Category: News

As has been widely reported, following the government shutdown, Congress approved appropriations for the remainder of FY 2019, with funding for border security measures, including $1.375 billion for additional border fencing.   However, Congress did not fund the $5.7 billion that President Trump wanted for the “wall”.   On February 15, 2019, the President signed the funding measure.  Separately, he declared a “national emergency” on the southern border, and that he would move money appropriated by Congress for military construction and drug interdiction efforts, to have $8 billion for wall construction.

On February 18, 2019, California filed suit against the administration, joined by fifteen states, including Maine, challenging the President’s planned executive action as unconstitutional. The lawsuit requests a permanent injunction against diverting funding and constructing additional border wall without an appropriation for that purpose by Congress.

One paragraph in the complaint accurately summarizes the lack of “national emergency” at this moment in time at the southern border, notwithstanding the President’s declaration:

The federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall. Customs and Border Protection (“CBP”) data show that unlawful entries are near 45-year lows. The State Department recognizes there is a lack of credible evidence that terrorists are using the southern border to enter the United States. Federal data confirm that immigrants are less likely to commit crimes than are native-born Americans. CBP data demonstrate that dangerous drugs are much more likely to be smuggled through, not between, official ports of entry—rendering a border wall ineffectual at preventing their entry into this country.

Maine is a plaintiff in the lawsuit, since the anticipated diversion of defense funding to border wall construction would harm Maine’s economy, as is true for the other state plaintiffs.

MeBIC has written previously about the current number of people trying to enter the U.S. at or between ports of entry being at lows consistent with the past eight years, and not seen since the 1970s, according to Customs and Border Protection’s own data.   The Department of Homeland Security concluded in a September 2017 report that “the southwest land border is more difficult to illegally cross today than ever before.”

Instead of a wall, the administration should be asking Congress to appropriate funding to add additional immigration judges to restore due process to those crossing the southern border seeking asylum, and provide a path to legal status to the more than 1,000,000 individuals who are part of our communities and our economy and are on the cusp of losing their DACA and TPS status.

On February 15, 2019 , President Trump signed Public Law 116-6, the Consolidated Appropriations Act of 2019, funding the federal government for the rest of this fiscal year.  Division H, Title I, Sec. 105 of that  spending bill allows issuance of additional H-2B non-agricultural seasonal worker visas for the 2019 summer season beyond the 33,000 cap, upon consultation between the Department of Homeland Security and the Department of Labor, and if it is determined that the needs of American businesses cannot be met with qualified, willing, and able U.S. workers.

Given that petitions for nearly 98,000 positions were received by the Department of Labor in the first five minutes of the “summer” H-2B visa filing window, there is no question that U.S. businesses need more H-2B visas than the 33,000 cap allows.

The good news is that this year’s fix was enacted early enough that if fully and quickly implemented, it should permit issuance of up to 135, 320 H-2B visas for seasonal non-agricultural jobs for FY 2019, instead of being capped at 66,000 visas.

The bad news is that Congress has authorized this same “fix” in each of the past two fiscal years’ omnibus spending bills, and while the government could have authorized issuance of over 69,000 additional H-2B visas in both FY 2017 and FY 2018, it did not.  Instead, each year the administration authorized only 15,000 more H-2B visas.  Also, in the prior two years, the government announced the additional visas far too late to be of any use to most employers with summer seasonal needs.

We can only hope that this year will not be a repeat of FY 2017 and FY 2018, so that there will actually be meaningful relief for this year’s expected summer seasonal worker shortage.  USCIS posts updates on the availability of cap-subject H-2B visas here.

Disappointingly, for the third year in a row, Congress declined to enact a permanent solution to the chronic lack of sufficient H-2B cap-subject visas.  Instead, just as happened in FY 2017 and FY 2018, they authorized additional H-2B visas only for the current fiscal year, which ends on September 30th.

Congress needs to craft a permanent law increasing the number of temporary H-2B visas available to meet the nationwide need for non-agricultural seasonal workers.  Particularly when unemployment is at record lows, businesses with seasonal needs should not have to face uncertainty about the availability of H-2B visas each year.

Update:   On February 15, 2019, the Supreme Court agreed to hear the administration’s appeal of the decision noted below that held that Census 2020 cannot include a question about citizenship status.    Arguments are expected to be heard in April, 2019.

In the first decision on this issue, on January 15, 2019  the Federal District Court for 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 will need to be fast-tracked.  In the meantime, three other lawsuits challenging the addition of the citizenship question to the 2020 census are underway.   Stay tuned.

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.

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, and of Mainers, opposed.

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.

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.

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.

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.

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.

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.

As the U.S. debates a border wall intended to keep asylum seekers and other immigrants out, this op-ed reminds us that with our aging population and low birth rates, we are a country that should be recruiting immigrants as other countries such as Canada, are doing, not turning them away.  It’s worth a read.

Canada suffers from the same demographic challenges as the U.S. – an aging workforce and declining birth rates resulting in a shrinking talent and labor pool.  However, Canada’s strategy for solving this challenge is radically different from the Trump Administration’s approach.

In its 2018 Annual Report to Parliament on Immigration,  Canada’s Ministry of Immigration, Refugees and Citizenship (IRCC) sets out its goal to admit more than 1 million immigrants from 2019 through 2021.   New immigrants just in those three years would represent 3% of Canada’s 37 million population.

As we’ve noted previously, Canada has also reformed its immigration system so that international students who receive advanced degrees from Canadian universities have an accelerated path to permanent status in Canada.

Meanwhile, the U.S. has been taking steps to curtail legal immigration that are expected to continue.  Time will tell which approach to immigration, Canada’s or the U.S.’s, is the most economically sound.  However, economic leaders in the U.S. have been sounding the alarm that the U.S. has chosen the wrong path.

A recent poll of voters in seven states, including Maine, found that a majority of voters oppose the border wall, and disagree with the government shut down over its funding.

Over 60% of Mainers polled oppose the shutdown and would support Congress voting to fund the government without providing wall funding.  Over 60% of Mainers polled would also oppose President Trump declaring a national emergency in order to build the wall.

The recent survey’s results are in line with multiple polls of the issue in recent months, with majorities  nationwide  consistently disagreeing that the U.S. needs the border wall.  A plurality agree that the U.S. needs more immigrants, not fewer, and strong majorities believe that the U.S. should allow undocumented immigrants to have a path to legal status.

Polls indicate that Mainers and the U.S. public in general are far more sensible about immigration policy than those who are holding the government hostage over the border wall.