While the country is fixated on the horrors of (ICE) Immigration and Customs Enforcement agents ripping infants from the arms of migrant parents, two people in the
Trump administration have been quietly but painstakingly plotting a comprehensive assault on legal immigration: Attorney General Jeff Sessions and White House aide Stephen Miller. Both formed a close bond around their shared ultra-restrictionist agenda when Miller served as Sessions' communications director in the Senate. Miller was the brains behind Trump's scheme to take Dreamers hostage to force Congress to enact a 40-plus percent cut in legal immigration. But even before that failed, he and Sessions had started looking for ways to achieve that goal through regulatory means, doing an end run around Congress.
And they seem to be succeeding: A recent Washington Post analysis of State Department data found that the number of people receiving immigrant visas to live in the country is on pace to drop 12 percent in just the first two years of the Trump presidency. Here is how they're doing it.
Erecting Regulatory Barriers to the Asylum Process
Asylum seekers are especially in their crosshairs because Trump himself pledged to deport them without due process. Vox's Dara Lind has obtained the final draft of a Department of Justice memo that calls for treating anyone found between ports of entry as an "illegal immigrant" and denying them asylum. The administration had already started charging migrants picked up between ports on criminal grounds instead of civil ones as had hitherto been the case—never mind that many of these hapless and helpless migrants had no intention of living in the United States illegally. Some of them were lost or misdirected by smugglers (who want to create a diversion for Customs and Border Patrol), or rebuffed by border agents when they tried to present themselves at legit entry points as they are supposed to do. That's why, to date, despite facing criminal charges, they had still been allowed to claim asylum. Apparently even that small mercy will now be rescinded.
The administration knows that a blanket policy akin to an outright ban may run afoul of domestic and international law that requires asylum seekers to at least get a hearing and hence may not withstand legal scrutiny. Therefore, the memo includes a Plan B: It will instruct immigration judges to weigh the circumstances of entry as a major factor in their asylum decisions, making the rejection of their petition a fait accompli. In other words, the administration is gaming asylum laws to deny asylum seekers a fair shot—subverting the law in the name of the "rule of law!"
Showing the Back of the Hand to Refugees
But the administration is not just shutting the door on asylum seekers who land on our shores. It is also turning away refugees petitioning from abroad. Thanks to "extreme vetting," refugee admissions are on track to fall by 75 percent from 2016 levels, according to federal data. The administration has already slashed the annual refugee quota from 110,000 to 45,000; now it won't fill even half of that.
But it's not just asylum seekers and refugees the Sessions-Miller duo is dinging—they are also going after family-based and employment-based immigrants.
Restricting Family-Based Immigration
America implemented a family-based immigration system that gives the immediate family members of Americans and green-card holders priority in order to advance its commitment to family unity. Hence, since 1965 when this system was implemented, about 60 percent of all immigrants every year come through this category. But Trump has been openly hostile to this.
He has barred Americans from sponsoring family members from any of the five Muslim countries listed in his travel ban. In theory, the State Department is supposed to hand waivers from the ban to close family members—spouses and children—on a case-by-case basis. But as Justice Breyer pointed out in his dissent in Trump vs. Hawaii, the travel ban ruling, the administration approved a measly 430 waivers out of 6,555 eligible applicants in the first four months of the ban.
So it is no surprise that WaPo found the number of new arrivals from these countries is on track to decline by a whopping 81 percent. But what is surprising is that virtually all of the top 10 countries that send immigrants America's way, with the possible exception of El Salvador, are set to experience a decline. And around 15 percent fewer immigrant visas were handed to immigrants from African countries. (Interestingly, however, the flow of immigrants from European countries is showing a slight increase.)
How exactly is the administration accomplishing this reduction given that Congress pointedly refused to enact its requested cuts? Basically, by implementing "extreme vetting" for family members as well.
Miller has worked with the State Department to require American consular officers—whom he regards as the "tip of the spear" in pushing his draconian controls—to subject applications to inordinately long scrutiny and slow the approval process to a crawl. The upshot is far fewer visas approved every month.
The administration's excuse for slashing family-based immigration is that this category is not "merit based" so it does not draw the "best and the brightest." That's something of a myth because over 50 percent of immigrants admitted under the family-based and the diversity visa categories—which Republicans are champing at the bit to eliminate—have college degrees, compared to 29 percent of natives.
Shutting Out Skilled Immigrants
But if the administration is so concerned about merit-based immigration, surely it would be opening the doors wide to skilled foreigners, right? Especially when the country has record low unemployment and jobs are going a-begging. A recent Federal Reserve survey found worker shortages in various industries and various skill levels all across the country. The situation is particularly dire in STEM-related industries, where unemployment among Americans is about three percent, and in certain specialized professions—such as computer network architecture—near one percent. In other words, fullest of full employment! So it would stand to reason that the administration should be relaxing things for high-skilled, H-1B visas, especially since every high-skilled immigrant supports about 3.1 American jobs on average.
The administration is applying the same basic strategy of smothering this program in red tape as it has done with asylum seekers and family-based immigrants. In particular, the administration is
- issuing many more "requests for evidence" from employers sponsoring foreign workers. This means that companies have to submit even more paperwork than they currently do to prove to the government that they really need the immigrant's services and couldn't find a qualified American to do the job. Worse, even as it is requiring employers to jump through more hoops, it is denying more H-1B requests. (The policy gamble is that if the government makes the process too fraught and onerous, employers will think twice before even thinking of hiring foreigners.)
- no longer allowing H-1Bs to renew their visas every three years as a matter of routine, which has been the case to date. They are forcing the visa holder and the sponsoring employer to re-file all the paperwork, as if they were applying for the first time. The horrendousness of this cannot be exaggerated. Most H-1Bs aspire to update their visas to green cards. But employment-based green cards are backlogged for decades, especially for Indians and Chinese. So if these folks can't renew their H-1Bs automatically and their green cards are stuck in limbo, they basically have to live in fear of losing their jobs and being thrown out of the country after buying homes, building families, and putting down roots. This is massively disruptive for those already here, of course. But it also has a chilling effect on aspiring high-skilled immigrants. It may not be a coincidence that H-1B applications have dropped two years in a row (although they still vastly exceed the minuscule annual 85,000 annual quota, which Congress, in its infinite wisdom, set with no regard to the actual economic demand).
- significantly tightening the definition of a specialty occupation for which it is legit for companies to hire H-1Bs. For example, no longer might a bachelors in Computer Science be enough for Microsoft to hire a foreigner. A masters—or more—might be required.
- preparing to scale back the Optional Training Program for foreign students that allowed them to stay and work in the country after graduation (12 months for non-STEM students, three years for STEM students), giving them crucial work experience and time to find jobs. Considering how much time and expense foreign students invest to obtain an education in the United States, if this door is shut, they will simply opt for other more hospitable destinations like Canada and Australia. Indeed, the harsh, anti-immigration rhetoric was already turning off foreign students from American universities. Squeezing the OTP program will repel even more.
- scrapping work authorization for the highly qualified spouses of H-1B holders. This will essentially freeze many of them out of the labor market permanently, making America a very unattractive destination for talented married foreigners.
Spurning Foreign Entrepreneurs
If the visa options for high-skilled foreign workers are limited, they are almost non-existent for foreign entrepreneurs. The Obama administration took a small stab at fixing this situation when it passed the International Entrepreneur Rule—the so-called entrepreneur startup visa. This rule allows foreign entrepreneurs who launch businesses in the U.S. to live in the country for a renewable 30-month term, provided they can secure $250,000 in private venture capital funding or $100,000 in public grants. About 3,000 applications were expected under this rule each year. Other advancing countries such as Canada, Australia, the United Kingdom, South Korea, and even communist China, are already offering similar incentives to attract innovative businessman.
But the Trump administration has issued notice to rescind this rule even though it was expected to help create hundreds of thousands of high-quality jobs in Midwestern cities between the coasts, not just in Silicon Valley.
We shouldn't be making legal immigration harder than it already is
For many years now, restrictionists have weaponized the unauthorized immigrant issue and rallied Americans around the notion that those who want to come to America need to do so legally.
But as Reason's 2008 pictorial representation shows this wasn't easy even before Trump. Low-skilled foreigners who don't have blood relatives or spouses in America to sponsor them have no legal options to permanently live and work in the country. Just to obtain temporary work permits such as H-2A and H-2B visas, they—and their employers—have always had to endure the bureaucratic equivalent of waterboarding. (For example, these visas require poor migrants to prove that they have a job or property to return to after their assignment in the United States is completed, basically closing off the American labor market to the people who need it the most. Such Catch-22 rules are the core cause of America's unauthorized "problem.")
But post-Trump, legally immigrating to the U.S. has become infinitely more difficult. Miller and Sessions are subjecting every immigrant in every category—refugees, asylum seekers, family-based, employment-based and entrepreneurs—to the same treatment. What has been listed above by no means exhausts everything the duo has up its sleeve. There is much, much more coming, including a plan to make it difficult for immigrants to upgrade their visa status if they or their American-born family use a whole slew of public services—not welfare, mind you—and even if they pay the same taxes as Americans.
As the Migration Policy Institute puts it, the administration "has initiated several small but well-calibrated actions through regulations, administrative guidelines, and immigration application processing changes" to severely slash overall legal immigration.
Even as Trump is having difficulty ginning up funds for his wall on the southern border, his two minions, with great ingenuity, are erecting a bureaucratic fortress all around the country.