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Trump-Era Policies Led to Significant Declines in Immigrant and Nonimmigrant Visas. Does Congress Aim to Reverse?

On December 31, 2020, the Trump administration extended the June 2020 proclamation that suspended the entry of certain immigrant and nonimmigrant visa holders1 through March 31, 2021. The administration argued that the U.S. labor market woes from the COVID-19 pandemic continue to pose a threat to the employment of American workers, displacing them from jobs during COVID-19 recovery. Despite these supposed protections, it appears that no more native-born workers have applied for available H-2B visa jobs in the fiscal year 2020, wasting eligible H-2B visas that would have qualified under the 66,000 annual worker cap. The extension of the proclamation, moreover, continued efforts by the outgoing Trump administration to restrict legal immigration, even after he left office on January 20. Although President Joe Biden signed executive orders on his Inauguration Day to overturn other travel bans that affected mostly Muslim and African countries, he has not, as of this date, revoked these other proclamations restricting immigrant and nonimmigrant visas.

Research suggests that, even before Trump’s proclamation, the United States was experiencing a decline in legal immigration of foreign-born individuals. Data released by the Department of Homeland Security shows that the number of individuals obtaining legal permanent residency in the United States declined for a third year in 2019, with a 12% drop in those obtaining permanent residency from FY2016 to FY2019. The majority of the decline in 20192 was in the family-sponsored preferences and refugee admissions. Under the Trump administration, legal refugee admissions to the United States also dropped from an already record-low figure of 30,000 in FY2019 to 18,000 in FY2020.3

Actions undertaken by the Trump administration, compounded by the travel restrictions due to the pandemic, resulted in the continuous decline of international undergraduate and graduate students attending U.S. colleges and universities under the student visa program. According to the annual Open Doors Report, international student enrollment to U.S. universities and colleges was on a declining trend even before the pandemic. The report shows that the 2018-2019 school year enrollment rates among international students dropped by 1.8% from the preceding year. Since the beginning of the pandemic, however, international student enrollment has further declined by a staggering 43% for the 2020-2021 academic year.

It is yet to be determined whether the decline in international student enrollment will reverse post-pandemic and post-Trump, but whiplash policy changes undertaken by the Trump administration during the pandemic may have exacerbated perceptions of the United States as a less welcoming place for international students and foreign workers. This, along with welcoming policy changes and easier post-graduation labor opportunities in other countries competing for international talent, may have displaced the United States as a top choice for many incoming international students. For example, in 2019, Canada experienced double-digit growth for the second year in a row in international students, trailing only slightly behind the United States and Australia. The repercussions of declining student enrollment rates due to the capricious policy changes undertaken in 2020 in response to the pandemic may not be clear for years to come.

While the United States still has more immigrants than any other country in the world, the declining trend in legal immigration is alarming. The United States faces a demographic challenge due to a rise in America’s aging population, declining fertility rates, and increasing life expectancies. This challenge could be assuaged by immigration. Welcoming immigrants, especially those that are younger and entrepreneurial, can help contribute to the U.S. economy, particularly during the post-COVID-19 recovery.

Immigrant entrepreneurs may even help soften some of the stagnant domestic migration trends among younger U.S. citizens. According to a report released by the Brookings Institute, moves by citizens within the United States, especially by millennials, have hit an all-time low. In other words, Americans aren’t moving from where they live within the country for work. The research suggests that out-of-state moves, which are often a result of the labor market and job-relocation, have declined for most millennials in the 2010 and 2020 decades. Immigrant entrepreneurs, have been responsible for more job creation than their American counterparts, can help with our demographic challenges, especially among the younger generation.

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Conclusion 

President Biden has already implemented some of his campaign promises as executive orders on his first day in office. Actions such as reversing the travel ban on many Muslim-majority countries, preserving the Deferred Actions for Childhood Arrivals program, and deferring the enforced departure for Liberians4 will help undo some of the challenges immigrants faced under the previous administration. President Biden’s team also plans to introduce broad immigration legislation, which if passed, would help create a citizenship pathway for 11 million undocumented individuals currently in the United States. The legislation, the administration claims, would also help clear the employment-based immigrant visa backlogs, reduce lengthy wait-times for foreign workers, and eliminate unnecessary hurdles for employment-based green cards. These legislative proposals, along with many others including increasing the refugee visa cap, may help foster legal immigration pathways for individuals coming to the United States. However, the administration has yet to rescind the outstanding proclamation suspending temporary visas for guest workers, nor does the new bill introduce new visa categories for temporary employment. In many cases, temporary visas such as the H-1B are the first step for thousands of skilled individuals to access permanent residency in the United States.

The Biden administration, along with the new Congress, which has a Democratic majority, could utilize the Congressional Review Act to overturn some of the outstanding and recently passed immigration rules by federal agencies. Congress has 60 legislative days after a rule is finalized to submit a joint resolution of disapproval for any final and interim final rules, as well as some guidance documents and agency actions released by federal agencies. CRA experts have marked August 21st, 2020 as the cutoff date to disapprove any rules and guidance documents. Therefore, interim final rules such as those issued by the Labor Department and Department of Homeland Security altering the H-1B process and prevailing wage levels as well as the new naturalization test issued by U.S. Citizenship and Immigration Services could qualify for dismissal. But the new administration has yet to disclose an action plan to undo some of the harder policy changes that do not fall under the jurisdiction of the CRA, such as the public charge rule.

The Biden administration’s new immigration proposal is a step in the right direction and would provide access to legal citizenship for millions of individuals. It would prevent children of H-1B visa holders from “aging out” and improve access for international graduate students with STEM degrees to stay and work. Some of these actions may help undo America’s image as an unwelcoming place and provide a relatively flexible pathway towards permanent residency for immigrants who come here as students or children. We have yet to see how Congress will act, but regardless, a major reform of our legal immigration system is long overdue.

End Notes:

1 The proclamation suspended entry of all nonimmigrants and their dependents applying for H-1B, H-2B, L, and J visas from outside the United States.
2 Legal immigration to the United States fell 7% from FY 2016 to FY 2018 with the most decline in the Immediate Relatives of U.S. Citizens Category.
3 The actual number of refugees admitted to the United States in FY 2020 was impacted due to COVID-19 and was only around 11,814.
4 This is not an exhaustive list.

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