By Anthony Korda, Esq.
One of President Trump’s election promises in 2016 was to deal with illegal immigration. At the Republican National Convention there was an impression that while the Trump administration was tough on illegal immigration, it welcomed legal immigration and that includes those seeking to work in the US as well as those seeking to become US citizens and those fleeing government persecution. However, by the end of his term in office, Donald Trump will have reduced legal immigration by almost 50%.
A Presidential Proclamation in April 2020 blocked the entry of legal immigrants to the United States in almost all categories. The effect of this has harmed refugees, employers and Americans who want to live with their spouses, parents or children. Perhaps more relevant to this Article, it also negatively impacts the country’s future labor force and negatively impacts economic growth.
“Average annual labor force growth, a key component of the nation’s economic growth, will be approximately 59% lower as a result of the administration’s immigration policies, if the policies continue,” according to the National Foundation for American Policy .
In FY 2015 the denial rate for H-1B Petitions was 6%. In FY 2020 it increased to 30% and a further Presidential Proclamation in June 2020 suspended the entry of foreign nationals on H-1B and L-1 Visas under the premise of protecting American jobs and encouraging economic recovery. Many visas are now being denied on health pretexts. However, this policy is likely to have the opposite effect and send jobs, investment and economic growth abroad. Many prominent American companies have already announced that, rather than rescinding job offers to those affected by the new visa rules, jobs will simply be moved abroad to Canada or elsewhere.
In a recent paper for the National Bureau of Economic Research , Britta Glennon argues that that “U.S. multinational companies have already offshored tens of thousands of jobs and opened new foreign affiliates in response to H-1B visa restrictions much less severe than those being implemented now. The countries that benefited the most at the time—and are likely to benefit once again now—were China, India, and Canada”. “In other words, rather than going to Americans, those jobs are likely to go to another country.”
However, it is not all doom and gloom. With the change in administration, many of Trump’s restrictive immigration policies are likely to be overturned. Although the contrast between the Biden and Trump administrations immigration policy has been described as “night and day”, there are some surprising areas of common ground when discussing employment-based immigration.
Biden's plan calls for reversing what Trump has done on immigration since 2017, including halting the president's executive orders and proclamations restricting travel, limiting green cards and guest worker programs, and eliminating the Deferred Action for Childhood Arrivals (DACA) program, which granted protection to certain undocumented immigrants brought to the country as children.
Biden's platform also outlines larger goals to work on with Congress, such as increasing the number of employment-based visas; providing a path to legalization for the 12 million undocumented immigrants in the country; and creating a new, decentralized immigration stream for foreign workers that is based on local and state needs.
The differing views of immigration arise because of the different assumptions about the value and contributions that immigrants make to the economy. Trump’s view is that immigrants harm native-born workers, while Biden’s proposals assume that immigrants make positive economic contributions.
“There are some possible areas of overlap, however,” according to Angelo Paparelli, an attorney in the New York City and Los Angeles offices of Seyfarth and one of the foremost experts on U.S. immigration. Biden’s “Build Back Better” sounds very similar to Trump’s “Buy American, Hire American” executive order. In some respects, the limits imposed on H-1B visas will not be that different. Biden’s proposal will establish a wage-based allocation process to ensure alignment with the labor market.
The incoming administration of President-elect Joe Biden could swiftly reverse an array of President Donald Trump’s immigration policies, many of which remain among the most contentious initiatives of his administration.
Biden could overturn many guidelines using the same mechanism Trump employed to implement them: executive orders. Others, however, will require more than a policy declaration, experts say. Policies that were changed through regulations will likely require new regulations and a new public comment period.
The First 100 Days
Within the first 100 days, Biden is expected to repeal Trump’s executive order that barred most nationals from certain countries from visiting the United States. Initially, the restrictions targeted citizens of some majority Muslim nations, but they were expanded to include other countries Washington regards as security threats.
Myanmar, Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania are now part of an amended executive order that already imposes travel restrictions on some citizens from Iran, Libya, Somalia, Syria and Yemen, along with Venezuela and North Korea.
With the exception of H-1B visa limits, other business visas that have been restricted by the Trump administration include L-1 Intra-company transfers, E-1 and E-2 Treaty Traders and Investors and EB-5 Investor Visas. While there have not been any significant policy changes in relation to the above visas, quietly, processing delays and slow-downs, closure of embassies and executive orders that stop visa processing, have all served to undermine and significantly reduce such visas.
Biden’s proposals include working with Congress to increase the number of permanent employment- based visas to reflect macroeconomic conditions and favors eliminating the current visa caps.
The legislation would expedite the flow of high-skilled workers from countries such as India and China who face inordinately long waits for employment-based green cards and would clear the wait list in less than a decade. But the bill would also lengthen wait times for immigrant workers from the rest of the world, which has caused concern.
Biden has also proposed exempting from any cap recent U.S. graduates of Ph.D. programs in STEM fields and providing foreign graduates of U.S. doctoral programs a green card with their degree. This would reduce the number of applicants waiting for their petitions to be adjudicated and would act as an incentive for the brightest foreign students to remain and benefit the US economy after they complete their studies.
A priority for the Biden administration should be to deal with enormous backlogs" at USCIS and at consulates abroad due to both COVID-19-related concerns and restrictive policies. Another priority at USCIS should be to rescind memos that have slowed processing, increased requests for evidence and made it more difficult to gain approval of previously approved applications.
Assistant Professor at the Wharton School of Business
ABOUT THE AUTHOR: Anthony Korda, Esq., is the owner of The Korda Law Firm with offices located in Naples, Florida; Beverly Hills, California, and a presence in London. He is admitted to the Bars of California and DC and is a Barrister of the Supreme Court of England & Wales, where he is authorized to accept Direct Access cases. LEARN MORE ABOUT ANTHONY