National Business Leaders Urge Congress to Reach Deal for DACA Youth

On February 11, 2019, the Coalition for the American Dream sent a letter to House and Senate majority and minority leadership renewing the call for Congress to pass legislation immediately, providing a path to permanent status in the U.S. for those holding temporary status under the Deferred Action for Childhood Arrivals (DACA) program, the so-called Dreamers.

The Coalition, including over 100 CEOs of companies such as Coca-Cola, General Motors, IBM, Marriott, Verizon, Walmart, Amazon, Apple, Facebook, Google, and associations such as the U.S. Chamber of Commerce, the American Hotel & Lodging Association, the National Retail Federation,  and the National Association of Manufacturers reminded leadership of the economic costs of inaction, including over $90 billion in lost federal tax revenue, and a $360 billion reduction in GDP.   The letter also pointed out  the overwhelming public support for offering permanent status to Dreamers.

DACA is on the table as a group of legislators works to craft a bipartisan bill before February 15th that will fund the government and include immigration and border reforms.   Let’s hope this letter, and the accompanying full page ad in the New York Times, will help Congressional leaders keep in mind that providing a path to residency for those with DACA and TPS is both the humane, and also the economically smart thing to do.

Fact-checking the President’s Immigration Statements in the SOTU Speech

As expected, immigration featured prominently in President Trump’s State of the Union speech to Congress on February 5, 2019. The President continued his push for border wall funding, using his now familiar appeal to fear.

Statement:  “I have ordered another 3,750 troops to our southern border to prepare for the tremendous onslaught.”

Facts:  The 396,579 apprehensions at and between southern border posts in FY 2018, while an increase over the prior year, were fewer than the number in FY 2016, and less than a quarter of the more than 1.6 million apprehensions in FY 2000.   Since the recession hit in 2007, apprehensions at the southern border have fallen dramatically, and remain at low levels not seen since the mid-1970s.  Far more people coming legally through ports of entry overstay their visas each year than cross without authorization at the southern border.  And many of those arriving at the southern border are seeking out, not evading, border officials, to request asylum after fleeing violence in El Salvador, Guatemala and Honduras.

Statement:  “I want people to come into our country, in the largest numbers ever, but they have to come in legally.”

Facts:  From the Travel Ban, to slow-downs in processing employment-based and immediate family visa petitions, to drastically reducing the number of arriving refugees, to denying asylum seekers their legal right under U.S. and international laws to request asylum when they approach border agents at or between ports of entry, to refusing to support bipartisan legislation that would have given immigrant youth under the Deferred Action for Childhood Arrivals (DACA) a path to permanent residency unless Congress agreed to slash immediate family immigration by hundreds of thousands a year, President Trump has attacked legal immigration from his very first week in office.

Statement: “Tens of thousands of innocent Americans are killed by lethal drugs that cross our border and flood into our cities.”

Facts:  While it’s true that drugs flow over our southern border, the vast majority of them come through our ports of entry, so additional border wall will have little impact on drug smuggling.

Statement: President Trump highlighted the number ICE arrests of noncitizens who had been charged with or convicted of crimes.

Facts:  President Trump ignored the numerous studies showing that noncitizens commit crimes at rates lower than the U.S. population.  Also, ICE data for FY 2018 shows that the President mischaracterized and greatly inflated his crime numbers.   Twenty-five percent were for routine traffic offenses (not including OUI) and immigration law violations, and 28% were for nonviolent crimes.  And when the President cited numbers of specific types of offenses, he  doubled or more than doubled the actual number of those charged or convicted for the specific crimes. 

Statement:   The President said that construction of a border wall near San Diego “almost completely ended illegal crossings.”

Facts:  The Congressional Research Service found that it was the addition of technology and more personnel on the border that led to reduced unauthorized border crossings. The wall by itself “did not have a discernable impact.”

Statement:   President Trump said that El Paso used to have one of the highest violent crime rates prior to construction of the border wall, but after its construction, became one of the nation’s safest cities.

Facts: El Paso’s crime rates fell to record lows in 2006, before the wall was constructed, rose again after its construction in 2008, and have since fallen again. Officials in El Paso say the rate of crime there is unrelated to the wall.

In his speech, President Trump relied on the same falsehoods he has used for months to try to scare the public into support for a wall that will be far less effective than meaningful immigration law reform. Fortunately, the U.S. public is not so easily swayed. Recent polls show that opposition to the border wall has grown since last summer, with a majority of the U.S. public opposed.

New Polls Show Strong Support for Immigration; Majority Oppose Border Wall

UPDATE:  A Gallup poll released on February 4, 2019 found that 60% of respondents oppose significantly expanding the U.S.’s  southern border wall, and 81% support providing a path to citizenship for those here without legal status.   A majority (67%) believe that present immigration levels should be increased or stay the same.  Only 31% felt immigration levels should decrease.

The Gallup results are in line with the  recent Quinnipiac poll noted below.

A January 29, 2019 Quinnipiac poll found that 75% of respondents felt that immigration is good for the U.S., with only 14% disagreeing.   Sixty percent of  Republicans, 79% of Independents, and 90% of Democrats agreed that immigration benefits the country.

The poll also asked about support for building a wall on the U.S. – Mexico border,  and found that 55% oppose the wall.  The answers revealed  sharp partisan divisions, with most Republicans supporting the wall, and most Democrats and Independents opposing it.

Over sixty percent of poll respondents supported more border security measures, not including the border wall, and 66% opposed the idea of the President invoking emergency powers to construct the wall, with 66% of Republicans joining Democrats and Independents on the latter question.

In addition, a strong bipartisan majority opposed shutting down the government over the border wall issue, with 68% of respondents overall opposed, including 61% of Republicans.

The Quinnipiac poll results echo other recent nationwide polls by multiple pollsters, compiled here.



Final H-1B Rule Changes Filing Process

On January 31, 2019, the Department of Homeland Security published a final rule  changing the application method for H-1B temporary professional or specialized knowledge visas, and how U.S. Citizenship and Immigration Services (USCIS) will process them.

H-1B employment visas are available in an extremely limited supply.  Only 65,000 cap-subject petitions are available to those with at least a Bachelors degree, with another 20,000 available to those holding a Masters degree or higher.

To handle the excess demand, employers were not allowed to file petitions prior to April 1st for positions starting on or after October 1st, the start of the next fiscal year.  Typically the cap has been reached within five days, with a lottery conducted to select which petitions will be considered.  Those not selected were rejected and returned to the employers.

The final rule’s new process will require employers to register with USCIS in advance of April 1st for each position for which they intend to seek an H-1B visa.   USCIS would then essentially conduct the lottery from the registrations received.  Only those employers whose registrations are selected will be invited to submit the full H-1B petition, within 90 days of receiving notification of their selection.  In theory, this will save employers the time and expense of fully preparing an H-1B visa petition that later gets shut out in the lottery.

Because this new registration system will need testing, USCIS will suspend its implementation and make it effective for FY 2021 H-1B petitions.  Employers planning to seek H-1B visas for FY 2020 will file complete petitions with USCIS as of April 1, 2019, as usual.

The new rule will also change how USCIS processes H-1B petitions, counting all applicants towards the 65,000 cap before beginning to count petitions towards the 20,000 cap for those with Masters and higher.  USCIS estimates  this will increase the number of Masters or higher degree holders who receive H-1B visas by 16%.

This latter change, effective on April 1, 2019, will apply to FY 2020 petitions.  It could make it harder for employers in fields where professional positions frequently require only a Bachelors degree to succeed in obtaining an H-1B visa for their intended employee.

Employers seeking more details should speak with their immigration counsel.

Cato: Restricting Access to Asylum and More Walls Likely to Lead to Increased Border Deaths

The Cato Institute has issued a new analysis of government data indicating that as more miles of wall were constructed along the U.S.-Mexico, there was an increase in deaths of those trying to seek safety or opportunity in the U.S.

The report notes that in recent years, deaths have declined as the population trying to enter the U.S. has increasingly been individuals fleeing violence in the Northern Triangle countries of El Salvador, Guatemala, and Honduras.  They have tended to seek out, rather than evade, Border Patrol officials to ask for asylum.

(T)he evidence indicates that border fences have made the journey far more dangerous—even deadly—and that asylum made the border safer.

In fact, asylum and other humanitarian relief programs appear to have already saved about 1,300 lives along the border since 2013. By contrast, increased enforcement—including the fence—appears to have resulted in about 4,600 more deaths from 1999 to 2019.

Given that the number of southern border apprehensions in recent years are far lower than they were for decades, and that the majority of the undocumented in the U.S. today entered the U.S. legally through airports and other ports of entry with temporary visas but failed to leave, the case for the border wall is thin.

Crafting meaningful immigration reforms that respect of our country’s tradition and legal obligation to offer protection to those seeking safety,  that meet the needs of employers and families, and that reduce processing backlogs which can stretch for years, would be far more effective than continued fighting over the wall.

Supreme Court Will Not Intervene Prematurely in DACA Litigation

On January 22, 2019, the U.S. Supreme Court declined to intervene in the ongoing litigation over the administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program.     This means that DACA holders will be able to keep their DACA status while lawsuits continue.

Multiple legal challenges of the administration’s decision to recind DACA were filed in four federal district courts.  In three of those cases, the courts partially blocked the government’s rescission, ordering DACA to continue during the ongoing litigation for those already holding that status.   The government appealed those decisions to the respective federal appellate courts.

In an unusual move, the administration also petitioned the Supreme Court to take up DACA, essentially asking to leapfrog over the appellate courts.   The Supreme Court’s decision allows the cases to continue running their course through the federal courts. It also means that the Supreme Court is unlikely to take up DACA before its next term in October 2019.

The Ninth Circuit Court of Appeals already issued a decision affirming one lower court’s injunction against the government.  Maine was a plaintiff in that case.  Appeals in other circuits are still pending.

Litigation is not the path to real stability for those with DACA, however.    The Senate must press President Trump for a path to permanent residency for DACA holders.  The new House of Representatives is already on board.  The ball is in the Senate and President Trump’s court.


President Trump’s Proposal Falls Short

Since taking office, President Trump has rescinded the Deferred Action for Childhood Arrivals (DACA) program and terminated Temporary Protected Status (TPS) for citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan.   Altogether, these measures would strip legal status from about 1.1 million immigrants who are in our workforce, schools and universities, and are contributing to our communities.

On Saturday, January 20, 2019, President Trump offered to end the government shutdown by exchanging a temporary, three year, restoration of legal status for DACA and TPS holders for the $5.7 billion he demands for a border wall that most in the U.S. oppose.   He also proposed creating  a system for immigrant youth from countries such as El Salvador, Guatemala, and Honduras who are afraid of gang violence to apply for U.S. protection from within their countries.  He neglected to mention that such a system already existed when he took office, and his administration ended it.

At best, this cannot be considered a serious, good faith offer.  At worst, it is cynical and cruel.  These 1.1 million people have long contributed to our nation.  For example, Hondurans have had TPS  for over twenty years.  Like them, DACA recipients are working and paying taxes, and many are pursuing college and graduate degrees.  We need all of these individuals to keep our aging communities vibrant and to shore up our shrinking labor force. They deserve an offer of a path to permanent legal status, not the uncertainty of a three year reprieve.  In addition, the economic costs to the U.S. if DACA and TPS holders cannot remain permanently are in the billions.

Moreover, President Trump said in late 2017 and early 2018 that he was willing to make a deal for permanent status for DACA holders in exchange for more border security.  When a bipartisan proposal with those elements was hammered out, President Trump moved the goalposts, refusing to sign any bill that didn’t include slashing immediate family immigration and eliminating the diversity lottery.

More than half of the current undocumented population entered the U.S. legally with visas and “overstayed”.  Constructing more border wall will do nothing to address that reality.  Congress cannot capitulate to the President’s demands .    Both sides instead need to negotiate real proposals for immigration reform.   This weekend’s offer was a non-starter.



DHS Removes Three Countries from H-2A and H-2B Seasonal Visa Eligibility

The Department of Homeland Security has determined that effective January 19, 2019, nationals of Ethiopia and the Philippines will no longer be eligible for H-2A and H-2B seasonal agricultural and non-agricultural visas, respectively.   Nationals of the Dominican Republic also will no longer be eligible for H-2B seasonal non-agricultural visas.

While this decision does not affect the status of individuals from these three countries who are currently in the U.S. on H-2A or H-2B visas, they will be unable to apply for extensions of their visas.  They also cannot change from one visa type to the prohibited visa category.

To see the 84 countries that are H-2A eligible, and the 81 countries with H-2B eligibility, read the notice here.


Bill to Legalize Farm Laborers Introduced

On January 17, 2019, Rep. Zoe Lofgren introduced H.R. 641,  An Act to improve agricultural job opportunities, benefits, and security for aliens in the United States and for other purposes.  Maine’s Representative Chellie Pingree is an original co-sponsor of the bill.

H.R. 641 would provide a path to permanent legal status for farm workers, whether they have worked here on H-2A temporary agricultural visas, or are undocumented.  Pew Research Center estimates that immigrants make up about half of all farm workers, and 26% of farm workers are undocumented.

Farmers have experienced shortages of laborers for years, causing them to lose crops and money, including in Maine.  Even with increased wages, native born U.S. citizens don’t flock to farm work.

H.R. 641 would allow existing farm workers, regardless of their immigration status, to get a “blue card”, after passing background and security checks and a rigorous application process.   The blue card would allow them to live and work legally in the United States for up to 8 years.  If they perform a prescribed amount of farm work during those years, they could gain permanent residency following another rigorous application process and further background and security checks.

This bill would benefit workers, who can come out of the shadows, and farm operations and the economy.   It remains to be seen how it will move through Congress.

Federal Court Prohibits Citizenship Question on 2020 Census

In the first decision on this issue, on January 15, 2019  the Federal District Court of the Southern District of New York ruled that a question about citizenship status cannot be added to the upcoming 2020 decennial census.  The lawsuit was brought by 18 states and the District of Columbia, 15 cities and counties, and the U.S. Conference of Mayors, along with several non-governmental organizations.

Evidence submitted by the Census Bureau itself during the trial supported the plaintiff’s arguments that asking about citizenship would likely depress the response rate and result in an undercount of the U.S. population.   While holding that there was no violation of the Constitution, in its 277 page opinion, the court found that

if the citizenship question is added to the 2020 census questionnaire, (the plaintiffs) will suffer serious harm in the form of lost political representation, lost federal funding, and degradation of information that is an important tool of state sovereignty.  And at least two of those injuries — the loss of political representation and the degradation of information — would be irreparable.

As we have noted previously, accurate census data is not only essential for governmental purposes, but also for the private sector.

The government has appealed the decision to the Supreme Court.  Since the deadline for printing the census questionnaire is June 2019, the case is being fast-tracked and will be heard by the Supreme Court on February 19, 2019.  In the meantime, three other lawsuits challenging the addition of the citizenship question to the 2020 census are underway.   Stay tuned.