Big Changes Ahead for the U.S. Immigration System?


2017 slowed things down; 2018 may take things away.

Jan 8, 2018


It’s no secret that the past year brought major changes to U.S. immigration policy. Anyone who reads the news is probably familiar with the travel ban on nationals from eight mostly majority-Muslim countries, the major reduction in refugee admissions, the increase in deportation proceedings, the controversy over “sanctuary cities,” and the looming termination of programs to protect undocumented immigrants brought to the United States as children (DACA) and nationals of countries like Haiti and El Salvador afflicted by war and natural disasters (TPS).
 
But these aren’t the only notable immigration developments in 2017. Somewhat under the radar, the current administration has made a number of consequential changes throughout the government’s complex system of temporary visas, green cards, work permits, and citizenship—together, the “legal immigration system.”

Last year’s changes to the legal immigration system have affected hundreds of thousands of people. The administration’s known plans for the year ahead could affect millions—and not only temporary workers and tourists, but also permanent residents traditionally on a path to U.S. citizenship. While 2017 introduced some new hurdles for those navigating the legal immigration system, 2018 could see the outright exclusion of large categories of people.

Since it’s often difficult to distinguish rumors from reality, here is a rundown of changes that are Done (in 2017), Doable (in 2018), and Doubtful (indefinitely).

Done: Immigration Changes Executed in 2017

More red tape for H-1Bs and other temporary workers:
Immigration lawyers have reported “exponentially more” required paperwork from U.S. Citizenship and Immigration Services (USCIS) before the agency will grant H-1B visas for skilled workers. These official requests for evidence (“RFEs”) compel employers to provide extra justification for the wages they plan to pay their entry-level H-1B workers, especially computer programmers. Recent USCIS data confirms that H-1B approval rates are down, and nearly half are now challenged with RFEs. Meanwhile, in October 2017, USCIS reversed the longstanding “burden of proof” for extensions of H-1Bs and other temporary work visas, effectively requiring the same level of documentation as in the original application—along with the same or increased potential for a denial or RFE. Finally, USCIS is also reportedly denying travel permits for temporary workers who apply for green cards, which impedes any international travel for 3-5 months.

Impact: Nearly 200,000 applications for the H-1B visa program were filed last year, to fill 85,000 annual slots. Based on the most recent USCIS data, there are about 250,000 H-1B extension applications each year.

New interview requirement for workers seeking green cards:
Since October 2017, anyone applying for an employment-based green card has been required to attend an in-person interview with USCIS, as have family members of refugees and asylees who are applying for a green card from within the United States. For the past decade or so, most of these applicants had been automatically exempted from the interview requirement.

Impact: This change affects the roughly 122,000 people who move from a temporary employment-based visa to a green card every year, and the roughly 46,000 people who apply for a green card based on their family member’s refugee or asylee status. There may also be wider impacts if the extra workload on USCIS field offices leads to delays in other immigration processes.

New hurdle for elderly immigrants seeking U.S. citizenship:
Most applicants for U.S. citizenship (technically called “naturalization”) have always been required to provide fingerprints and photos (“biometrics”) so that USCIS can conduct background and security checks. There was a longstanding exemption for applicants aged 75 and older — until July 2017, when USCIS announced that the biometrics requirement (and its $85 fee) will now apply to nearly everyone seeking U.S. citizenship, regardless of age. There are still exemptions on some medical grounds, though, as well as accommodations for applicants who need a home-based fingerprint appointment.

Impact: In 2016, immigrants above the age of 65 comprised over 9% of more than 750,000 newly naturalized citizens. (The government only publishes data on this and younger age cohorts.)

Broadening the presumption of visa fraud:
In September 2017, the U.S. Department of State updated its definition of what constitutes “willful misrepresentation” for people who visit the United States on temporary visa. Under the new guidelines, visa revocation may be triggered by a range of activities if they occur within the first 90 days of entry into the United States (rather than 30 days under previous policy): marriage to a U.S. citizen or green card holder, filing an application for permanent residency (a “green card”), employment without a work permit, or study without a student visa.

Impact: It’s difficult to estimate the size of the directly affected population, but last year over 300,000 foreign-born spouses of U.S. citizens applied for green cards from within the United States.

Growing wait times:
Routine applications for travel or work permits used to take USCIS about three months to process, but are now reportedly taking five months or more. A recent internal watchdog report, surveying a wider range of application categories, concluded that “adjudication delays, coupled with the agency’s 1.5 million case backlog, reflect that USCIS is currently unable to meet its processing time goals, and unlikely to do so in the near future.” While these delays have been growing for years, the trajectory seems unlikely to reverse any time soon.

Impact: Last year USCIS received over 400,000 travel permit applications and over 2,300,000 work permit applications.

Doable: Immigration Changes Anticipated in 2018

Increased denial of green card applications and deportation of permanent residents?
For over a century, U.S. immigration law has followed the principle that immigrants should not be admitted to the United States if they are likely to become a “public charge.” Longstanding government policy has defined “public charge” in such a way that permanent resident status (a “green card”) would be jeopardized by receiving cash benefits such as welfare, but not by receiving some non-cash benefits like housing vouchers and food stamps. In practice, green card applicants must demonstrate that they have the financial resources to stay off of welfare, and green card recipients are rarely deported on “public charge” grounds. The current administration plans to change this standard to “heighten screening and vetting,” which would presumably increase the number of people denied green cards or deported based on actual (or “likely”) receipt of public benefits.

Status: The Department of Homeland Security (DHS) has officially stated its intention to issue this regulation, which would typically take several months or even over a year to enact. In the meantime, it is unclear whether DHS could issue non-regulatory “field guidance” that would take effect much sooner.

Impact: Based on the most recent government data, there are well over 13 million lawful permanent residents in the United States, with nearly 1.6 million green cards issued in 2016.

Denying H-1B extensions for green card hopefuls?

DHS typically grants extensions of H-1B temporary work visas beyond the usual six-year limit, as long as the worker is in the process of applying for a green card—a wait that can take years or even decades, due to longstanding green card backlogs. These extensions were authorized by Congress in 2002, but DHS is reportedly considering the option to stop issuing them (though the statutory authority is unclear). This could cause major disruptions for workers who are counting on visa extensions to stay in the United States while awaiting their green cards, and for the employers who serve as green card sponsors.

Status: Rumored deliberations, not official policy; such an action would probably require DHS to issue a new regulation, which can take months or over a year to enact. (Update: The administration backed off the most aggressive version of this proposal soon after it was leaked, but is still far from finished with implementing still-unspecified H-1B program changes that were initiated under a previous White House executive order.)

Impact: Over 1 million H-1B workers and their family members may be currently stuck in the green card backlogs, which are particularly acute for Indian and Chinese nationals.

Ending work permits for H-1B spouses?
Skilled workers with H-1B visas are authorized to work in the United States, but until 2015, their spouses (holding “H-4” visas) were not allowed to obtain their own work permits. That’s when a new regulation made it possible for these spouses to work, during the years-long wait for their families to obtain green cards. In 2018, DHS plans to eliminate this policy. Although existing work permits might be allowed to continue until expiration, new work permits would not be issued to spouses of H-1B workers.

Status: DHS has stated its intent to publish a proposed regulatory change in February 2018, with a final enacted regulation expected this summer.

Impact: Based on the latest government data, over 100,000 work permit approvals have been granted to H-4 spouses.

Cuts to au pair and summer work visas?
The current administration is reportedly considering “major reductions” for five subcategories of the J-1 cultural exchange visa, including the program for au pairs who provide child care for U.S. families, as well as the summer work-travel program. Cuts to J-1 visas for university students are reportedly not under consideration, however.

Status: Rumored deliberations, not official policy; the State Department has not yet taken action.

Impact: The J-1 summer work-travel program currently allows over 100,000 foreign students to work in the United States each year, as well as over 19,000 au pairs.

Redesigning the H-1B program?
The H-1B visa is the primary pathway for skilled professionals to work in the United States. The number of visas is capped by law at 85,000 per year, and demand tends to dramatically exceed supply: in recent years there have been well over 200,000 H-1B applications, which USCIS allocates to employers based on a lottery system. DHS plans to issue two new regulations intended to reallocate H-1B visas to the “most-skilled or highest-paid” workers, including unspecified changes to the lottery process, as well as higher wage and skill requirements.

Status: DHS has officially stated its intention to issue these regulations, which would typically take several months or even over a year to enact.

Impact: While the number of new H-1B visas is currently capped by Congress at 85,000 per year, the total population of H-1B workers in the United States may be nearly 500,000, many of whom will apply for extensions.

Scaling back opportunities for foreign students?

Most foreign students who graduate from a U.S. university are eligible for 12 months of “Optional Practical Training” (OPT)—essentially on-the-job training while staying on their F-1 student visa. The George W. Bush administration created an extra extension of OPT for graduates with science, technology, engineering, and math (STEM) degrees, and the Obama administration made some additional changes, so that now STEM majors can qualify for a total of up to three years of on-the-job training after graduating. The current administration plans to change this program with the goals of “improv[ing] protections of U.S. workers” and “reduc[ing] fraud and abuse.” Also in the works are country-specific restrictions on foreign STEM students, and across-the-board fee hikes for foreign students and sponsoring schools.

Status: DHS has officially stated its intention to issue regulations on student visa fees and Optional Practical Training for STEM students, which would typically take several months or even over a year to enact. Restrictions on the entry of foreign STEM students from certain designated countries could potentially be enacted without new regulations.

Impact: Last year, over 33,000 students participated in the the STEM Optional Practical Training program, and there are an estimated 770,000 foreign students in the United States overall.

Uncertainty for the International Entrepreneur Rule?

International Entrepreneurs
Immigrant entrepreneurs (left to right): Elon Musk, Arianna Huffington, Sergey Brin, Vinod Khosla, and Phil Libin

Toward the end of 2017, a federal judge ordered the immediate implementation of the International Entrepreneur Rule, a previously delayed policy that would make it easier for foreign-born entrepreneurs to start and grow companies in the United States. USCIS soon announced that it is now accepting applications from entrepreneurs—but that the administration still plans to rescind the International Entrepreneur Rule later this year.

Status: The administration’s official plan is to end this program, a process that would typically take several months to complete. In the meantime, however, entrepreneurs may submit applications for an initial 30-month period to stay in the United States.

Impact: DHS previously estimated an eligible population of around 3,000 entrepreneurs each year.

Increased restrictions on travel and tourism?
The Visa Waiver Program currently allows nationals of 38 countries (mostly in Europe) to visit the United States for up to 90 days without a visa. DHS recently announced that it will apply new eligibility requirements to these countries, including certain counterterrorism cooperation measures. DHS will also require participating countries to undertake public education to dissuade visitors from “overstaying” and becoming undocumented immigrants, if more than 2% of their visitors overstay (currently true of Greece, Hungary, Portugal, and San Marino).

Status: This policy is effective immediately, but the longer-term consequences are difficult to predict; under the new requirements, some countries may ultimately be dropped from the Visa Waiver Program or see other restrictions—presumably with reciprocal effects on American travelers to those countries.

Impact: Around 20 million people visit the United States each year through the Visa Waiver Program.

Doubtful: Immigration Changes Unlikely in 2018

When Pigs Fly

What all of the above immigration actions have in common is that they don’t require Congress to pass any new laws. In high school civics terms, the Executive Branch believes it can make these moves without any new lawmaking from the Legislative Branch. (That is, unless the Judicial Branch ultimately disagrees; a number of lawsuits have challenged the authority of federal agencies to take various immigration actions on their own.)

So here is a quick guide for interpreting immigration policy news in the year ahead:

  • If it’s a federal agency announcing a new action, take it seriously.
  • If it’s a press conference about a bill in Congress, take it with a grain of salt.

Most any new immigration laws will require 60 votes to pass the Senate, which in turn requires bipartisan cooperation, which is vanishingly unlikely this year. (One possible exception is a bipartisan deal to replace DACA with enduring protections for Dreamers, in exchange for enhanced border security measures. The stakes are high and the clock is ticking.)

While other immigration proposals will continue to grab headlines, it’s an open secret that they’re going nowhere in Congress. Exhibit A is the RAISE Act, a bill that would cut legal immigration in half over ten years, including the elimination of extended-family green cards and the diversity visa lottery. This proposal has virtually no support among Democratic lawmakers and less-than-uniform support among Republicans, so for the foreseeable future it’s just noise.

Even immigration bills with strong bipartisan support—like measures to impose tighter H-1B requirements on outsourcing companies, say, or to provide relief for immigrants stuck in the green card backlog—are unlikely to get done this year (as they have failed to get done in multiple years past). That’s partly because Congress only has time to pass a tiny fraction of the bills introduced in any given year, and partly because immigration bills are especially susceptible to inertia. (“I’ll only support your immigration bill if you support my completely unrelated immigration bill.”)

Meanwhile, the past year’s executive actions are already reshaping the legal immigration system, and even more consequential changes are in the works.


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