It may be best to ignore the politics and rhetoric around the Trump administration’s new immigration plan and focus on its most relevant part: Under the proposal, more than 4 million people waiting in family and employment-based green card backlogs would have their immigration applications eliminated, even if they have been waiting in line for years to immigrate.
“Immigrants in the green card backlog would lose their place in line and would need to apply under the new point-based system,” according to an analysis from Berry Appleman & Leiden. “The White House has said people who are currently waiting for green cards will receive additional points, but no specifics have been released.” This was confirmed by Donald Trump’s May 16, 2019, speech, in which he stated that all current family and employment-based preference categories would be eliminated and replaced by new “Build America” visas awarded by points.
There will be no per-country limits under the new plan, which requires approval by Congress, and immigrants waiting for green cards would have to apply for permanent residence under the point system. While some with long prospective wait times for employment-based green cards could gain permanent residence more quickly, there is no way to know for certain whether any particular individual whose pending application is eliminated would secure a green card under the point system envisioned in the Trump administration’s proposal.
The plan is expected to be transformed into legislative language and introduced in Congress, which means it is possible changes could be made. The elimination of nearly all family immigration categories, as well as preventing those waiting in backlogs from immigrating, virtually assures Democrats will oppose the proposal. (Democrats will likely have other objections.)
For businesses, a key problem with a point-based system is if it doesn’t work out for them or has large unintended consequences, then it will be almost impossible to fix. The last major legislation to change America’s green card system was in 1990. The Immigration Act of 1990 locked into place the current annual level of 140,000 employment-based green cards and per-country limits, as well as 65,000 H-1B visas a year (with some exemptions). Those levels have proven inadequate because policymakers could not have anticipated the enormous demand for high-skilled technical labor created by the World Wide Web, smartphones, e-commerce, cloud computing and other technological advances.
For individuals and families, particularly those among the approximately 4 million people waiting in green card backlogs, the administration’s proposal raises other concerns. More than 3.6 million people are waiting in family-based immigration preference backlogs as of November 1, 2018, according to the U.S. Department of State. Approximately 2.2 million are in the category for siblings of U.S. citizens, about 950,000 are the adult children of U.S. citizens and about 470,000 are spouses and minor or adult unmarried children of lawful permanent residents. The applications of these individuals and families would be eliminated. Mexico, the Philippines, India, Vietnam and China and the leading countries of origin for people in the family backlogs.
The backlog of Indians who are principals and dependents in the employment-based second and employment-based third categories comes to approximately 550,000, according to U.S. Citizenship and Immigration Services (USCIS). State Department data indicate there are additional tens of thousands of individual waiting for employment-based green cards outside of the United States. These applications, with a possible exception for those whose adjudications are close to any bill’s date of passage, would be eliminated under the administration’s plan as currently explained.
The half million or more individuals waiting in employment-based immigrant backlogs must hope to achieve enough points or will eventually need to leave the country. It is unclear whether there would be any provision to allow those in H-1B status to remain in the United States beyond the six-year limit, since under current law that provision is pegged to a pending employment-based green card application and, it appears, there will no longer be any “pending” green card applications, just “Build America” visas.
Individuals whose applications are eliminated, such as an engineer in the employment-based second or third preference already waiting 7 years for a green card, will need to compete with each other, family immigrants and, in theory, anyone else in the world who wants to apply in a given year for a green card in the United States. If 2 or 3 million people apply each year under the point system, there is little guarantee that those whose applications would be eliminated, even if they are awarded some additional points, would garner a high enough “score” to gain permanent residence under the new system.
In sum, individuals, families and employers will need to hope the new system works. If it doesn’t, then it could be a long time before changes are made to correct any flaws that are discovered after passage.
A note on the Trump administration’s assurance the plan would not result in a reduction in immigration levels. There is no way to know this will be the case. Not only is no legislative text available but the “immediate relatives” category for the spouses, parents and children under age 21 is sensitive to requirements related to “public charge” determinations.
A National Foundation for American Policy analysis of State Department data found a change on “public charge” in the Foreign Affairs Manual, made in January 2018, was likely responsible for the 7% decline in the Immediate Relatives category between FY 2017 and FY 2018 and a decline of 10,122 or 29% in the number of K-1 Fiancé(e) of U.S. Citizen visas issued between FY 2017 and FY 2018. A Department of Homeland Security proposed regulation on public charge is more far-reaching and could make it much more difficult for the spouses and children of U.S. citizens to gain admission. (Parents of U.S. citizens would no longer be admitted as “immediate relatives” under the administration proposal.)
The most common argument made against helping Dreamers and others without legal status is that we should welcome immigrants to America who have waited patiently to immigrate and have “played by the rules.” The irony is that over 4 million people who have waited patiently in immigration backlogs and played by the rules have just been told they have wasted their time.
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