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Visa changes face tougher road in immigration overhaul efforts

Biden's bill will address legal status for undocumented residents but likely avoid revamping H-1B and other work-based visa programs

Biden's immigration bill would create an eight-year pathway to citizenship for 11 million undocumented immigrants.
Biden's immigration bill would create an eight-year pathway to citizenship for 11 million undocumented immigrants. (Tanvi Misra/CQ Roll Call file photo)

When lawmakers formally unveil, possibly later this week, the comprehensive immigration bill that President Joe Biden outlined and promised on his first day in office, the measure will include provisions to create a path to citizenship for undocumented immigrants, particularly essential workers.

But experts say the new administration is likely to hold off on turning to the politically tougher task of revamping temporary visa programs.

Theresa Cardinal Brown, immigration director at the Bipartisan Policy Center and a former Department of Homeland Security official, said the administration doesn’t appear to be “actively negotiating” congressional changes to employment-based immigration.

“There’s a lot of sort of, ‘we have to see,’ but initial signals are that this is not a significant priority for this administration,” she said.

Former President Donald Trump grabbed headlines for policies aimed at curbing asylum at the U.S.-Mexico border, from family separation to the so-called Remain in Mexico policy.

However, Trump also issued a number of changes to the business immigration system, the process by which foreign-born individuals can move to the U.S., or stay after college graduation, based on job offers. Beginning with Trump’s “Buy American, Hire American” executive order signed shortly after he took office, the administration rolled out a slew of policies aimed at making American companies think twice before hiring a foreign-born candidate over an American one.

The effects of the prior administration’s policies were felt by the business community and high-skilled visa hopefuls alike.

In fiscal years 2018 and 2019, U.S. Citizenship and Immigration Services denied nearly a quarter of requests for H-1B visas, generally reserved for foreign-born professionals wth college degrees, according to a recent report compiled by the nonpartisan National Foundation for American Policy. For comparison, H-1B denial rates during the Obama administration generally ranged from 5 percent to 10 percent.

Biden has been quick to start to unravel Trump’s asylum restrictions, but he’s been slower to dismantle his predecessor’s high-skilled visa limits. His administration also has been less forthcoming about plans to reverse Trump’s visa restrictions.

Biden’s outline of his proposed bill touched on changes to help foreign-born science, technology engineering and math grads stay in the U.S. after graduation and to prevent children of H-1B workers from “aging out” while their parents wait for green cards, but it focused more on the border and protections for undocumented immigrants already in the country. For example, the bill would create an eight-year pathway to citizenship for 11 million undocumented immigrants in the U.S. and expand refugee programs for Central Americans.

“There’s not a lot in the Biden bill, from what we’ve seen so far, that is really seeking to address the business concerns with the legal immigration system,” said Casey Christine Higgins, who previously worked on immigration issues for Republican Paul Ryan when he was House speaker. “There’s not a lot that addresses future flow.”

Labor divides

The apparent de-prioritization of business-related immigration doesn’t surprise those closely following the new administration’s views on immigration and labor.

In Biden’s campaign platform, he indicated support for some of Trump’s policies to prioritize U.S. workers, such as requiring employers to show that there were no available American citizens for the job.

Biden also has a strong record as a pro-union politician, as does his choice for Labor secretary, Boston Mayor Martin J. Walsh.

“Biden is a longtime union guy, and unions have always been skeptical of temporary worker programs,” said Brown.

Beyond Biden’s personal views on business immigration, the topic is one that doesn’t divide cleanly on party lines, instead splintering the Democratic Party’s pro-union factions and gathering lawmaker support based on their location.

As a result, experts say that piecemeal immigration overhaul focusing on immigration through the lens of the coronavirus pandemic  — such as increasing visas for foreign doctors in underserved areas of the U.S. or immigration benefits for essential workers — may be more politically viable than one massive bill that needs 60 votes in the Senate.

“If you talk with someone on the left and you say ‘comprehensive,’ the conversation’s over,” said Doug Rand, a former Obama administration official who now runs Boundless Immigration, a tech company that helps immigrants apply for green cards and citizenship.

“Because comprehensive in the mind of many is shorthand for ‘we trade legalization for a massive border security buildup.’ And no one on the left wants to keep militarizing the border,” he said.

Smaller immigration bills that gained traction in past years may preview possible legislative successes this session.

The House in June 2019 passed legislation to protect Dreamers and other undocumented immigrants with temporary immigration protections, but the bill stalled in the Senate. Sens. Richard J. Durbin, D-Ill., and Lindsey Graham, R-S.C., reintroduced the measure (S 264) earlier this month to provide a path to citizenship for Dreamers.

Graham said at the time he did not believe the bill “will pass and be signed into law as a stand-alone measure,” but instead serve as a “starting point for us to find bipartisan breakthroughs providing relief to the Dreamers.”

Changes to the H-2A visa, which allows employers to hire migrant workers for seasonal jobs, and to the green card processes could also be on the table.

For instance, in December 2019, the House passed with 34 Republican votes a bill that would create a pathway to permanent residency for undocumented farm workers in exchange for increased usage of E-Verify, the electronic system used to verify an employee’s U.S. work authorization.

Last year, both chambers passed legislation that would have eliminated per-country caps on green cards that have kept many applicants from populous countries like India waiting decades for a green card, while applicants from less populous countries can jump to the front of the line.

However, after the Senate changed the bill, the two chambers never resolved differences between the two versions.

Green card overhaul may be more viable than H-1B visa overhaul, said Rand, noting that green cards were also a priority for the Obama administration.

While unions have tended to oppose changes that would increase or ease the H-1B visa process, warning that the visa could depress wages for U.S. workers, they are generally in favor of increasing the number of green cards, which gives immigrants more job stability and bargaining power. Proposals to increase the numbers of green cards annually, rather than reallocating them, have been sticking points for Republicans in the past, however.

“It’s a no-brainer for a Democratic president,” Rand said. “Everyone loves green cards. Everyone should. We should have more Americans.”

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