A recent report based on an analysis of government data shows troubling increases in denials of H-1B visas, the leading avenue through which foreign-born professionals with specialized knowledge are able to legally work for U.S. employers who need their talent.

The report by the National Foundation for American Policy analyzed data from U.S. Citizenship and Immigration Services and found that denials of initial H-1B visa petitions quadrupled between FY 2015 and FY 2018, and in the first quarter of FY 2019 increased to 34% from 24% in FY 2018.

More concerning is the increase in denials of extensions for current H-1B visa employees.   H-1B visas are issued for terms of up to 3 years.    However, extensions are available, and are particularly critical  so that employers can retain their employees while they are on waiting lists for permanent residency that can be more than a decade long.

Normally, if there is no change in the employer or in the position held by the H-1B employee, extensions are routinely granted.  The NFAP data analysis found that  denials of H-1B visa extension applications tripled from 4% in FY 2016 to 12% in FY 2018, and in the first quarter of FY 2019, 18% of extension requests were denied.

This article in Wired provides a glimpse of the human toll of these spikes in denials on talented immigrants who have lived and worked here legally for years, buying homes, paying taxes, raising children here.

The impact on employers who will lose valuable employees, during a time of sustained low unemployment, and when there are a million more job openings than there are  job seekers is also significant.

As the report notes:

If the goal of the Trump administration is to make it much more difficult for well-educated foreign nationals to work in America in technical fields, then USCIS is accomplishing that goal. If the administration’s goals include more international students attending non-U.S. universities and making their careers someplace other than America, and for U.S. companies to transfer more work and plans for growth to Canada and elsewhere, then those goals are also being accomplished.

The increase in H-1B denials echoes a larger trend of increases in overall denials of applications for legal status and for naturalization to U.S. citizen by the current administration, as reported by the Cato Institute.

The recent changes in H-1B adjudications have occurred purely through administrative action, without input from Congress, or the notice and comment period normally required for substantive changes in interpretation of the immigration laws.  The changes are being legally challenged in the federal courts.  Stay tuned.

 

While the number of petitions and applications filed with U.S. Citizen and Immigration Services (USCIS) has declined during the Trump administration, the number of denials issued by USCIS has increased sharply.

Analyzing government data, the Cato Institute found that overall in the first quarter of FY 2019 the rate of denials was up 80% compared to the first quarter of FY 2017, the last quarter of the prior administration.  The data examined included every type of petition for nonimmigrant or immigrant status, but excluded applications for naturalization to U.S. citizenship, and renewal applications for Deferred Action for Childhood Arrivals (DACA) and for Temporary Protected Status (TPS), programs that federal courts have prevented the administration from terminating.

The Cato analysis revealed that the increase in denial rates varied by application type, but affected them all,  from petitions for immediate family members of U.S. citizens and permanent residents, to employer petitions for H-1B visa professionals or for temporary seasonal workers, to applications for asylum, and for work permission by those with legal status here.

The Cato Institute’s takeaway?  “The ultimate goal of this administration is simple: less immigration—illegal or legal.”

 

Data released by the US Department of Labor on May 7, 2019 showed 7.5 million jobs open nationwide as of March 2019, and a shortfall of a million people seeking work.  As reported here, this represents the 11th straight month that the number of job openings greatly exceeded the number of job seekers.

In Maine, the state Department of Labor’s most recent unemployment rate of 3.3% for April 2019 sets a record 40th straight month of unemployment lower than 4.0%.

Meanwhile, in 2018, birth rates in the U.S. fell to their lowest level in 32 years, according to the Center for Disease Control’s National Vital Statistics System.

A recent VOX report looks at the need for workers across all sectors, including those that don’t require a college degree.

The trend of an aging workforce and not enough replacement workers continues, and will be exacerbated if our nation continues to strip immigrants legally here of their status, such as those with DACA and TPS, and to deny applications of those who qualify to immigrate legally.

The economic indicators all point to  the conclusion that our nation needs more immigrants, not less.  Policy makers in Washington D.C. should take heed.

 

 

The Departments of Homeland Security and Labor published a joint final rule in the Federal Register on May 8, 2019, launching the process for issuance of 30,000 additional seasonal non-agricultural H-2B visas for positions set to begin by September 30, 2019.  Employers can now file to request the additional visas.

The rule clarifies that the 30,000 additional FY 2019 H-2B visas will be available “for those American businesses that attest to a level of need such that, if they do not receive all of the workers under the cap increase, they are likely to suffer irreparable harm, in other words, suffer a permanent and severe financial loss…..In addition….employers may only request these supplemental visas for specified H-2B returning workers….who were issued H-2B visas or were otherwise granted  H-2B status in FY 2016, 2017, or 2018.”

If past is prologue, demand will far exceed supply, triggering a lottery.  Last year, within 5 days after the Federal Register notice appeared, USCIS received petitions for over 29,000 H-2B visas and conducted a lottery to randomly select the petitions to process for the 15,000 additional H-2B visas.

While 30,000 additional H-2B visas for the remainder of FY2019  is an improvement over the 15,000 additional visas provided in the past few fiscal years, but as discussed here, the Department of Homeland Security could have issued up to 69,320 additional H-2B visas before the end of FY 2019 under the terms of the Congressional fix, but chose not to.

Congress needs to make a permanent fix to remove or substantially and permanently increase the H-2B visa cap so that Maine’s seasonal employers can have predictability when trying to meet their seasonal employment needs. 

For a variety of perspectives on the H-2B program in general and on the additional visas, see this article in the Wall Street Journal.

Pine Tree Watch recently published, Help Wanted:  The Immigrant Opportunity, a three part series looking at the importance of immigrants to Maine’s economy.

The series included perspectives from MeBIC’s director Beth Stickney, as well as from many of MeBIC’s Board members and partners, including Carla Dickstein of Coastal Enterprises, Inc., Dana Connors of the Maine State Chamber of Commerce, John Dorrer, former director of the Maine Department of Labor’s Center for Workforce Research and Information,  Ben Waxman of American Roots, and Brian Skoczenski of Ready Seafood, and highlights data from MeBIC partner the New American Economy, among other sources.

The bill also highlights several bills that MeBIC has helped craft or supported both in the last legislative session and in the current one.  However, Part 3 is not a full accounting of the bills we are working on.  You can find a more complete list here.

The series is a thoughtful, in-depth look at a complex issue of great importance to Maine and Maine’s economy.  It’s worth a read, through the links below.

Part 1:   Filling a Severe Gap

Part 2:   A Daunting Maze of Barriers

Part 3.   It’s Cost vs. Potential in the Debate over Making It Easier for Immigrants

As explained in this previous MeBIC post,  in August 2019, U.S. Citizenship and Immigration Services (USCIS) issued a new policy upending over 20 years of prior policy regarding when those on F or M student visas, or on  J exchange visa holders, would begin to accrue unlawful presence.

On May 3, 2019, a Federal District Court  in North Carolina issued a preliminary injunction blocking implementation of the new policy nationwide.   This is not the final ruling in the case, but prevents USCIS from applying the new policy while the case makes its way through the courts.

The August 2019 policy is extremely prejudicial to F and M student visa or J exchange visa holders, and can cost them the ability to stay in or return to the U.S., not only to their detriment but also to that of current or prospective employers, as explained here.

The litigation is ongoing.

 

 

Barely a day goes by without some new development about the southern border.  In only the last few weeks:

• The administration has requested an additional $4.5 billion in funds to help manage the border.
• An unaccompanied Guatemalan teenager died in Department of Homeland Security custody.
• The administration proposed making the U.S. an outlier regarding humanitarian protections for those fleeing persecution, by requiring asylum seekers to pay to apply for asylum, to pay for work permits, and to be ineligible for a work permit while their asylum cases are pending if they arrived at other than a port of entry.
• A federal appeals court heard oral arguments in the government’s appeal of a lower court’s decision against the administration’s “Migrant Protection Protocols”, also called the “Remain in Mexico” policy that pushes asylum seekers from Central American countries back into Mexico while they await a chance to explain why they are seeking asylum and fled their home countries. The administration reports that over 1600 asylum seekers have been pushed back into Mexico under the policy.
• The Attorney General Barr issued a decision that would require asylum seekers who arrive between ports of entry to be detained during the entire period that they are pursuing their asylum claims, eliminating their current ability to ask to be bonded out.

And this list is just the tip of the iceberg.

Here are a few items that you may have missed that might help you digest the substance and the impact of some of these developments.

• A short explanation of the Migrant Protection Protocols from Penn State Law.
• An article in Texas Monthly that puts a human face on those subjected to the Migrant Protection Protocols.
• A thoughtful opinion piece in The Hill that explains why proposals to  charge asylum seekers fees to request protection and work permission are flawed.
• A letter from the American Bar Association criticizing the Attorney General’s recent ruling.
• An op-ed by a sitting immigration judge explaining some of the challenges facing the immigration courts.
• An article in the New York Times that gives a glimpse into the problems driving some of the people from Central America to leave their homes and seek safety in the U.S.

 

 

 

A new regulation took effect on April 22, 2019 that allows consular officers to deny or refuse to accept all visa applications for citizens of countries that the U.S. wants to sanction for not timely issuing travel documents or facilitating the removal of their citizens from the U.S. .

The rule applies to foreign citizens applying for visas at U.S. consulates within their home countries,  whether for nonimmigrant (temporary) visas, such as for visitors, students, and professional level temporary workers, or for immigrant visas to confer permanent residency on immediate family members of U.S. citizens and permanent residents, or on employees of U.S. companies.

The rule allows the administration to designate countries that it deems to be delaying or otherwise being unhelpful with repatriation efforts to deny visas to their citizens on a virtually wholesale basis, in a quiet fashion without the publicity and potential public outcry that accompanied President Trump’s earlier executive “travel ban” orders.

It remains to be seen how readily this new rule will be used, but it represents another example of how, without any Congressional action, the administration is reshaping the landscape  of legal immigration to the U.S.

On April 22, 2019, the Department of Homeland Security sent a final rule for review to the Office of Management and Budget, which is the last step before publishing the rule in the Federal Register.

The rule would authorize the issuance of 30,000 more  H-2B seasonal non-agricultural visas to add to the 33,000 H2B cap for seasonal positions starting before October 1, 2019.  The text of the rule has not been made publicly available.

The 30,000 visas are the result of a provision added by Congress to the omnibus spending bill that ended the government shutdown in February.  As discussed here, the Department of Homeland Security could have issued up to 69,320 additional H-2B visas before the end of FY 2019 under the terms of the Congressional fix, but chose not to.  In addition, there could be another restriction.  Reportedly the 30,000 visas will only be available to individuals who have been issued an H-2B visa previously in any of the three most recent fiscal years.

It remains to be seen whether that restriction will appear in the final rule, and when the final rule will actually be published in the Federal Register, signalling that USCIS is authorized to begin processing the additional  30,000 visas.

In any case, while the additional H-2A visas will provide some relief to a limited number of seasonal employers, given that it is already May, and that tens of thousands more positions were applied for nationwide than even the 30,000 additional visas will accommodate, once again, the H-2B visa program is likely to fall far short of meeting Maine employers’ seasonal hiring needs.

Maine’s unemployment rate continues its long streak of staying below 4%.  The Maine Department of Labor’s recently released data for March 2019 shows Maine’s unemployment rate at 3.4% statewide, below the national rate of 3.8%.  Maine’s unemployment rate has remained below 4% since January 2016.

This is just another reminder that Maine needs people, whether from around the country, or around the world, if we are to have a strong labor supply that is essential for a robust economy.   Immigrants are an essential part of Maine’s future.

Two recent articles highlight flip sides of the importance of immigrants in the face of our nation’s aging population and low birth rates.

The New York Times published an article  reporting that U.S. population growth is at its lowest levels since 1937.  The article highlightsa study by the Economic Innovation Group finding that 80% of U.S. counties and half of U.S. states experienced declines in their working age population from 2007-2017.

The EIG  study notes that 65% of counties will continue to experience these declines over the next decade, and that the decline is uneven, with 86% of counties growing more slowly than the nation as a whole.   Forty-one percent of counties  are experiencing demographic decline similar to Japan’s.   The EIG study resulted in a proposal for a “Heartland Visa” to attract immigrant talent to areas of the country hardest hit by population declines.

 In  Immigrants Propel Population Growth in 10% of U.S. Counties the Wall Street Journal presents the other side of the coin, examining areas of the country that have experienced population growth.    The article looks at census data and notes economists’ findings that the U.S. is becoming “increasingly dependent on immigrants  to fill jobs and fund programs like Social Security and Medicare” as immigration comprised 48% U.S. population growth in FY 2018, up from 35% in FY 2011.

As the WSJ article notes:

“We have a situation where U.S. fertility rates are really low and we’re not actively adding to the workforce through natural increase,” said Aparna Mathur, a resident scholar of economic policy at the American Enterprise Institute, a conservative think tank in Washington. “We cannot afford to talk about immigrants as bad for the U.S. economy.”

Notwithstanding the data, the Administration continues to take steps to limit legal immigration, including through increased denial rates for those seeking professional working visas, and trying to terminate the legal DACA or TPS status of nearly 1.1 million people, many of whom have lived here for decades and are already part of our communities and workforce.

The administration’s direction seems misplaced when, as the New York Times article concludes, “(w)hen it comes to the economy, at least, the country looks more like one that is too empty than too full.”

 

 

 

On April 10, 2019,  U.S. Citizenship and Immigration Services announced that it had completed the process of random selection of sufficient H-1B specialized knowledge work visa petitions for professionals to exhaust the 85,000 cap.

For the seventh year in a row, the demand for visas far outstripped supply, with petitions for over 201,000 positions received within five days of the start of the filing period on April 1st, up from the more than 190,000 visas requested last year.

The current cap of  65,000 bachelors degree level and 20,000 masters degree level H-1B visas is clearly inadequate.   The over 116,000 positions that were not selected in the lottery represent talent that U.S. companies were counting on to succeed.

It is past time that Congress acted to remove or substantially raise the H-1B cap.  Until a law change in 1990, there was no cap, and the number of H-1B visas rose and fell with the market.  H-1Bs reflect the economy, and demand for them dropped in response to the 2007 recession. The market, not a cap, is the best regulator of the number of H-1B visas to be issued.

In the current economy, with employers scrambling to find the talent they need due to persistent low  unemployment is low, the H-1B cap is an anachronism that hinders economic growth.

 

 

Update:  On April 4, 2019, President Trump walked back his threat to close the border, following criticism from Republican lawmakers and economic leaders alike, regarding the economic damage a closure would cause.

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As we have written previously, the “crisis” at the U.S. southern border is real, but it is a humanitarian crisis of the administration’s own making.

Now the administration is proposing to make matters worse.

Just days after DHS Secretary Nielsen announced a new cooperation agreement with the Northern Triangle countries of El Salvador, Guatemala and Honduras, President Trump threatened to withhold all foreign aid to those countries, an action that would exacerbate the conditions in those countries causing their citizens to flee to the U.S.  Additionally, President Trump is threatening to close the border, despite the nation’s obligation under U.S. and international law to allow those seeking safety to have the opportunity to enter the U.S. to apply for asylum (and despite the likely economic damage such a move would cause, as the Cato Institute describes).

Despite all of the administration’s deterrence efforts: making asylum seekers wait for weeks to be processed at border posts; separating children from their parents; increased use of detention; increased criminal prosecutions for illegal entry; and pushing non-Mexicans back into Mexico to wait for their asylum claims to be heard unless they can prove they’d be persecuted or tortured in Mexico, asylum seekers continue to arrive at our southern border.

Apprehensions year-to-date are higher than in the past two fiscal years, but are still far lower than the 1.64 million who crossed between border posts in 2000.  Indeed, from 1983 until 2007, there were only 5 years where fewer than 1 million individuals were apprehended.  Additionally, the make up of those arriving now differs markedly from the past.   In 2000, government data shows that over 1.61 million of those encountered between border posts were from Mexico, and fewer than 29,000 were from other countries.  In contrast, in FY 2018, 152,000 of those apprehended were from Mexico, while 244,000 were from other countries.  And those who arriving in FY 2019 continue the trend of recent years of being mostly families with children or unaccompanied minors seeking safety from gang and political violence.  Of over 318,000 individuals apprehended in the first 5 months of FY 2019, only about 50,000 were not families or unaccompanied minors.

These migrants continue to come despite the dangers of the journey, and the hardship that they may face when they reach the border because they fear for their lives or safety at home and are seeking safety here.

Instead of exacerbating the humanitarian crisis, the  administration should change its focus from the border wall to boost funding for immigration judges and asylum adjudicators, in order to give those arriving at the southern border the due process they are legally and morally due.

• Market strategist and economist Abby Joseph Cohen of Goldman Sachs, discussed a December 2018 Goldman Sachs research paper on economic disparities among various U.S. states.

As summarized in a March 27, 2019 interview, Cohen said that

One of the reasons our economy has been stronger and grown faster than the economies in Europe and Japan — and I’m comparing us to the developed economies — is because we have faster population growth. And we have faster population growth in large part because of immigration….

(L)arge cities in the US, in which some 30 percent of the population is made up of immigrants, “are doing extremely well,’ with a rise in jobs and income since 2009. This same prosperity has not been seen in the smaller towns and rural areas, where the immigrant population is under 5%

Cohen noted that she views with concern the current administration’s policies, which have led to a reduction in the issuance of visas for international students and for professional specialized knowledge works, as antithetical to economic growth.

• A March 31, 2019 report, Barriers to recruiting and retaining global talent in the U.S.  by The Orrin G. Hatch Foundation and FWD.us,  highlights how U.S. immigration laws are impairing the ability of U.S. companies to recruit and retain foreign-born professionals.   This report echoes concerns from the Business Roundtable that our nation’s laws and their implementation by the  administration are reducing the ability of U.S. companies to compete for global talent.

The report notes how the H-1B visa program is out of sync with the needs of companies, and of international students and professional level talent who want to be able to work and stay in the U.S.

 

Congress should take heed of these reports and advance an agenda to modernize our immigration laws to retain our values, and our economic strength, as a country that welcomes immigrants.

 

As we’ve reported previously, in the omnibus spending bill enacted in February 2019, Congress authorized the Department of Homeland Security (DHS) to issue up to 69,320 additional H-2B seasonal non-agricultural worker visas to supplement the 33,000 H-2B visas available for positions beginning between April 1st and September 30th, 2019.

In FY 2017 and FY 2018, Congress authorized up to that same number of additional visas, but DHS only released an additional 15,000 visas instead.

For FY 2019, DHS Secretary Kirstjen Nielsen indicated on March 29, 2019 to several members of Congress that the administration  will issue 30,000 additional visas beyond the usual 33,000 summer season cap.  That falls 39,320 visas short of the number DHS could have issued under the Congressional fix, but is an improvement over the prior two fiscal years.

However, there is a catch.   According to the American Immigration Lawyer’s Association,  “the additional visas will be available only to applicants who have held H-2B status in at least one of the past three fiscal years (2016, 2017 and 2018).”  The additional visas will not be available until DHS issues a temporary final rule and has published it for public inspection.

The 33,000 usual H-2B visa cap for the second half of FY 2019  was reached on February 22, 2019.  Maine employers who depend on H-2B visas for their spring/summer seasonal worker needs should cross fingers that DHS will act quickly to make the additional visas available, and can check for updates on USCIS’s H-2B visa page.