News coverage of the Trump administration’s immigration plan has focused on the introduction of a point system to the U.S. legal immigration system. However, a closer look and new details from the White House reveal major immigration policy changes many have overlooked. Most important is a set of policies that will not change at all, despite the plan’s focus on “high-skilled” immigrants.
On May 16, 2019, Donald Trump discussed his proposal for a new legal immigration system in a White House speech. The plan, which has yet to be turned into legislation, would replace all current family and employment-based immigration preference categories with a system that awards points based primarily on age and education.
Under current law, a U.S. citizen may sponsor for immigration a spouse, parent, minor or adult child or a sibling. Lawful permanent residents (green card holders) can sponsor a spouse, minor child or unmarried adult child. Employers can sponsor individual employees for immigration, often after undergoing labor certification (i.e., showing no U.S. workers were available for the position). Certain individuals may qualify to self-petition in the employment-based preferences without an employer sponsor. Most employer-sponsored immigrants are already working in the United States in H-1B temporary status.
The Trump speech and an additional document from the White House reveal and confirm four important policies.
The Administration Intends To Eliminate the Applications of More Than 4 Million People Waiting in the Current Family and Employment Backlogs. (See article here.) “Immigrants in the green card backlog would lose their place in line and would need to apply under the new point-based system,” according to an analysis from Berry Appleman & Leiden. “The White House has said people who are currently waiting for green cards will receive additional points, but no specifics have been released.” Donald Trump confirmed this in his May 16, 2019, speech, stating, “We will replace the existing green card categories with a new visa, the Build America visa.”
Individuals whose applications are eliminated must compete with each other and anyone else in the world who wants to apply in a given year for a green card in the United States, as discussed here. If 2 million or 3 million people apply in a year under the point system, those whose applications would be eliminated may not garner enough “points” to receive permanent residence under the new law, if the plan is approved by Congress. Needless to say, it is controversial to tell millions of people who have waited years in immigration backlogs that they have wasted their time.
Individuals Must Pass English Language and Civics Exams Before Becoming Permanent Residents. Under Section 312 of the Immigration and Nationality Act, to become a U.S. citizen, after living as a permanent resident for at least five years (three years for spouses of U.S. citizens), a person must demonstrate “1) an understanding of the English language, including an ability to read, write and speak words in ordinary usage . . . [and] 2) a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.”
The administration’s proposal takes a different approach. A document released after the Trump speech states, “Before being able to apply, green card applicants must pass a U.S. civics exam and to demonstrate English proficiency.”
This new requirement would throw a wild card into the immigration process and, critics would note, seems designed to favor people from English-speaking countries at the expense of people from Latin America. And there may be other objections. “This proposal cheapens the value of citizenship,” said attorney Greg Siskind, a founding partner of Siskind Susser, in an interview. “If you require the English/civics knowledge just to get a green card and all you have left for citizenship is proving you're not a criminal and have been in the U.S. for enough years, achieving that status is no longer really special.” Siskind thinks the requirement is a method to admit fewer immigrants to the United States. It remains unclear whether spouses of the principal applicants will need to pass an English and civics test as well.
From a practical business perspective, this new requirement would likely make it much more difficult to recruit someone who exhibits great talent and promise in a field but currently has weak English language skills. The requirement would remove from employers the ability to judge whether English language ability is important for the job. But the entire proposal could be read as indifferent to the needs of employers, since the plan ends employer sponsorship and companies are unlikely to know when the bill passes which, if any, current or future employees will gain enough points to remain with a business long-term in the United States.
A Lawful Permanent Resident Would No Longer Be Allowed To Sponsor a Spouse. Given that workers are human beings with emotions and personal lives, eliminating the ability of lawful permanent residents to sponsor a spouse (and not allowing U.S. citizens to sponsor their parents, under the proposal) would seem to many cruel and short-sighted. Under the administration’s plan if a single person gains permanent residence and then gets married, he or she cannot sponsor a spouse for immigration until after becoming a U.S. citizen. That could mean a couple being separated for 5 to 7 years, a major disincentive for highly skilled people to immigrate to or remain in the United States.
The Administration’s Crackdown on High-Skilled Immigration, Particularly H-1B Visa Holders and International Students, Will Continue. It seems ironic for the president to announce a proposal to attract more high-skilled foreign nationals to America when the focus of U.S. Citizenship and Immigration Services under the Trump administration has been to admit as few highly skilled people as possible. “Denial rates for new H-1B petitions have increased significantly, rising from 6% in FY 2015 to 32% in the first quarter of FY 2019” under the Trump administration, according to a National Foundation for American Policy (NFAP) analysis.
During his May 16, 2019, speech, Donald Trump said, “Companies are moving offices to other countries because our immigration rules prevent them from retaining highly skilled and even, if I might, totally brilliant people.” But the reason companies are moving to other countries is the Trump administration’s restrictive policies on H-1B temporary visas, which the president did not disavow in his speech. Adding more employment-based green cards and eliminating the per-country limit would help but it is primarily the low annual level of H-1B visas and administration policies that are driving more companies to Canada and elsewhere.
In its just announced Spring 2019 regulatory agenda, the administration stated it would soon propose to eliminate the ability of the spouses of H-1B visa holders to work and tighten the rules still further on who qualifies for an H-1B visa. The administration also plans to propose regulations to make it more difficult for international students to stay in the United States and complete their programs. Higher fees for international students and employers of H-1B visa holders are also coming. If given a choice, rather than a new legislative plan, companies would prefer the administration simply stop doing what it has been doing on business immigration.
The White House immigration plan proposes to continue preventing many high-skilled foreign nationals from working in the United States on H-1B visas, eliminate the immigration applications of more than 4 million people waiting in family and employment backlogs, introduce extraneous green card requirements for workers and tell professionals who gain permanent residence they may need to wait 5 to 7 years before their spouse can live with them in America.
The White House argues, “A random unfair entry process hurts everyone.” Some may look at the president’s plan and agree.
