee cap cannot be seen in a vacuum.   As this Wall Street Journal article (paywall) notes:

Mr. Trump has made restricting refugee admissions a key piece of his broader effort to reduce nearly all forms of immigration. He has said the program might allow terrorists to enter the country, though refugees face more security checks than other immigrants.

He has also said that refugees are a drain on public resources, despite the positive economic impact refugees have on the country, as well as the social contributions they make to their communities nationwide.

Given the record nearly 80 million people (or 1 of every 97 humans) who are permanently displaced and in need of resettlement worldwide, and Maine’s and the nation’s aging demographics and shrinking workforce, the administration’s decision to turn its backs on refugees represents a moral, human rights, and also an economic failure.

 

 

 

A federal court has blocked a new rule due to take effect on October 2, 2020 that would increase the filing fees for many immigration applications.   The ruling applies nationwide, and means that the fees, and access to fee waivers for low-income individuals, will remain unchanged while the litigation challenging the fee rule is ongoing.

The new fee rule would raise the filing fees for many of the most common immigration applications, including for naturalization to U.S. citizenship, work permits, and permanent residency.  Also, for the first time ever, the fee rule would have the U.S. join only three other countries in the world requiring asylum seekers to pay to request asylum, and would also make asylum seekers pay $550 when finally eligible, a full year after requesting asylum, to apply for a work permit in order to support themselves.

The court ruled that the plaintiffs had raised serious questions about the legality of the new fee rule and had shown a likelihood that they would prevail in their arguments that the rule was invalid due to arbitrary and capricious reasoning backing the fee increases, and because the rule was issued by Acting Secretary of the Department of Homeland Security Chad Wolf and his Senior Official Performing the Duties of Deputy Secretary of Homeland Security Kenneth Cuccinelli, who both had been found to not be legally installed in their positions.

There is little doubt that the government will appeal.

The administration continues its assault on legal immigration, this time through a proposed regulation issued on September 25, 2020 that would impose strict time limits on the duration that foreign students or “exchange visitors”, and international journalists are allowed to stay in the U.S.  Comments on the proposed rule are due by October 26, 2020.

For decades, international students and exchange visitors have been admitted for “duration of status.”  As long as they were complying with the terms of their visas, they could remain for the duration of their programs.   For example, an international student initially admitted to pursue a bachelor’s degree, who decides to continue on to get a master’s degree, and then to get doctorate, would remain in status for the entire time.  International journalists would remain in status for as long as their employment with the media outlet sending them to the U.S. lasts.

The proposed rule would  instead impose fixed time limits  so that, in the prior example, the foreign student coming to the U.S. for a bachelor’s degree would be limited to four years.  If the student decided to continue on to get a masters degree, the student would need to apply for an extension of stay, and would have to do so again to pursue her doctorate.  The rule would also limit the stays of foreign students from dozens of countries to only two years, even if the expected length of their program is four years. Countries subject to these stricter limits include Iran, North Korea, Sudan, and Syria, and also more than fifty countries whose international students or exchange visitors purportedly have “overstay” rates higher than 10 percent.   An independent analysis however, has found that the rule’s cited data on the overstays is inflated.

The proposed rule would also reduce the grace period that international students have after completion of their studies from 60 to only 30 days, making it harder for them to timely extend or change their visa status.

This rule will likely make the U.S. a less attractive destination for international students, who make up the majority of graduate students in the U.S. in STEM fields.  As a recent analysis points out, the proposed rule will not only increase the costs (and the paperwork involved) for international students, but by the administration’s own estimates, it will also add over 360,000 extension applications to U.S. Citizenship and Immigration Services’ workload annually, adding to processing backlogs and creating uncertainty and delays for students.

This regulation is being proposed after a federal court enjoined the administration’s attempt through a policy revision to make it easier for foreign students to fall out of status, which would have then delayed or made it impossible in some cases for them to continue further studies or to change status or gain permanent residency through work for a petitioning employer.

International students not only add diversity to the student bodies of U.S. colleges and universities at the undergraduate and graduate levels, but they comprise a critical component of the U.S.’s future workforce.   As the Business Roundtable said in a 2019 report, “International students are a key source of talent for companies in advanced Western economies.”

International students also provide a huge boost to the economy during their studies.   In the 2018-2019 academic year alone, international students contributed over $41 billion to the U.S. economy and  supported more than 458,000 jobs.  In Maine, they contributed over $51 million, and supported 421 jobs.

You can read a brief summary of the proposed rule’s changes here.  A full analysis of the impact of the proposed rule, and the flaws in the data on which the proposed changes are based, can be found here.

The U.S. has already experienced three years in a row of declining international student enrollments, while Canada has seen double digit increases during the same period.  In the global competition for international students and their talent, this new rule would put the U.S. at a further disadvantage.  MeBIC will be commenting to oppose this proposed rule.

 

A recent analysis of data by the Cato Institute finds that the immigrant share of the U.S. population in 2019 failed to grow for the second straight year, and fell below Census Bureau’s projections.

The immigrant share of the U.S. population stayed steady in 2019 at 13.7%, the same as in 2018, and below the high points reached in 1880 and 1910, when immigrants were 14.8% and 14.7%, respectively, of the U.S. population.

Department of Homeland Security data indicates that the number of new permanent residents dropped by over 150,000 individuals, or nearly 13%, between FY 2016, and FY 2019.   The Cato Institute concludes that

it’s lower legal immigration and more immigrants leaving that is driving the decreases in immigrant population growth in the United States.

In a normal environment, immigration should have increased when unemployment reached historic lows. But the president’s anti‐​immigration policies made that impossible, increasing deportations and imposing many new regulations on legal immigration.

The Cato Institute also analyzed recent global data and found that the U.S.  ranks in the bottom third of wealthy nations for its foreign-born population share, and for the growth in that population during the past three years.

The average wealthy country had a foreign‐​born population share of 30 percent, double the U.S. share. The United States similarly ranked 39^th for per‐​capita increase in its foreign‐​born population from 2017 to 2019. Its population grew 0.27 percent from foreigners compared to an average of 1.8 percent for all wealthy countries.

The dramatic drop in refugee resettlement, and the bans on entry of most new immigrants  that have been in place since April 24, 2020 and will remain at least through December 31, 2020, are likely to cause an even steeper decline in new immigrants to the U.S. in FY 2020.

As the nation’s population becomes increasingly aged, with Maine at the unfortunate upper end of that curve, the trend of lower immigration does not bode well for the nation’s, and the state’s, demographic future if it is not reversed.

You can read the Cato Institute‘s analysis here.