President Donald Trump has used his executive order pen quite a bit on immigration during his presidency. Most recently, he has used it to deny entry to most immigrant visa applicants from abroad to protect Americans who have lost jobs due to coronavirus from the “impact of foreign workers on the United States labor market.” And according to reports, the White House is considering a new executive order restricting visas for temporary workers that will likely make similar economic arguments to explain why the entry of these nonimmigrants would hurt the prospects of U.S. workers. Nonimmigrant visas under consideration for the order include H-1B, H-2B, H-2A, optional practical training work authorization, and summer work-travel programs for foreign students.
However, blanket bans on immigrants or certain nonimmigrant visa categories do not recognize that even in the current COVID-19 economic downturn, there may still be a need to shore up essential or ongoing industries that have experienced challenges recruiting or retaining sufficient U.S. workers. Industries that the administration has deemed essential, including agriculture, meat and poultry processing, and grocery retail and delivery, employ disproportionately more immigrants than native-born American workers. Additionally, the number of new immigrants admitted each year for all purposes is tiny compared to the number of unemployed Americans, so they are unlikely to have a very big impact on the availability of jobs for Americans in any case. Furthermore, many unemployed Americans expect to be rehired as the economy rebounds, meaning they are not looking for other jobs. Recent BPC/Morning Consult polling showed that unemployed voters were less likely to support immigration bans or to think that they will result in protecting American jobs.
Still, majorities of Americans support Trump’s immigration ban in the current environment, so we must ask why. It may be due, at least in part, to the fact that very few voters can link how the immigration system works to an economic benefit, even if many studies have shown that, in the aggregate, immigrants are good for the economy. The recent BPC/Morning Consult survey showed American voters deeply split over whether immigrants would help or hurt with the economic recovery from COVID-19. The current system is locked in statute, including prioritizing admission based on family relationships, not on work or economic needs. And the system seems to have little direct ability to respond to current economic conditions like focusing on shortage occupations or adjusting immigration numbers to objective data. These aspects of the system do not help the public believe that the system helps the economy.
Other countries make a much more explicit connection between their immigration systems and the country’s economic needs. In BPC’s report examining five other countries’ temporary to permanent immigration systems, most had a combination of ways to ensure that temporary or permanent migrants supported the economy and did not hurt the domestic labor market. These mechanisms included skills tests, salary floors, union approval over new hires, individual employer labor market recruitment tests, and shortage occupation lists.
The United States has tried some of these means. Certain visas are set aside for those of “extraordinary ability,” a type of skills test. There is also a small number of green cards available based on a so-called “shortage occupations list,” or Schedule A, a list created and maintained by the Department of Labor. Theoretically, the Labor Department could designate any occupation it found to have a shortage of available workers in the United States to this list, but currently only nurses and physical therapists make the cut even though many other industries face shortages.1 For temporary workers, the North American Free Trade Agreement created a visa for nationals of Canada and Mexico to work in the United States based on a list of professions negotiated by all three countries but is not based on demonstrated specific labor shortages.2 However, like the Schedule A list, the Trade NAFTA professionals list has been amended only once since the ratification of NAFTA back in 1994.
However, one must have the deep experience of an immigration lawyer to know and understand these rules. This explains why so many Americans believe that the system isn’t set up to help the country economically. While 2018 BPC polling showed that majorities do support family reunification for its own sake, the lack of a more direct linkage between the immigration system and the economy prompts ambivalence regarding the benefit of immigration and immigrants to the country as a whole.
A more flexible, straight-forward system that can be clearly explained to the public and that is more explicitly linked to economic need could go a long way toward shoring up support for immigration more broadly, even in the face of severe economic pressures. Other countries have done this, and the United States, with our history of immigration, should be able to do so as well.
1 Schedule A also has a Group II, for “aliens of exceptional ability” that can avoid the need for a labor market test. However, this list is largely obsolete since the creation of the EB1 employment based immigrant category for aliens of extraordinary ability, and the creation of the national interest waiver provision for aliens of exceptional ability of by statute in 1990. But the categories still exist, and Congress added visas to these categories in the 2005, the last time either list was updated.
2 The NAFTA Appendix for the TN visa was not amended or changed by the US-Mexico-Canada Agreement and therefore continues to be valid.
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