With the conclusion of the party conventions last month, we took a detailed look at Democratic nominee Joe Biden’s Plan For Securing Our Values as a Nation of Immigrants and President Donald Trump’s newly released agenda for a possible second term.1 Although immigration is not at the forefront of the public’s mind in the leadup to November 4, 2020, a more detailed look at both the Democratic and Republican plans gave us a window into what a new or continuing administration could bring in terms of immigration reform. After a detailed analysis of Biden’s platform, we found the Democratic nominee made significant updates and expansions from when the platform was first released to his approach on reforming the legal immigration system should he enter the White House in January. In contrast, Trump’s second-term agenda reiterates hardline positions he has held throughout his time in office. It also does not include any specific mention of reforms to legal immigration, instead focusing on ending illegal immigration and protecting American workers. Below, we outline five key takeaways from the candidates’ platforms and their implications for immigration reform in 2021.
Immigrants and the Economy:
Should either administration arrive in the White House in January 2021, it will be tasked with outlining a massive economic recovery plan in the aftermath of the pandemic. A key premise of the Biden immigration platform is tying it to how immigrants can contribute to economic recovery post-COVID-19. The platform cites how immigrants contribute to growing the U.S. economy and leans heavily into the idea that immigrants are a driver of economic growth across different industries and sectors. “Key sectors of the U.S. economy, from agriculture to technology, rely on immigration. Working-age immigrants keep our economy growing, our communities thriving, and country moving forward,” according to the document. The Biden plan also leans into the idea that a “fair and just” immigration system can facilitate significant economic growth, citing research from the Congressional Budget Office that found that S.744, the 2013 Senate comprehensive immigration bill, would have increased GDP by 5.4% by 2033.
While Trump’s platform leans heavily into how he will “create 10 million jobs in 10 months” and “create 1 million new small businesses” as evidence of potential economic growth, his agenda offers no details about how his administration would achieve these goals. However, it appears that he believes that immigrants would not play a role in terms of economic recovery from the pandemic. Other parts of the second-term agenda promise to “prohibit American companies from replacing United States citizens with lower-cost foreign workers,” and Trump has argued that immigrants take jobs from U.S. workers. With recent executive orders restricting new immigrants and temporary workers, Trump has argued that these workers could hurt Americans amid the economic downturn caused by the pandemic, albeit without citing specific evidence to support this assessment. We expect Trump to continue to use these types of arguments throughout the final phases of the campaign season.
Reforms to the temporary visa system:
The COVID-19 pandemic has shone a spotlight on the extent to which select industries rely on seasonal migrant workers, and small businesses across the country suffer when they cannot hire workers from abroad for an entire season. Trump’s plan specifically notes his administration would “prohibit American companies from replacing United States citizens with lower-cost foreign workers.” While Trump does not specify the mechanisms he would utilize to do so, it is possible that this policy could be similar to the proclamation on certain nonimmigrant visa programs that he signed in June, as the administration has relied heavily on executive action to change policy in the past.2 The goal of the June proclamation was to suspend the entry of certain immigrants to the United States in response to the growing unemployment rate as a result of the pandemic. In the proclamation, which extended an executive order issued in April, the administration argued that “several nonimmigrant visa categories […] poses a risk of displacing and disadvantaging United States workers during the current recovery.” The proclamation therefore limited any nonimmigrant seeking entry to the U.S. pursuant to an H-1B, H-2B, J, or L visa. The State Department did issue National Interest Exceptions to both proclamations in August, which offered some concessions to those applying for temporary nonimmigrant visas from abroad.
The Biden platform puts forth a plan to reform the current system “to allow workers in these select industries to switch jobs, while certifying the labor market’s need for foreign workers” in that sector. Employers would theoretically supply data showing a lack of labor availability in their given industry, and the economic harm that would result if temporary workers were unavailable. If enacted, the reforms would also stipulate “strong safeguards that require employers to pay a fair calculation of the prevailing wage and ensure the right of all workers to join a union and exercise their labor rights.” In essence, the Biden plan for reforming temporary visas would be similar to existing mechanisms in place for certifying labor condition applications for H-1B petitions, for example. By allowing employees to more easily switch jobs, however, the reforms could allow for greater flexibility for workers within the temporary system. Workers on H-2B visas can currently file a petition to change positions with their current H-2B employer, but they cannot transfer their existing visa from one employer to another without the new employer filing a new labor certification application and completing a labor market test and recruitment procedures in addition to the sponsoring petition. In addition, H-2B qualified employment is of a short-term need for a limited period of time. H-2A workers also cannot transfer their visa between employers without a new application being filed for the same reason.
In the case of high-skilled temporary visas, the Biden platform envisions working with Congress to reform these categories to establish a wage-based allocation process and enforcement mechanisms to ensure the visas are aligned with the U.S. labor market and do not undermine wages. The plan also outlines support for “expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country,” which create significantly long backlogs.
Agricultural workers, legal status, and a path to citizenship:
The Biden platform promises it will work with Congress to enact legislation that would provide migrant farmworkers who have spent years working on American farms with “legal status based on prior agricultural work history, and a faster-track to a green card and ultimately citizenship.” Currently, recipients of H-2A visas do not have “dual intent” and therefore cannot legally work toward a green card while maintaining temporary status. This aspect of the Biden platform is similar to provisions in the bipartisan Farm Workforce Modernization Act of 2019, which stipulated that a “certified agricultural worker…may apply for lawful permanent resident status after meeting various requirements, including performing a certain amount of agricultural labor for a number of years.”
While Trump’s second-term agenda does not specifically discuss farmworkers, Trump did exempt H-2A visa holders from the nonimmigrant visa ban, deeming them essential to the U.S. food supply chain during the pandemic. In fact, the H-2A program has expanded over the course of the Trump administration. However, Trump has never publicly talked about providing such workers with green cards.
States and immigration policy:
Our current immigration system does not effectively allocate visas across the differing needs of the 50 states. As we have previously written, state governments have little ability to direct foreign workers to their state or to specific industries or regions within the state. As a result, some policy experts believe that delegating additional immigration decisions to the states would produce better economic outcomes because state governments are in a better position to understand the workforce and population needs of their own counties and communities.
According to his platform, a Biden administration would seek to create a new visa category that would “allow cities and counties to petition for higher levels of immigrants to support their growth.” Seemingly based on the Heartland Visa that Pete Buttigieg championed during his campaign, this new type of visa would theoretically funnel immigrants to “midsize” counties or cities to support economic development in that region. Employers in these regions would be required to “certify there are available jobs” for foreign-workers and that “there are no workers to fill them.” Recipients of this new visa would be required to work and reside in the city or county that petitioned for them and would be subject to the same certification protections as other employment-based immigrants. However, it is unclear what mechanisms the Biden administration would put in place to require or incentivize immigrants to remain in these areas for an extended period of time.3
In his agenda, Trump’s makes one reference to states’ and cities’ role in immigration – declaring he will “end sanctuaries cities to restore our neighborhoods and protect our families.” In addition, he promised to “block illegal immigrants from becoming eligible for taxpayer-funded welfare, healthcare, and free college tuition.” While terminating sanctuary cities is not a new position for Trump, attempting to curtail states’ abilities to make purchasing health insurance on exchanges or in-state tuition available for unauthorized immigrants is, and it is hard to imagine that this policy would not run into significant legal challenges. While Trump could theoretically try to get Congress to pass legislation to restrict sanctuary jurisdictions or change their roles in what his agenda calls “welfare,” that would be unlikely if the House remains under Democratic control, meaning Trump would have to continue relying on executive measures to meet these goals. In addition, if a second-term Trump administration did try to pass these types of laws, it is probable they would face legal challenges.
Throughout his time in office, Trump had made efforts to punish sanctuary jurisdictions through executive orders and Department of Justice policies, which have been met with various state legislation either supporting or opposing these efforts. For example, the California state legislature enacted S.B. 54 (2017), which prohibits state and local law enforcement from using personnel or funds to hold, question, or share information about individuals with federal immigration enforcement unless those individuals have a conviction for specific crimes. Meanwhile, Texas enacted S.B. 4 (2017), an anti-sanctuary city law that prohibits cities from adopting sanctuary policies that limit cooperation with immigration enforcement authorities and allows all state and local officers to ask all detained individuals about their immigration status.4 In February 2020, the Justice Department filed lawsuits against state and local governments in California, New Jersey, and Washington state over sanctuary city laws. However, in June 2020, the Supreme Court said it will not hear cases over whether local government can declare themselves sanctuary cities, marking a judicial roadblock for the Trump administration preventing further litigation on the matter. The conflict between states and the federal government over immigration policy is not new and will likely continue to see litigation surrounding who has jurisdiction over what aspects of immigration policy.
Permanent, employment-based pathways to legal residency:
As we discussed in the prior sections of this piece, Trump’s commitment to prohibiting American companies from replacing United States citizens with lower-cost foreign workers may take shape in an executive action similar to the green card and nonimmigrant visa ban and could mean extending these restrictions indefinitely. It remains unclear what additional specific modifications a second-term Trump administration would include in these actions, but the administration already expects a drastic drop in demand for U.S. visas for years to come.
This piece of the Biden platform is perhaps where there is the most direct acknowledgement of public concerns that more immigration in times of severe economic downturn can hurt Americans’ ability to find employment. While the Biden platform maintains it will work with Congress to increase “the number of visas awarded for permanent, employment-based immigration based on macroeconomic conditions,” the nominee also concedes that he would “promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment.” The platform counterbalances the proposed mechanisms to reduce the number of these permanent employment-based visas by committing to exempting recent graduates of doctoral programs in STEM fields in the United States from any sort of visa cap.
This section of the platform reemphasizes how foreign-born graduates of U.S. institutions keep the economy globally competitive while specifically aligning visa allocation to the macroeconomic conditions of the United States. By framing visa allocation in this way, it allows a potential Biden administration to reform the immigration system to be more flexible, adaptable, and responsive to changing economic conditions, something that may both increase or decrease visas. However, the platform does not specify or outline what measurements or indicators Biden would use to determine when to increase or decrease the number of permanent, employment-based visas. Would the administration look at the unemployment rate? Or would it look at particular job categories and longer-term labor market needs? Should Biden be in the Oval Office come January 2021, stipulating these kinds of indicators will be essential to determining how flexible and responsive a reformed immigration system can truly be.
As the United States continues to grapple with the COVID-19 pandemic, the Democratic platform leans heavily on emphasizing the extent to which immigrants grow and support our economy, and, theoretically, the extent they can contribute to economic recovery in post-pandemic world. In emphasizing wages, union, and job portability, however, the platform also acknowledges that some aspects of the current visa system may hurt American and immigrant workers. In his speech during the final night of the Democratic convention, Biden noted that rebuilding the economy post-COVID can be done in part via an immigration system that “powers our economy and reflects our values.” However, it is apparent that the reforms Biden proposes will rely heavily on legislation being passed by Congress, meaning it remains to be seen as to whether a newly elected Congress will cooperate. The platform also lacks details on how Biden plans to achieve these ambitious goals, which will be critical to see whether any such reforms can be achieved.
Trump’s announced second-term immigration agenda offers few additional details or distinctions from the immigration goals of his first term, which emphasized pushing for stricter border security and immigration enforcement. Like Biden, the agenda does not offer significant details for how the administration would achieve these goals. Even in the short, bulleted list, Trump primarily focuses on illegal immigration and enforcement, both pillars of his policy approach to date. In his speech during the final night of the Republican convention, Trump emphasized his contributions to the border wall, stopping “asylum fraud,” and deporting gang members, describing his immigration policy as a whole as “pro-American.” Trump has held firm to his hardline immigration stances during his presidency. He made immigration a centerpiece of his 2016 presidential campaign and raised the issue’s profile again leading up to the 2018 midterms, so it’s reasonable to expect he will once again focus on it during the remaining weeks of this campaign.
1 This year, the Republican Party did not release an official 2020 platform, instead deciding to back Trump’s second-term agenda policy points. The official 2020 Democratic policy platform can be found here.
2 Trump has undertaken over 400 executive actions on immigration since entering the White House.
3 For example, the visa could require an immigrant and her family to remain in the region that petitioned on her behalf for a certain number of years.
4 For more information on the intricacies of state immigration laws, see our 2018 report here.