Right Now, ‘Merit-Based’ Just Means Fewer Immigrants
by Foster LLP, on News
By Stuart Anderson, Forbes
When the Trump administration says it wants “merit-based immigration” it’s not talking about admitting 1 million scientists and engineers, or even any additional immigrants with college degrees. In fact, in the past year, the Trump administration has not taken a single action to make it easier for U.S. employers to hire or retain high-skilled foreign nationals. No, “merit-based” is a code phrase for reducing legal immigration by up to 50% and eliminating almost all family immigration categories and the Diversity Visa lottery.
Under current law, U.S. citizens can sponsor their spouses, parents, siblings or children for immigration. Under a White House public relations blitz designed to eliminate the ability of Americans to sponsor their parents, siblings or children (18 years or older), the president and his surrogates have labeled as “extended family members” people who normal human beings all consider part of their regular family. Does anyone in America actually regard their mother or father as an extended family member? Do decent, moral people consider their sons or daughters to be “distant relatives” once they reach the age of 18?
No Republican members of Congress or White House officials believe their own children become castoffs upon reaching 18 years old – the president’s adult daughter even works in the White House and his sons run his business. But the rhetoric is aimed at convincing Congress to eliminate family categories in order to substantially reduce legal immigration.
A recent analysis of the White House plan by David Bier and I concluded, “The plan would cut the number of legal immigrants by up to 44% or half a million immigrants annually—the largest policy-driven legal immigration cut since the 1920s. Compared to current law, it would exclude nearly 22 million people from the opportunity to immigrate legally to the United States over the next five decades.”
Even if the Senate makes small adjustments to the White House proposal it would still lead to millions of fewer legal immigrants entering the U.S. than under current law, particularly after any backlog is drained of existing applications as a prelude to ending the categories. The White House plan provides for no appreciable increase in employment-based immigration and would eliminate the ability of many family-based immigrants who possess high levels of skill to come to America.
We shouldn’t assume just because an individual is sponsored by a family member that he or she “lives in a hut.” Almost 50% of immigrants who entered the U.S. on a family or diversity visa in 2015 had at least a college degree, which is much higher than the 29% of U.S. natives with a college degree, according to an analysis by David Bier. Only 11% of those entering on family and diversity immigrant visas did not complete high school, about the same as U.S.-born.
Besides, America’s economy needs labor force growth, entrepreneurs and people at different skill levels, as a recent Fed report made clear. “A Federal Reserve survey released Wednesday found labor shortages all over the country,” reported CNNMoney in January. “It could hurt economic growth in the long term. The survey showed worker shortages increased significantly at the end of last year. In New England, restaurants can’t find waiters, waitresses and cooks. One manufacturer was three months behind schedule as he struggled to hire workers for a new factory.”
As for family and other immigrant startup businesses, “Immigrants are almost twice as likely as the native-born to become entrepreneurs,” according to the Ewing Marion Kauffman Foundation. And analysts have noticed: “In the United States, immigrants increasingly contribute to entrepreneurship,” writes economist Magnus Lofstrom. “Immigrants account for more than 90% of the growth in self-employment since 2000.”
Even the administration’s demands on illegal immigration need to answer a relevant policy question: Why do we need enormous new spending levels and increased federal powers when just two months ago the administration took a victory lap on how low illegal entry into the United States has fallen? A December 2017 report from U.S. Customs and Border Protection (CBP) Department of Homeland Security (DHS) declared, “In FY17, CBP recorded the lowest level of illegal cross-border migration on record, as measured by apprehensions along the border and inadmissible encounters at U.S. ports of entry.”
The “inside joke” is that while the Trump administration says it supports “merit-based” immigration, attorneys and U.S. employers consider the Trump team the most hostile administration toward high-skilled immigration in the past half-century. This is not surprising, since many key administration staff worked for senators and organizations strongly opposed to high-skilled immigration.
In the past year, the Trump administration has taken numerous actions to make it more difficult for U.S. employers to hire or retain highly skilled people, and has taken no actions to make it easier, according to a review by the National Foundation for American Policy. Here is a partial list:
- The “Buy American and Hire American” executive order has been used to justify numerous new administrative and regulatory actions, including instructing U.S. Citizenship and Immigration Services (USCIS) adjudicators to no longer “defer to prior determinations,” approvals or findings of facts when renewing an H-1B or other high-skilled visa. This has created uncertainty and peril for both employers and high-skilled foreign nationals.
- USCIS is issuing many more Requests for Evidence and denying more H-1B applications.
- The administration has announced it would rescind the rule that allows many spouses of H-1B visa holders to work in the United States. The 2015 regulation helps retain skilled workers and provides greater dignity to spouses, many of whom are well-educated women born in India.
- The Trump administration also announced it would rescind a rule that allows International Entrepreneurs to receive parole in connection with creating a new business and jobs. Dozens of business organizations, led by the National Venture Capital Association, have called on Donald Trump to retain the rule.
- DHS will “revise the definition of specialty occupation” to make it more difficult to obtain an H-1B visa, even though an H-1B is typically the only practical way for a high-skilled foreign national to work long-term in the United States.
- DHS will propose to make it more difficult (or potentially impossible) for international students to work after graduation for 12 months on Optional Practical Training (OPT) or an additional 24 months for individuals in a STEM (science, technology, engineering and math) field. As explained here, this could strike a dagger at science and engineering innovation taking place inside the United States.
- The administration has required employment-based immigrants to undergo in-person interviews, which attorneys believe will lead to delays and could result in denials for people already waiting years for employment-based green cards.
- The various versions of the administration’s travel bans, primarily directed against people from Muslim countries, have prevented individuals from the targeted nations from working in the United States.
If the Trump administration was serious about helping America attract and integrate more high-skilled scientists and engineers, rather than just proffer the term “merit-based,” it would need to reverse its recent actions on legal immigration and propose a positive agenda.
First, the administration would need to announce it will neither rescind nor modify in a restrictive manner the definition of an H-1B specialty occupation, the International Entrepreneur rule, the H-4 rule that allows the spouses of H-1B visa holders to work, and the rules on Optional Practical Training and STEM OPT for international students. It would also need to call off the dogs on denials and Requests for Evidence for high-skilled work visas.
Second, reducing legal immigration will harm economic growth. The administration should urge Congress to keep current family immigration categories, since many family-sponsored immigrants have high skills and contribute to family-owned businesses and entrepreneurship more generally. Moreover, we should remember that future (potential) employment-based immigrants are also interested in someday sponsoring their parents, adult children or siblings, since we are dealing with human beings with genuine connections to loved ones, not just a skill set or a bundle of attributes.
Third, the administration should ask Congress to increase the number of employment-based green cards, exempt both the dependents of high-skilled immigrants and individuals with STEM degrees from U.S. universities from the employment-based caps, provide “age-out” protection for the children of employment-based immigrants, increase the number of H-1B visas and improve labor mobility for such visa holders, and eliminate the per-country limits that lead to long wait times for many individuals born in India and China.
Dreamers deserve a permanent solution but the Trump administration, aided unfortunately by some Republican senators with prior good pro-immigration credentials (and by others who simply don’t like immigrants very much), is insisting on a series of “poison pill” provisions that would seriously harm the country as the price for helping those brought here by their parents as children.
Trump administration officials and their policies have never been about bringing in more “high-skilled” immigrants based on “merit.” The best evidence is to examine their actions, which have been unfriendly toward both highly educated immigrants and their U.S. employers.