We should not expect in 2019 that Donald Trump will visit the Statue of Liberty and deliver a speech about America’s great tradition as a nation of immigrants. But here’s a look at what we should expect to happen on immigration in 2019.
Continued Attacks on H-1B Visa Holders and Their Employers: In interviews, employers and immigration attorneys cannot name any favorable actions the Trump administration has taken toward high-skilled immigrants. Expect this two-year streak to continue into 2019. In December 20, 2018, testimony before the House Judiciary Committee, Homeland Security Secretary Kirstjen Nielsen made it clear U.S. Citizenship and Immigration Services (USCIS) would keep viewing high-skilled foreign-born professionals more as threats to U.S. workers than as assets to the U.S. economy.
Many H-1B visa holders are afraid to change jobs because of administration policies. They fear the suspension of premium processing for H-1B petitions (scheduled to resume February 19, 2019), the increase in denials and processing times that can take up to 10 months could leave them out of status.
In one of his first actions, in 2017, USCIS Director Francis Cissna directed adjudicators to no longer defer to prior determinations of facts, which has contributed to the denial problem. A National Foundation for American Policy analysis of USCIS data found Trump’s “Buy American and Hire American” executive order helped lead to a 41% increase in the proportion of H-1B petitions denied between the 3rd and 4th quarter of FY 2017.
Expect the high denial rates to continue and attorneys to file more lawsuits in 2019. As noted in an October 2018 article, “Employers report receiving H-1B visa approvals that last for as little as one day, 12 days or, quite amazingly, even expire before they receive them.” (See an example here.) Unless stopped by a court, USCIS will likely continue the practice. Attorneys and employers report multiple denials based on USCIS claiming a job is not in a specialty occupation or that it fails to meet a USCIS definition of an employer-employee relationship.
Before the end of 2019, USCIS could move forward on new H-1B regulations, including a rule that would limit who would qualify in a “specialty occupation” and be eligible for an H-1B based on an “employer-employee relationship.” (See here for an analysis.) It is unclear whether USCIS will be able to proceed in time for the FY 2020 H-1B cap filing period (starting in April 2019) with a proposed regulation that would institute pre-registration for H-1B petitions and change the selection order of the H-1B lottery.
Rep. Zoe Lofgren (D-CA), who is the new chair of the House Subcommittee on Immigration and Border Security, is pro-immigration, as is Sen. Lindsey Graham (R-SC), the incoming chair of the Senate Judiciary Committee. Both would likely support a bill to increase the number of H-1B visas, though they have also favored more restrictions on “outsourcing” companies. Given how antagonistic the Trump administration is toward high-skilled immigration it is difficult to foresee an H-1B bill that would earn the administration’s support that employers would consider favorable to business.
Congressional Oversight of Immigration Policy: In the past two years, there has been virtually no Congressional oversight of even the most controversial administration immigration policies. That will change with the Democrats taking control of the House of Representatives.
Expect the House Judiciary Committee and its immigration subcommittee to hold hearings on the separation of children from parents at the border, administration asylum policy (border policies and Department of Justice actions), the functioning of the travel ban and, particularly after the tragic death of a second child in Border Patrol custody, the treatment of migrants in detention. Hearings could also look at international student policy, immigrant entrepreneurs, the H-4 rule, DACA, Temporary Protected Status (TPS), the administration’s public charge rule and other topics. (Other committees may hold hearings as well.)
Action on H-4 and Public Charge Rules: DHS has stated in regulatory documents and court filings (in response to a Save Jobs USA lawsuit) that it intends to rescind the rule that grants employment authorization documents (EADs) to many spouses of H-1B visa holders (H-4 EAD). That action, which would remove work authorization for up to 100,000 spouses, would prompt a flood of comments in response to a rule and a lawsuit on the pro-H-4 side.
The public charge rule (see here for an analysis) received over 210,000 comments during the 60-day period after its October 10, 2018, publication, according to the Immigrant Legal Resource Center. The proposed rule is aimed at reducing legal immigration and appears to go well beyond the department’s statutory authority. It will take months for the Department of Homeland Security to go through the comments and issue a final rule. Litigation could delay or potentially stop implementation. Should a Democrat win the White House in 2020, the Trump administration’s actions on the public charge rule and eliminating H-4 EAD could be reversed, though that process would take time.
Per-Country Limit Bill: In 2017-18, H.R. 392 garnered 329 co-sponsors. The bill would modify and, after a transition period, eliminate the per-country limit on employment-based immigrants to establish a “first-come, first-serve” policy on such green cards without regard to country of origin. The bill does not change the level of legal immigration but it would provide relief from the potentially decades-long wait for green cards many professionals from India experience. Rep. Kevin Yoder (R-KS), the bill’s chief sponsor, lost his bid for re-election.
Rep. Zoe Lofgren, the incoming immigration subcommittee chair, is a big supporter of legislation to eliminate the per-country limit for employment-based immigrants. Bills to eliminate the per-country limit have passed the House before. The Senate has been the problem. If a per-country limit bill passes the House in 2019-20, the challenge again will be to find a way to make it through the U.S. Senate.
International Students: Top Trump administration officials have showed no qualms about opposing the entry of highly educated foreigners. In October 2018, the Financial Times reported, “Stephen Miller, a White House aide who has been pivotal in developing the administration’s hardline immigration policies, pushed the president and other officials to make it impossible for Chinese citizens to study in the U.S.” While that plan was shelved, at least for the time being, it illustrates that no foreigners should consider themselves on safe ground under administration’s policies.
International student numbers have fallen at U.S. universities. “The number of international students enrolled at U.S. universities declined by approximately 4% between 2016 and 2017. . . . The number of international students from India enrolled in graduate level programs in computer science and engineering also declined by 21%,” according to a National Foundation for American Policy (NFAP) study.
Sources indicate international student enrollment also declined in 2018 and is expected to move lower in 2019 as well, affecting mid-level U.S. universities the most. In addition to other impacts, lower international student enrollment reduces the resources schools have available to offer a full range of courses for U.S. students.
A lawsuit expected to proceed in 2019 argues a USCIS policy memo on “unlawful presence” could bar many international students from the United States. Yale, MIT, Stanford and more than 70 other universities have filed an amicus brief in the case.
In 2019, USCIS will likely continue to cite a questionable DHS “overstay” report to justify actions against international students. That includes a proposed rule to establish a maximum period of authorized stay for F-1 students that could be published in 2019 or 2020. Analysts note replacing the current “duration of status” for international students with a “maximum period of authorized stay,” as the potential rule would do, would be another administration policy that would increase uncertainty and discourage international students from coming to the United States.
Ending or restricting Optional Practical Training (OPT) for students in science, technology, engineering and math (STEM) fields remains on the DHS regulatory agenda for action in 2019 or 2020. That would deal a blow to students, universities and employers.
Asylum and Refugee Policy: As in 2018, much of U.S. asylum policy may be decided in a courtroom. In December 2018, U.S. District Judge Emmett G. Sullivan ruled that former Attorney General Jeff Sessions overstepped his authority by preventing most victims of gang violence or domestic abuse from receiving a fair chance to gain asylum in the United States. In November 2018, U.S. District Judge Jon S. Tigar blocked a presidential declaration that prohibited people who entered the United States unlawfully from applying for asylum. The Supreme Court voted 5-4 to prevent the administration from enforcing its asylum ban, though litigation will continue on the case in 2019.
The most important Trump administration action on asylum, taken in response to the “caravan” of individuals from Central America who have traveled to the U.S.-Mexico border, is a policy that would require asylum applicants to wait in Mexico while their case is decided. (Applicants already are being “metered” at ports of entry and must wait weeks or months to apply for asylum.) While accounts vary, it appears this was a unilateral U.S. decision. Mexico, for the time being at least, will assist the asylum seekers with finding jobs and shelter. Many questions remain about how the legal process for asylum applicants would work. This policy, too, will likely invite a lawsuit questioning its legality.
After Donald Trump pledged to help Christian refugees in a January 2017 interview with the Christian Broadcasting Network, the Trump administration admitted only a few dozen Christian refugees from the entire Middle East in FY 2018. Under the Trump administration, refugee admissions to the United States have reached historic lows since the Refugee Act of 1980. Stephen Miller deserves most of the blame or credit, depending on one’s perspective, according to the New Yorker. Expect refugee admission levels to remain low in 2019 and 2020.
Stepped-Up Workplace Enforcement: The irony of Immigration and Customs Enforcement (ICE) increasing worksite enforcement is lost on Trump administration officials, who, no doubt, have read the New York Times article that describes how Donald Trump’s country club in Bedminster, New Jersey, employed unauthorized immigrants – and the efforts managers took to hide the unlawful hiring. In FY 2018, ICE “opened 6,848 worksite investigations compared to 1,691 in FY17,” an increase of more than 300%. Expect this to continue in 2019.
The Social Security Administration has announced it will resume sending out “no-match” letters to employers, stating in a release, “Beginning in spring 2019, we will notify each employer with at least one W-2 form where the name and SSN do not match our records and that corrections are needed.” Note that this comes in an environment where employers are having difficulty finding workers across the skill spectrum and the national unemployment rate is at extremely low 3.7%.
Dreamers and DACA: Attorney General Jeff Sessions proclaimed the end of Deferred Action for Childhood Arrivals (DACA) in September 2017. But surprisingly, as we enter the third calendar year of the Trump administration, DACA remains alive. A preliminary injunction issued by U.S. District Court Judge William Alsup has forced the administration to keep DACA open. “Due to the nationwide injunctions issued by the U.S. District Courts for the Northern District of California and the Eastern District of New York earlier this year, USCIS still is required to accept, and is currently processing, DACA renewal applications from people who have previously received deferred action and a work permit through DACA, while litigation in those courts works through the normal appeals process,” according to the National Immigration Law Center. (See a summary of the DACA litigation here.) The U.S. Supreme Court may decide the fate of DACA in 2019.
With a Democratic majority, legislation to provide lawful permanent residence to “Dreamers,” individuals brought to the U.S. unlawfully by their parents as children, could pass in the House of Representatives in 2019. The question is whether such a bill would go anywhere in the U.S. Senate, given enough Republicans and the White House have previously opposed helping Dreamers without also enacting large reductions in legal immigration and other restrictive measures.
The Wall: During the 2016 campaign, Donald Trump promised to build a wall along the Southern border and get Mexico to pay for it. Not surprisingly, Mexico’s president told Trump his country would not pay to build such a wall. While people have suggested a deal of wall funding in exchange for protecting Dreamers, the White House’s demands in 2017 and 2018 to eliminate nearly all family immigration categories and add many new immigration enforcement provisions as part of any deal for Dreamers proved to have no support among Democrats. It also faced opposition from the Dreamers themselves.
At the end of 2018, Donald Trump succeeded in rallying a sufficient number of House Republicans to support $5 billion in funding to help build a wall, which resulted in a partial government shutdown. Senator Bob Corker (R-TN) said Trump changed his mind and demanded the $5 billion after criticism from commentators Rush Limbaugh and Ann Coulter. The “wall” is now filled with such symbolism that it seems unlikely to go away as an issue in 2019.
The Big Picture: With two years left in Donald Trump’s term, expect the small group of administration officials who drive immigration policy to attempt to “lock in” restrictions on immigration. If time permits, every item on the administration’s regulatory agenda could move forward, as well as any other policies that make it more difficult for foreign-born individuals to study, work or immigrate to America.
When Donald Trump and other administration officials say they favor “merit-based” immigration they do not mean making it easier for high-skilled foreign nationals or international students to enter or work in the United States. They use the term to advocate for lower levels of legal immigration, including preventing asylum seekers from reaching the U.S. and ending most family-sponsored immigration. In 2019, expect the administration to continue its efforts to reduce immigration to the United States.
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