“President Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies – starting with immigration,” according to Axios. “The order could . . . include significant new restrictions on immigration that couldn’t get through Congress but are favored by the president, Jared Kushner and hardline adviser Stephen Miller.” Trump’s thinking, Axios reported, is “heavily influenced” by former Bush administration attorney John Yoo, who wrote in a National Review article, the Supreme Court’s 5-4 DACA [Deferred Action for Childhood Arrivals] ruling last month “makes it easy for presidents to violate the law.”
“I said, ‘Why not just take the DACA opinion itself and do a search-replace. And every time it says ‘DACA’ … replace it with ‘skills-based immigration system,’” Yoo said he told the White House. “This gives President Trump an alternative to create such a program, at least for a few years,” reported the Associated Press. “Not long after the conversations, Trump began promising a series of new executive orders on a range of issues.” Legal scholars dispute Yoo’s interpretation of the Supreme Court decision, arguing it restricted, not expanded executive branch authority.
Trump added to the confusion with a statement on July 10, 2020: “We’re working out the legal complexities right now, but I’m going to be signing a very major immigration bill as an executive order, which Supreme Court now, because of the DACA decision, has given me the power to do that.” A bill and an executive order are two different things. The administration issued a July 28, 2020, memorandum restricting DACA renewals to one year and refusing to process new applications.
On July 14, 2020, Trump said, “We’re going to be signing an immigration act very soon. It’s going to be based on merit. It’s going to be very strong.” On July 28, 2020, he said the administration was working on an immigration bill with a “merit-based” system. Since then, he has made similar statements.
What does this mean for immigration policy?
First, for years, the president and his team have used the term “merit-based” as a code for reducing or restricting immigration, particularly (but not exclusively) family-based immigrants.
Second, the president’s adviser and son-in-law Jared Kushner drafted a “merit-based” immigration plan more than a year ago that was never introduced in Congress. Sources indicate the plan, which attracted critics on both sides of the aisle, is unlikely to move (and might not even be introduced) before the November election. The plan was projected to throw an estimated 4 million people off immigrant waiting lists.
In a May 16, 2019, speech, Trump said the plan would eliminate all current family and employment-based preference categories and replace them with new “Build America” visas awarded by points. While some people with long wait times in family or employment-based green card categories might gain permanent residence quicker, other individuals could apply and receive more points than people now waiting in immigration backlogs.
Third, sources suggest if the administration puts forward a “merit-based” plan before the election, it is more likely – without any sense of irony – to be directed against people admitted to the United States in the most highly skilled visa categories. The president already did that in a June 22, 2020, presidential proclamation that suspended the entry of foreign nationals on H-1B and L-1 visas until at least December 31, 2020.
Longer-lasting restrictive measures would require regulations, and the most likely rule, already on the regulatory agenda, would “revise the definition of specialty occupation [for H-1B visas] . . . and revise the definition of employment and employer-employee relationship.”
Three court cases earlier this year found U.S. Citizenship and Immigration Services (USCIS) improperly limited the definition of a specialty occupation. A settlement between USCIS and the business group ITServe Alliance focused, in part, on the agency’s restrictive interpretation of an employer-employee relationship. (See here.) In addition, the August 3, 2020, White House press event on a new executive order alluded to a regulation against H-1B visa holders at third-party sites.
Other possible regulations: An item on the regulatory agenda for L-1 visas would “propose to revise the definition of specialized knowledge, to clarify the definition of employment and employer-employee relationship and ensure employers pay appropriate wages to L-1 visa holders.” A proposed rule yet to be issued would rescind an existing regulation permitting many spouses of H-1B visa holders to work. However, attorneys say attempting to reorder the H-1B lottery from highest to lowest salary by regulation, as the administration has discussed, would be unlikely to survive a legal challenge.
Another possibility: Make it more difficult for individuals waiting for employment-based green cards to remain in the United States, such as by reinterpreting how the extensions beyond 6 years in H-1B status operate or by forcing foreign nationals to go through the “labor certification” process again in the hopes many will not succeed. Both measures would be questionable from a legal perspective.
One challenge the administration faces on new regulations is time. “Since ‘interim final rules’ published without public participation are more likely to be overturned in court on procedural grounds, a durable change to these skilled immigration categories would need to be released for public comment no later than August or September to have any chance of being finalized before the end of President Trump’s first term,” said William Stock of Klasko Immigration Law Partners in an interview.
He notes the Administrative Procedure Act (APA) generally requires at least 30 days from final publication for a rule to be effective, and 60 days is more common for significant rules. January 19, 2021, becomes a hard deadline for the final effective date of any regulatory change the administration wants to make if Trump is not reelected, and it takes a significant amount of time to process and incorporate comments and have the White House’s Office of Information and Regulatory Affairs sign off on a regulation.
As for “merit-based,” a new report from Cornell Law School proposes a points-based system that attempts to bridge the political divide. The report by law professor Stephen Yale-Loehr, an advisor to the National Foundation for American Policy, and Mackenzie Eason, recommends a 10-year pilot project to allow Congress time to evaluate and make adjustments. More importantly, it adds 50,000 green cards a year and does not attempt to replace any current immigration categories or reduce immigration. Over the past 15 years, most Republican-sponsored bills or proposals used a points system as a way to eliminate family-based immigration categories.
The system would operate through a “single application stream, managed through an “‘expression of interest’ application system like Canada and Australia,” and be “weighted toward longer-term human capital factors such as educational attainment, age, experience, teamwork, and linguistic abilities.” People waiting in employment-based green card backlogs could use one of the extra 50,000 immigrant visas to shorten their wait time. Canada and Australia admit a much higher level of immigrants as a percentage of their countries’ populations than the United States.
Esther Olavarria, who held positions on immigration policy in the U.S. Senate and Obama administration, said in a July 27, 2020, press call any proposal directed only at the most highly educated might be a tough sell politically for Democrats. She said the needs of the U.S. economy go beyond people with Ph.D.’s, pointing to home health aides, nurses and other jobs projected to grow in the coming years. Canadian businesses say this is a shortcoming of their system and Yale-Loehr expressed interest in addressing this aspect. On the other hand, Republicans would likely want to eliminate another category, such as Diversity Visas, in exchange for a pilot project, said Enrique Gonzalez, a former aide to Senator Marco Rubio.
Today, many businesses would argue employment-based immigrants and temporary visa holders are already admitted to the United States based on “merit,” and that the family-based immigrants they hire are also meritorious. The difference is that rather than letting government officials make the underlying decisions on who they should hire, the merit is judged by employers that possess a strong self-interest in making correct judgments about who works for them.
With approximately three months until the election, more action on immigration is expected. The last four years have taught businesses that any measure the Trump administration introduces on immigration is likely to hinder their ability to be more competitive.
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