NATIONWIDE: An Introduction to Immigration
An Introduction to U.S. Immigration
Written by: Delisa Bressler, Partner; Avalyn Langemeier, Partner; Foster LLP
Immigration laws have evolved over time, with changing attitudes, government practice memos and executive orders, rather than laws. Most can agree that our immigration system is largely considered to be outdated, malfunctioning and ill-fitting. However, for decades Congress has failed to comprehensively address its shortcomings. Any overview must acknowledge these facts, as well as our role as advocates for clients trying to immigrate under a complex, highly regulatory and largely unforgiving body of law that is the U.S. immigration system.
Current State of the U.S. Immigration System
Congress last passed comprehensive immigration legislation in 1965, when the U.S. economy and population were roughly half what they are in 2021, and U.S. birth rates were significantly higher. Employers today continue to complain of a dearth of U.S. STEM graduates to work in STEM fields. Employers also complain that they need talent, or in some cases unskilled or seasonal workers, to fill jobs and remain competitive. Foreign nationals graduating from U.S. institutions of higher education often cannot fill the gap because the annual H-1B “specialty occupation” temporary work visa quota is insufficient to meet economic demand. Foreign nationals also can’t fill the gap because of the limited number of visas available to them.
The H-1B nonimmigrant category was established for workers in positions which were generally professional in nature, and for which a bachelor’s degree or higher in a specific academic specialty was normally the minimum educational requirement for entry into the profession in the U.S. Once a student “wins the lottery” for one of 85,000 H-1B numbers, the student is often able to change from F-1 student status to H-1B temporary worker status without leaving the country. H-1B status enables them to work with their H-1B petitioning employer and provides them a platform for future pursuit of U.S. lawful permanent residency in positions for which sponsoring employers are unable to recruit sufficient U.S. workers. Like the H-1B visa quota, the annual immigrant quotas applicable for the permanent residency process are also insufficient. Those same students, who by sheer luck secured an H-1B number, will therefore face a long road to permanent residency. Applicants born in India have the longest wait, commonly up to a decade or more.
The U.S. also faces a humanitarian dilemma at the U.S.-Mexico border as refugees, economic and otherwise, continue to appear and seek asylum under a legal system that doesn’t recognize economic refugees. Our legal system recognizes refugees and asylum for persons who have suffered or fear persecution based on only five grounds: political opinion, race, religion, nationality and membership in a particular social group. If there were ever a time for Congress to act, yesterday was that time.
The Roller Coaster of Executive Authority in Immigration Law
Although Congress has not passed comprehensive immigration reform, immigration is not a stagnant practice area. Much like the weather, immigration law is always subject to change, which can be quick and often. In this administrative law practice area, the Department of Homeland Security and its constituent agencies effect change principally through the rulemaking process. In recent years, presidents have made dramatic policy changes by Presidential Proclamations. While Congress is said to hold plenary authority over U.S. immigration, the Obama and Trump administrations used their executive authority over immigration.
Under the Obama Administration, the Deferred Action for Childhood Arrivals (DACA) program was created by executive order for “Dreamers” who entered the U.S. unlawfully as children. Under DACA, the government defers their removal (“deportation”) and issues them Employment Authorization Documents (EADs) which may be used to obtain a Social Security Number and employment. The DACA program continues today despite the Trump Administration’s attempts to end it as the program was ultimately upheld by the U.S. Supreme Court.
With the Trump Administration, the U.S. Citizenship & Immigration Services (USCIS), tasked to supply services as shown by its own name, removed from its mission statement any reference to “service,” declared itself an additional enforcement agency, and refused to consider fee-paying petitioners and benefits applicants as “customers.” Executive orders were issued to limit legal immigration and the adjudication standards were changed without rulemaking through practice memos. The Trump Administration also reduced refugee quotas to extreme lows, built miles of wall along the southern border and limited prosecutorial discretion in removal cases. The Administration also famously issued its “Muslim ban” which effectively ended most immigration from certain predominantly Muslim countries.
The Biden Administration has begun to dismantle many of the obstacles the Trump Administration imposed. Under President Biden, USCIS has rescinded some Trump-era memos and issued new ones, has rescinded the Muslim ban, halted construction on the border wall, saying the wall is ineffective, restored the principle of deference to prior agency decisions and withdrawn or delayed several new or proposed rules that would have significantly affected employment-based immigration.
Permanent Residence (“Green Card”) Options
The alphabet of temporary visa options allows foreign nationals to enter and remain in the U.S. only for a limited time and limited purpose. The type of visa and duration of stay depend on the purpose of the temporary stay. Those who wish to immigrate to the U.S. permanently may pursue permanent residency (a “green card”) under one or more immigrant visa categories. Most immigrant options require a test of the labor market to assure there are not sufficient U.S. workers available to fill a permanent job opportunity based on the minimum requirements for that position. Other options fall under categories created for individuals of extraordinary ability, outstanding researchers or professors, multinational managers or executives, professionals seeking a national interest waiver or investors looking to immigrate through a qualifying investment in the U.S.
Because immigration is subject to annual quotas based on country of birth, countries with high rates of immigration to the U.S., such as India and China, typically experience lengthy waits for the opportunity to file their “green card” applications and be welcomed as lawful permanent U.S. residents. Because of the lengthy timeframes involved, employers should begin the permanent residence process on behalf of key employees as soon as they reach the conclusion that the employee is a long-term asset in the U.S.
Looking Ahead
As the pandemic wanes in the U.S. and abroad and employers continue to need workers, immigration lawyers will be needed more than ever to help employers meet their business needs and help individuals too. Despite the prior difficulties under the Trump Administration, U.S. immigration laws have remained a viable way for employers to meet critical needs and for families to seek reunification. Under the Biden Administration, Congressional efforts at comprehensive immigration reform could progress and yield new visa options for foreign nationals, including those who are entrepreneurs and can add jobs to the U.S. economy.
Until then, immigration attorneys will continue to assist employers and individuals with temporary visas such as B-visitor and F-1 students; temporary work visas like H-1B, L-1 intracompany transferee, E-investor and trader, TN, and O-1 extraordinary ability; family reunification; waivers; lawful permanent residence (“green cards”); and immigration compliance. Immigration attorneys will also continue to assist individuals with permanent residence. Immigration attorneys will be challenged in the coming year to serve individuals whose immigration matters were unavoidably placed on hold during the pandemic. Those clients will be eager to move forward quickly in the coming year, and immigration attorneys are just as eager to serve.