Federal Court Strikes Down Harmful DOL and DHS Rules

On December 1, 2020, a federal court struck down two new interim final rules issued by the Department of Labor  (DOL) and the Department of Homeland Security (DHS) on October 8, 2020  aimed at drastically reducing the ability of U.S. employers to petition for immigrant visas or temporary H-1B specialty occupation visas for talented foreign professionals.  The government stated the rules were necessary to prevent foreign job competition with U.S. workers as the nation grapples with the economic effects of the pandemic.

The DOL rule dramatically inflates the wages, in many cases far above market rates, that employers must pay to be able to successfully petition for foreign employees.  The DHS rule would drastically narrow the definition of “specialty occupation” and also limit H-1B visas to one year rather than three for employees whose employers would have them work at clients’ worksites. The DOL rule took effect immediately on publication, and the DHS rule was slated to take effect on December 7, 2020.

The U.S. Chamber of Commerce and other trade associations and businesses sued.  In its ruling in their favor, the federal court  found that the administration did not have the good cause that is required if the government is to circumvent the normal process of issuing proposed rules that  allow for public comment before rules are finalized.

While the government argued that the pandemic created emergency conditions enabling it to ignore the normal notice and comment process for rulemaking, the court disagreed, holding instead that the government had “unduly delayed” publishing rules that it had been working on since 2017.  The court noted that the administration’s justification of “skyrocketing” unemployment was undercut by the administration’s failure to issue the rules six months previously, when unemployment due to COVID-19 was at its peak. Further undermining its argument was the administration’s own data showing unemployment for jobs requiring at least a bachelor’s degree, as is required for H-1B visas and professional immigrant visas, at 4.8% in September 2020 (down from 8.4% in April 2020).

The court’s ruling vacates the new rules immediately.   The government is likely to appeal.  A Biden administration may take a very position on these rules, however, and decide not to defend the rules against legal challenges.

New Naturalization Test Makes Questionable Changes

U.S. Citizenship and Immigration Services announced changes to the Civics test required of most applicants for U.S. citizenship.   The new test will apply to naturalization applications filed on or after December 1, 2020.  It raises the question of the motive behind the changes, given that they are unlikely to produce “better” citizens, and given the ideological or inaccurate answers provided for some of the new or amended questions.

Applicants to naturalize have historically been asked questions about U.S. history and government from a list of 100 questions.   A 60% minimum score is required to pass, based on answering at least 6 of 10 questions asked during an oral interview.

The new test introduces 88 new questions and increases the list of possible questions to 128.  Naturalization applicants will be asked 20 questions and must answer at least 12 correctly.

More concerning than the increased number of questions are the civics test content changes, and the process by which the revisions were made.  As the Catholic Legal Immigration Network (CLINIC) has pointed out,

No evidence has been put forth why these major revisions to the test are needed. Furthermore, unlike the previous process for updating the test, USCIS has made these proposed changes largely in secret, with no opportunity for stakeholder engagement or input. That previous process involved six years of study and analysis with a great deal of input from subject matter experts, including the National Academy of Sciences. Further, the previous process included a four-month long pilot with over 6,000 volunteer applicants at 10 USCIS locations across the country. We understand this new test was piloted with less than 250 applicants over just five weeks.

Some questions have taken on a decidedly ideological slant.  For example, the prior version of the civics test asks  “Who does a U.S. Senator represent?”, and provides the accurate answer “all people of the state”.   The new version asks the same question, but provides the legally incorrect, ideologically-biased answer “(c)itizens of their state”.  The new test provides the same incorrect answer about U.S. Representatives.

Other questions in the new version require more answers to be approved as correct, such as naming three, rather than the previous two, promises that an immigrant makes when becoming a U.S. citizen, or naming five of the original thirteen colonies, rather than three, as required in the previous test.

In addition, some of the new questions are confusing and their suggested answers are not necessarily correct, such as a question about how many Supreme Court Justices are needed to decide a case.  The acceptable answer provided is five, but the number of Justices needed to decide to hear a case is four.

Like the prior test, the new test asks questions that many native born U.S. citizens, who may not have studied U.S. history outside of an obligatory high school class, would be hard pressed to answer, such as the name of an author of the Federalist papers, the name of the territory purchased by the U.S. in 1803, the name of one leader of the women’s rights movement in the 1800s, or the significance of the stars and stripes on the U.S. flag.

Finally, the test asks some questions where the “correct” answers seem limited or arbitrary, such as one asking for an example of American innovation, and provides the following answers that would be accepted as correct:  light bulb, automobile, skyscrapers, airplane, assembly line, moon landing, and integrated circuit.

In addition to increasing the filing fee to apply for citizenship by 83% (currently blocked by a federal court injunction), the administration’s civics test revisions raise another potential barrier for permanent residents who hope to become citizens.

Public comment is being accepted through December 14, 2020.   If you’d like to comment opposing these changes, CLINIC has a comment portal here.

The full list of questions can be viewed here.

 

Governor’s Economic Recovery Committee Recognizes Immigrants’ Importance to Maine’s Economy

The Governor’s Economic Recovery Committee (ERC), which has met continuously since May 2020 to respond to the devastating impact of COVID-19 on Maine’s people and economy, has released its final report.   The report, Recommendations to Sustain and Grow Maine’s Economy, follows on a July report and focuses on bridging from the pandemic emergency to the goals of the Governor’s 10 year strategic economic development plan.

Like the 10 year plan, the ERC’s final report recognizes that to grow Maine’s economy and support talent development, Maine must be more welcoming of immigrants and supportive of people of color.  The report also stresses that Maine must intentionally and thoughtfully address systemic inequities that impact every aspect of the lives of Black, Indigenous and other People of Color, including many immigrants.

MeBIC was invited to submit information and ideas to the ERC’s Education and Workforce Subcommittee, and to its successor Talent Attraction and Development Subcommittee.  Immigrants, like native born Mainers, need affordable and high quality childcare, housing, transportation, and equal access to basic safety net supports.  But MeBIC stressed that many immigrants also have specialized needs, such as for additional English as a Second Language classes, or combined ESL/job skills classes, or for improved driver’s license access.  These and other initiatives are critical for Maine to be a leader in helping immigrants reach their full potential, which in turn will help Maine attract and retain these important community members.

MeBIC will be working in the upcoming legislative session on bills aimed at addressing these needs.

You can find the full ERC report here.

New Regulation Creates Cash Bond Requirement for Some Would-Be U.S. Visitors

In a new temporary final rule to be effective from December 24, 2020 to June 24, 2021, the Trump administration has rolled out a pilot program requiring some who wish to visit the United States for business or pleasure to pay bonds of $5,000, $10,000 or $15,000 as a condition of visa issuance.

The regulation doesn’t affect countries that participate in the visa waiver program, whose citizens or nationals visiting the U.S. for fewer than 90 days are exempted from the need for U.S. visitor’s visas.  The 39 participating visa waiver countries are largely European, and also include Australia, Brunei, Chile, New Zealand, South Korea and Taiwan.

Instead, the pilot program applies to Afghanistan, Angola, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Chad, Democratic Republic of the Congo, Djibouti, Eritrea, the Gambia, Guinea-Bissau, Iran, Laos, Liberia, Libya, Mauritania, Papua New Guinea, Sao Tome and Principe, Sudan, Syria, and Yemen, which the rule notes have high rates of their citizens or nationals overstaying their visas when they come to the U.S.

The majority of these countries have long suffered from civil or political conflicts, and the rate of overstays may reflect those fleeing persecution staying in the U.S. to apply for asylum.

The rule declares that the pilot isn’t designed to assess whether charging high bonds to visitor visa applicants will reduce the rate of overstays, but instead, is intended as a foreign policy tool to pressure  governments to reduce the rate of overstays by their citizens.   That language is clearly intended to scuttle future lawsuits challenging the rule, since federal courts generally defer to the executive branch on matters of foreign policy.

However, the bonds of course could reduce the rate of overstays by preventing citizens of the named countries from being able to get a visa to come to the U.S. in the first place, which may well be the unstated intention of the rule.

As a practical matter, because many U.S. consulates remain closed or at reduced visa processing capacity due to the pandemic, the pilot program may expire without having significant impact beyond sending a message of disparate treatment to citizens of the named countries, who may have legitimate business or other reasons to request a visa to travel to the U.S.

Because the rule is temporary, there is no public comment period.

 

Court Orders State Department to Process Visa Applications Fairly

A June 22, 2020 Presidential Proclamation banned the entry of most foreign temporary workers and J-1 exchange visitors to the U.S., ranging from professional level to manual labor workers.

In response, the National Manufacturers Association (NAM), the U.S. Chamber of Commerce, and other businesses and trade associations sued the administration.   On October 1, 2020, ruling in the plaintiffs’ favor, a federal court blocked application of the entry ban to employees of the plaintiffs’ businesses or of any of the plaintiff associations member businesses.

The Court has now ordered the State Department to “treat visa applicants covered by the injunction no less favorably than any other visa applicant.”  It also ordered the State Department to maintain a list of businesses who are members of the trade association plaintiffs and to not “require further verification as to those entities.”

The necessity of the further court order indicates that at least some U.S. consulates were failing to comply with the original court order.

On November 20, 2020, the State Department issued a cable to all Consulates detailing how they should comply with the order.  It summarized that “Applicants are now considered covered by the NAM Court’s order so long as the petitioner or sponsoring entity is a member of one of the named plaintiff associations at the time of adjudication. Further, the Court ordered that the Department “treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant.” The Department understands this to relate to appointment scheduling and adjudication at posts where regional COVID proclamations are in effect, and posts should extend the national interest exceptions under PP 10052 to applicants covered by the injunction.”

The Biden Administration is expected to  revoke this Presidential Proclamation shortly after taking office so that normal visa processing will resume at all U.S. Consulates that have reopened following COVID-19 closures.  Hopefully court orders will then no longer be necessary for foreign workers already approved by U.S. Citizenship and Immigration Services to be issued the visas they need to be able to travel to the U.S. to perform their work.

 

International Higher Education Student Enrollment in U.S. Plummets

The Institute of International Education (IIE) released its 2020 Enrollment Survey of preliminary data on international student enrollments in the U.S. in the fall of 2020.  The snapshot reveals that overall enrollment fell by 16%, with new student enrollment plummeting by 43%.

Due to a combination of some colleges and universities switching to remote-only learning, and U.S. consulates being closed for visa processing due to COVID-19, in-person enrollment of new students is down by 72%.  Ninety percent of higher education institutions in the U.S. reported that a total of over 40,000 international students deferred their admission by at least a semester.

While the pandemic has played a role in the decreased enrollment, in a statement quoted in the Wall Street Journal, Ted Mitchell, President of the American Council on Education noted

Well before the pandemic struck, a climate of harsh rhetoric on immigration and concrete actions taken by the Trump administration, such as the travel ban and slower visa processing times, helped fuel the perception that this country is no longer a welcoming place for study and research for outstanding students and scholars from across the globe.

Indeed, as IIE’s annual enrollment reports have indicated, international student enrollment at U.S. higher education institutions has fallen every year since 2016, when hostile rhetoric towards immigrants featured prominently in the run-up to the presidential election.

Declining enrollment obviously impacts the revenue streams of colleges and universities, and the communities where they are located and where international students live and spend.

But international students also make up the majority of graduate students in STEM fields in the U.S., and have the ability to contribute enormously to the nation’s innovation economy.   Indeed, the founder of Moderna, which is reportedly on the cusp of producing an effective vaccine against COVID-19, got his Ph.D. in the U.S., as did the founders or co-founders of companies that employ thousands in the U.S., such as Bloom Energy, Cloudera, SpaceX, Stripe, and WeWork, to name just a few.

It is too early to know whether a new administration will lead to a reversal in the decline in international student enrollment in the U.S., but for the strength of our educational institutions, our communities, and our economy, we should hope so.

 

H-2B Visa Cap Count Reached for First Half of FY 2021

U.S. Citizenship and Immigration Services has announced that on November 16, 2020, the 33,000 cap on H-2B non-agricultural seasonal worker positions with start dates the first half of FY 2021 (October 1, 2020-March 31, 2021) was reached.

USCIS will not accept any more H-2B cap-subject petitions for temporary jobs beginning before April 1, 2020.

Complicating matters for employers seeking to bring H-2B workers from abroad is a June 2020 Presidential Proclamation  prohibiting the entry of H-2B workers unless they will be filling jobs in the food supply chain that remains in effect through December 31, 2020, and which may well be extended by the administration beyond that date.

Workers already in the U.S. on H-2B petitions are not subject to the entry bar created by the Presidential Proclamation, and may also be exempt from the cap.

Maine employers who need temporary foreign workers to meet their labor needs can get more information about the cap and which workers are exempt from the H-2B visa cap here.

 

 

Immigration and Entrepreneurship in the U.S.

A recent economic report, Immigration and Entrepreneurship in the United States,  finds that overall,

immigrants appear to “create jobs” (expand labor demand) more than they “take jobs” (expand labor supply) in the U.S. economy.

The report found that regardless of size of companies,

at each firm size, the frequency of immigrant-founded firms per immigrant in the population tends to be larger than the frequency of native-founded firms per native-born person in the population.

The report notes that immigrants are “disproportionately likely to hold STEM degrees” and that

firms with an immigrant founder are 35% more likely to have a patent than firms with no immigrant founders.

You can read the full report here.

 

Lawsuits Opposing Administration’s Ban on Immigrants’ Entry to U.S. Mount

In April, 2020, purportedly to prevent competition for U.S. jobs, President Trump banned the entry of most immigrants, whether immigrating as professional or exceptional ability workers, immediate family members of U.S. citizens and permanent residents, or those approved for immigration after selection for diversity visas.   In June, 2020, a second proclamation banned the entry of most temporary foreign workers, and extended the immigrant entry ban through December 31, 2020.

Multiple lawsuits have been filed challenging the foreign worker entry ban and the ban on entry of family immigrants. Now, more than 245 individuals who were slated to immigrate imminently, or their petitioning sponsors, have filed a class action lawsuit challenging the ban.

The ban is keeping immigrants already been determined by U.S. Citizenship and Immigration Services as eligible to immigrate from having their immigrant visa applications processed by the State Department.   The ban is dividing families, keeping talented individuals from joining their U.S. employers, and jeopardizing visa lottery winners’ ability to receive their immigrant visas before the fiscal year ends.  A press release describing the lawsuit can be found  here.

While the entry bans are set to expire on December 31, 2020, the Trump administration is expected to extend them.   The Biden administration is likely to reverse the bans, but challenging whether the executive branch can do an end run around Congress and thwart immigration statutes to prevent competition is a legal question reaching beyond any single administration that deserves an answer.

 

Growth in Foreign-Born Population in U.S. in Last Decade Lowest since 1970’s

A Brookings analysis finds that from 2010 to 2020, the foreign born population in the U.S. grew at the lowest rate since the 1970’s.    From 2017-2019 the foreign born population grew by only 200,000 annually, compared to 400,000 to 1 million annually prior to the Trump administration, and remained flat as a percentage of the total U.S. population during those years.

The analysis notes that “it is clear that the Trump administration’s anti-immigrant rhetoric and actions to reduce admission of refugees have contributed to fewer inflows and greater outflows of foreign-born residents who are not naturalized citizens.”

The introduction to the analysis states

“(E)ven before COVID-19 hit, foreign-born gains plummeted between the first and third years of the Trump presidency, contributing to a growth slowdown for the entire decade. But at the same time, the data reveals that foreign-born population changes during the 2010s have countered the Trump administration’s immigration stereotype, drawing immigrants more broadly from Asia rather than Latin America, as well as favoring those with college, professional, and graduate educations.

The decade has also shown a dispersion of foreign-born persons to less urbanized states in the “middle” of the country, especially those that Trump carried in the 2016 presidential election.  All of this makes clear that foreign-born population changes in the 2010s differ sharply from those during the nation’s higher-immigration years.  This, along with increased immigration restrictions instituted by the administration since the onset of COVID-19, could likely lead to a very different immigration scenario for the 2020s with diminished overall population growth.

President-elect Biden is expected to begin immediately to roll back many of the executive and administrative actions and regulations of the Trump administration that have resulted in the decline in immigration to the U.S..  This would be a welcome change, swinging the pendulum back both to reflect the values of an immigrant nation and also to meet the country’s need for robust population growth for a strong economy.

You can find the full Brookings analysis here.

 

What May Change in Immigration Policy under a New President

This Forbes commentary notes that changes made by the Trump administration to the U.S. immigration system have reduced immigration to the U.S. by nearly half since 2017.  This is the intended result of measures drastically lowering the number of skills-based and immediate family immigrants getting permanent residency, as well as dramatically curtailing acceptance of refugees and asylum seekers, and resulting in fewer international higher education students and nonimmigrant foreign workers.   The Trump administration’s restrictive overhaul of the U.S. immigration system was accomplished through executive actions and procedural and regulatory changes, completely bypassing Congress, the body charged with crafting U.S. immigration laws.

The Forbes article includes recommendations that the incoming administration could make to improve the nation’s immigration laws, which badly needed reform prior to the Trump administration, and urgently needs a complete rebalancing now.

Many of the suggestions appear to be ones that a Biden administration hopes to achieve.   Pasted below are proposed changes that President-elect Biden has posted on the Biden-Harris website to restore a values and economic based approach to the U.S. immigration system.

“Joe Biden will work with Congress to pass legislation that:

  • Creates a roadmap to citizenship for the nearly 11 million people who have been living in and strengthening our country for years. These are our mothers, fathers, brothers, and sisters. They are our neighbors, co-workers, and members of our congregations and Little League teams. They contribute in countless ways to our communities, workforce, and economy. In 2015, the IRS collected $23.6 billion from 4.4 million workers without Social Security numbers–many of whom were undocumented. Biden will aggressively advocate for legislation that creates a clear roadmap to legal status and citizenship for unauthorized immigrants who register, are up-to-date on their taxes, and have passed a background check.
  • Reforms the visa program for temporary workers in select industries. A collection of industries depend on seasonal workers, or workers who only seek to be in the U.S. for a short time. The current system for accommodating these workers is cumbersome, bureaucratic, and inflexible—driving up incentives to circumvent the system by hiring undocumented laborers and allowing the employers who control the visa to pay artificially low wages. Biden will work with Congress to reform the current system of temporary work visas to allow workers in these select industries to switch jobs, while certifying the labor market’s need for foreign workers. Employers should be able to supply data showing a lack of labor availability and the harm that would result if temporary workers were unavailable. This flexibility, coupled with strong safeguards that require employers to pay a fair calculation of the prevailing wage and ensure the right of all workers to join a union and exercise their labor rights, will help meet the needs of domestic employers, sustain higher wages for American workers and foreign workers alike, incentivize workers and employers to operate within legal channels, prevent exploitation of temporary workers, and boost local economies.
  • Reforms the temporary visa system. High skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations. An immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness. Biden will work with Congress to first reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market and not used to undermine wages. Then, Biden will support expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which create unacceptably long backlogs.
  • Provides a path to legalization for agricultural workers who have worked for years on U.S. farms and continue to work in agriculture. Securing adequate, seasonal help in the agricultural sector can be inefficient and difficult to navigate, causing people to avoid or exploit the system, even when jobs remain unfilled. Biden supports compromise legislation between farmworkers and the agricultural sector that will provide legal status based on prior agricultural work history, and a faster-track to a green card and ultimately citizenship. Biden also will ensure labor and safety rules, including overtime, humane living conditions, and protection from pesticide and heat exposure, are enforced with respect to these particularly vulnerable working people.
  • Rejects the false choice between employment-based and family-based immigration. Each day, in every state in the country, millions of immigrants granted a visa based on family ties make valuable contributions to our country and economy. Keeping families together and allowing eligible immigrants to join their American relatives on U.S. soil is critically important, but the current system is poorly designed with per-country caps that prevent applications from being approved in a timely fashion. That means approved applicants may wait decades to be reunited with their families. As president, Biden will support family-based immigration by preserving family unification as a foundation of our immigration system; by allowing any approved applicant to receive a temporary non-immigrant visa until the permanent visa is processed; and by supporting legislation that treats the spouse and children of green card holders as the immediate relatives they are, exempting them from caps, and allowing parents to bring their minor children with them at the time they immigrate.
  • Preserves preferences for diversity in the current system. Trump has set his sights on abolishing the Diversity Visa lottery. This is a program that brings up to 50,000 immigrants from underrepresented countries to the U.S. each year. He has disparaged the system as a “horror show” and repeatedly misrepresents how the lottery is administered, while demonizing and insulting with racist overtones those who receive the visas. Diversity preferences are essential to preserving a robust and vibrant immigration system. As president, Biden will reaffirm our core values and preserve the critical role of diversity preferences to ensure immigrants everywhere have the chance to legally become U.S. citizens.
  • Increases the number of visas offered for permanent, work-based immigration based on macroeconomic conditions. Currently, the number of employment-based visas is capped at 140,000 each year, without the ability to be responsive to the state of the labor market or demands from domestic employers. As president, Biden will work with Congress to increase the number of visas awarded for permanent, employment-based immigration—and promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment. He will also exempt from any cap recent graduates of PhD programs in STEM fields in the U.S. who are poised to make some of the most important contributions to the world economy. Biden believes that foreign graduates of a U.S. doctoral program should be given a green card with their degree and that losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness.
  • Creates a new visa category to allow cities and counties to petition for higher levels of immigrants to support their growth. The disparity in economic growth between U.S. cities, and between rural communities and urban areas, is one of the great imbalances of today’s economy. Some cities and many rural communities struggle with shrinking populations, an erosion of economic opportunity, and local businesses that face unique challenges. Others simply struggle to attract a productive workforce and innovative entrepreneurs. As president, Biden will support a program to allow any county or municipal executive of a large or midsize county or city to petition for additional immigrant visas to support the region’s economic development strategy, provided employers in those regions certify there are available jobs, and that there are no workers to fill them. Holders of these visas would be required to work and reside in the city or county that petitioned for them, and would be subject to the same certification protections as other employment-based immigrants.
  • Enforces the rules to protect American and foreign workers alike. The U.S. immigration system must guard against economy-wide wage cuts due to exploitation of foreign workers by unscrupulous employers who undercut the system by hiring immigrant workers below the market rate or go outside the immigration system to find workers. Biden will work with Congress to ensure that employers are not taking advantage of immigrant workers and that U.S. citizen workers are not being undercut by employers who don’t play by the rules. Biden will also work to ensure employers have the right tools to certify their workers’ employment status and will restore the focus on abusive employers instead of on the vulnerable workers they are exploiting.
  • Expands protections for undocumented immigrants who report labor violations. When undocumented immigrants are victims of serious crimes and help in the investigation of those crimes, they become eligible for U Visas. The Obama-Biden Administration expanded the U Visa program to certain workplace crimes. As president, Biden will further extend these protections to victims of any workplace violations of federal, state, or local labor law by securing passage of the POWER Act. And, a Biden Administration will ensure that workers on temporary visas are protected so that they are able to exercise the labor rights to which they are entitled.
  • Increases visas for domestic violence survivors. Under the Trump Administration, there are unacceptable processing delays for adjudicating applications for VAWA self-petitions, U-visas, and T-visas. As president, Biden will end these delays and give victims the security and certainty they need. And, Biden will triple the current cap of 10,000 on U-visas; this cap is insufficient to meet the dire needs of victims and hinders our public safety.

Welcome Immigrants in our Communities

Immigrants bring tremendous economic, cultural, and social value to their new communities. Even in cities hit hard by the loss of manufacturing jobs, immigrants are a key driver of entrepreneurship and population growth.

According to a 2017 report by the New American Economy, from 2000 to 2015, immigrants accounted for 49.7% of all population growth in the Great Lakes region — over 1.5 million people — which helped offset the impacts of population decline in cities like Syracuse and Akron. Immigrants are bringing new life to local economies–starting businesses, paying taxes, and spending their dollars back into their new communities. The Center for American Progress has estimated that DACA recipients will contribute about $460.3 billion to the national GDP over the next decade. The U.S. needs to retain the talents and drive of American-raised Dreamers to secure those benefits for our own economic health.

It’s time for the federal government to listen and learn from local municipalities across the country that have built vibrant and inclusive communities and economies by developing concrete policy and program recommendations at the grassroots level to provide opportunities for new immigrants.

As president, Biden will:

  • Marshal federal resources, through the reestablishment of the Task Force for New Americans, to support community efforts to welcome immigrants. Concrete efforts will most often happen within individual communities, but federal agencies have tremendous information and resources to support community-led efforts. By adopting initiatives promoted by organizations like Welcoming America, a Biden Administration will improve access to federal agencies and better support local initiatives, such as:
    • Establishing Offices of Immigrant Affairs in city halls, or at the county and state levels, so there are local government officials focused on making policies inclusive;
    • Creating neighborhood resource centers or welcome centers to help all residents find jobs; access services and English-language learning opportunities; and navigate the school system, health care system, and other important facets of daily life;
    • Supporting entrepreneur incubators targeted toward immigrants and providing resources to help access business loans, mentoring, and capital;
    • Promoting statewide seals of biliteracy to recognize people who graduate from high school speaking multiple languages;
    • Driving campaigns to help lawful permanent residents naturalize;
    • Facilitating statewide efforts to lower the barriers to relicense professional degrees and certifications from other countries;
    • Increasing immigrant representation on community boards;
    • Ensuring that all public schools have sufficient English-language learning support to help all children reach their potential; and
    • Investing in programs to connect immigrant professionals to others in their field or to create cultural events and other programming to build social capital in immigrant communities.
  • Push to repeal extreme, anti-immigrant state laws that have a chilling effect on the ability of immigrant domestic violence, sexual assault survivors, and other victims of crimes to seek safety and justice. Some state laws drive victims and witnesses into the shadows and threaten public safety. As documented in a recent national survey, immigrant victims of domestic violence, sexual assault, and trafficking are increasingly afraid to contact police, pursue civil or criminal cases, or go to court to seek safety. This traps victims who either ask for help and risk deportation, retaliation by an abuser, and separation from one’s children, or stay with a violent partner and risk one’s life. As president, Biden will work in partnership with cities, states, nonprofits, and law enforcement to build trust and push for states to repeal the laws that chill the reporting of domestic violence incidents and threaten public safety.
  • Expand long overdue rights to farmworkers and domestic workers. When Congress extended labor rights and protections to workers, farmworkers and domestic workers – who are disproportionately immigrants and people of color – were left out. Still today, millions of these workers are not fully protected under federal labor law. As president, Biden will support legislation, including the Fairness for Farmworkers Act and Domestic Workers’ Bill of Rights, that expands federal protections to agricultural and domestic workers, ensuring that they too have the right to basic workplace protections and to organize and collectively bargain. And, through the Domestic Workers’ Bill of Rights, Biden will ensure domestic workers have a voice in the workplace through a wage and standards board.

Reassert America’s Commitment to Asylum-Seekers and Refugees 

The Trump Administration’s policies have created a humanitarian disaster at our border and grossly mismanaged the unprecedented resources Congress has allocated for it. Trump has diverted money to terrorize immigrant families, even as CBP facilities at the border are overwhelmed. After almost three years, this Administration still doesn’t have a coherent plan for the protection and processing of children and families. CBP officers in the field, who are neither trained nor equipped for this work, are shouldering outsized responsibility for managing this crisis. And through his Migrant Protection Protocol policies, Trump has effectively closed our country to asylum seekers, forcing them instead to choose between waiting in dangerous situations, vulnerable to exploitation by cartels and other bad actors, or taking a risk to try crossing between the ports of entry. In other words, Trump’s policies are actually encouraging people to cross irregularly, rather than applying in a legal, safe, and orderly manner at the ports.

As president, Biden will:

  • Surge asylum officers to efficiently review the cases of recent border crossers and keep cases with positive credible-fear findings with the Asylum Division. This change, recommended by the non-partisan Migration Policy Institute, will eliminate duplication of resources and fact-finding while reviewing the merit of asylum cases and alleviate the burden on the overwhelmed immigration courts. Not everyone leaving Central America is an asylum applicant, but many are, and each case should be reviewed fairly and in full accordance with the law. Migrants who qualify for an asylum claim will be admitted to the country through an orderly process and connected with resources that will help them care for themselves. Migrants who do not qualify will have the opportunity to make their claim before an immigration judge, but if they are unable to satisfy the court, the government will help facilitate their successful reintegration into their home countries.
  • Restore asylum eligibility for domestic violence survivors. Under the Biden Administration, the U.S. Department of Justice will reinstate explicit asylum protections — rescinded by the Trump Administration —for domestic violence and sexual violence survivors whose home governments cannot or will not protect them.
  • Apply U.S. asylum laws to those fleeing political persecution. Victims of persecution based on political beliefs have also suffered under Trump’s curtailment of asylum processes and his failure to properly apply U.S. asylum laws.
  • Double the number of immigration judges, court staff, and interpreters. There is a backlog of more than one million immigration cases in the administrative system resulting in applicants often waiting years before their cases are heard. This increase in vital immigration court staffing will support timely and fair adjudications for asylum and other cases.
  • End for-profit detention centers. No business should profit from the suffering of desperate people fleeing violence. Biden will ensure that facilities that temporarily house migrants seeking asylum are held to the highest standards of care and prioritize the safety and dignity of families above all. 
  • Increase the number of refugees we welcome into the country. With more than 70 million displaced people in the world today, this is a moment that demands American leadership. Offering hope and safe haven to refugees is part of who we are as a country. As a senator, Joe Biden co-sponsored the legislation creating our refugee program, which Trump has steadily decimated. His Administration has reduced the refugee resettlement ceiling to its lowest levels in decades and slammed the door on thousands of individuals suffering persecution, many of whom face threats of violence or even death in their home countries. We cannot mobilize other countries to meet their humanitarian obligations if we are not ourselves upholding our cherished democratic values and firmly rejecting Trump’s nativist rhetoric and actions. Biden embraces the core values that have made us who we are and will prioritize restoring refugee admissions in line with our historic practice under both Democratic and Republican Administrations. He will set the annual global refugee admissions cap to 125,000, and seek to raise it over time commensurate with our responsibility, our values, and the unprecedented global need.

Tackle the Root Causes of Migration

The worst place to deal with irregular migration is at our own border. Rather than working in a cooperative manner with countries in the region to manage the crisis, Trump’s erratic, enforcement-only approach is making things worse. The best way to solve this challenge is to address the underlying violence, instability, and lack of opportunity that is compelling people to leave their homes in the Northern Triangle countries of El Salvador, Guatemala, and Honduras in the first place. As Vice President, Biden was the architect of a major program of U.S. assistance to advance reforms in Central America and address the key factors driving migration.

As president, Biden will pursue a comprehensive strategy to strengthen the security and prosperity of Central America in partnership with the people of the region that:

  • Addresses the root causes of migration by fostering greater security, economic development, and respect for the rule of law in Central America. The Northern Triangle is riven by violence, plagued by narco-trafficking, and held in fear by criminal organizations wielding military-grade weapons, and it is particularly dangerous for women and children. Biden will propose a four-year, $4 billion package of assistance for the region, with aid linked to governments in the region delivering measurable reductions in gang and gender-based violence, improvements in legal and educational systems, and implementation of anti-corruption measures, among other things. This support will also be supplemented by international donors and regional partners.
  • Strengthen regional humanitarian responses. The inability of the Northern Triangle countries to stem the violence and terror in the region has created a regional refugee challenge. Almost every country in the region is receiving refugees and struggling to protect and care for children and families. As a leader in the region, the U.S. has a responsibility to help our neighbors and partners process and support refugees and asylum seekers. This will also help relieve the pressure at our own border.
  • Manage migration through refugee resettlement and other legal programs. Whenever possible, we should enable asylum-seekers to make their claim without undertaking the dangerous journey to the U.S. Biden will update the Central American Minors program for certain children seeking to reunify with U.S. relatives, allowing them to apply for entry from their home countries; expand efforts to register and process refugees in the region for resettlement in the U.S. and other countries; and expand opportunities for individuals seeking temporary worker visas or another form of legal status for which they may qualify to be able to come to the U.S.

Implement Effective Border Screening

Like every nation, the U.S. has a right and a duty to secure our borders and protect our people against threats. But we know that immigrants and immigrant communities are not a threat to our security, and the government should never use xenophobia or fear tactics to scare voters for political gain. It’s irresponsible and un-American. Building a wall from sea-to-shining-sea is not a serious policy solution–it’s a waste of money, and it diverts critical resources away from the real threats. Today, illicit drugs are most likely to be smuggled through one of the legal U.S. ports of entry. They are hidden among commercial cargo in semi-trucks or in a hidden compartment of a passenger vehicle. A wall is not a serious deterrent for sophisticated criminal organizations that employ border tunnels, semi-submersible vessels, and aerial technology to overcome physical barriers at the border–or even for individuals with a reciprocating saw. We need smart, sensible policies that will actually strengthen our ability to catch these real threats by improving screening procedures at our legal ports of entry and investing in new technology. The border between Mexico and the U.S. shouldn’t be treated like a war zone; it should be a place where effective governance and cooperation between our two countries helps our communities thrive and grow together–facilitating commerce and connection, and fueling the exchange of cultures and ideas.

As president, Biden will:

  • Invest in better technology coupled with privacy protections at the border, both at and between ports of entry, including cameras, sensors, large-scale x-ray machines, and fixed towers. Biden will also invest heavily in improving the aging infrastructure at all of our ports of entry.
  • Improve cross-agency collaboration. Multiple federal agencies collect information on transnational criminal organizations that smuggle people, arms, and illegal narcotics. To more effectively combat the trafficking of illicit goods at the ports of entry, consistent with our commitment to privacy, we must improve our coordination across and between government agencies.
  • Work with Mexico and Canada as partners — not as adversaries. Better cooperation with our neighbors translates to greater security for all our countries. Instead of bullying our friends, Biden will build partnerships grounded in respect to pursue our shared interests and enhance our shared capabilities and information.

New H-2A Rule on Wages for Foreign Agricultural Workers Finalized

UPDATE:  On November 30, 2020, the United Farmer Workers filed a lawsuit in federal court challenging the new rule, arguing that it will adversely affect wages for farm workers, as explained here.


On November 5, 2020, the Department of Labor released a final rule affecting the Adverse Effect Wage Rate  (AEWR) used to determine the rate of pay that employers seeking visas for H-2A temporary agricultural workers.   The new rule will take effect on December 21, 2020.

The AEWR is a wage below which employers may not pay agricultural workers. The rule freezes the AEWR at the 2020 rate through calendar year 2022, after which the AEWR will be adjusted annually at the Bureau of Labor Standards’ Cost Index rate.   The Department of Labor has issued a FAQs on the implementation of the new rule, which can be found here.

The new rule effectively allows the pay of H-2A agricultural workers, who are essential to the U.S. food supply chain, to be frozen for the next two years, even while working during the pandemic.

This analysis looks in more detail at the rule and its potential impact.   For an overview of the functioning of the H-2A program , see this Cato Institute policy brief.

 

Federal Court Finds “Public Charge” Rule Illegal; Appeals Court Stays the Order

UPDATE:  On November 4, 2020, the 7th Circuit Court of Appeals stayed the district court’s order, discussed below, so that the “public charge” rule remains in effect nationwide while the administration appeals from the lower court’s decision setting aside the rule as illegal.


On November 2, 2020, a federal district court vacated the administration’s revision of the “public charge” rule, finding that it was arbitrary and capricious, and violated the Administrative Procedures Act.

The decision  applies nationwide.  The court denied a request to stay its ruling while the government appeals.   As a result, effective immediately, U.S. Citizenship and Immigration Services (USCIS) cannot apply the rule to immigrants filing for residency in the U.S. as immediate family members of U.S. citizens and permanent residents.   This means that USCIS can’t impose the new standards that penalize people who are under 18 or over 61, or who don’t have English proficiency, and cannot require the I-944 form that requires extensive documentation including credit reports or proof that a person has no credit history, and original copies of education credentials.

The  vacated public charge rule was a back door way for the administration to slash immediate family immigration to the U.S. while bypassing Congress, as noted in this previous post.

Two-thirds of immigrants to the U.S. and to Maine each year are immediate family immigrants.  This ruling, if it holds, will help families stay together and keep our communities and economy strong.

Canada to Increase Immigration Goals in 2021-2023

Canada has announced that it will increase its immigration target numbers from 350,000 per year, to over 400,000 annually from 2021 to 2023.  With these numbers, new immigrants will represent an aggressive 1.2% increase in Canada’s population each year.

The increase in part makes up for COVID-19 disruptions in meeting Canada’s immigration targets in 2020.   But Canada’s Immigration Minister also pointed out the critical importance of immigrants not only to Canada’s economic recovery from the pandemic, but for its future labor needs, particularly in the healthcare and tech sectors, and in skilled trades..

It paints a vision for the future where we see immigration as one of the keys to our economic recovery and our long-term prosperity.

For more about how Canada views the importance of  immigration to its communities and economy, read this op-ed by Canada’s Immigration Minister Marco Mendicino.