New Trump Immigration Order Does What Congress Rejected In 2018
Donald Trump has issued a proclamation that would block indefinitely immigrants in categories the administration failed to eliminate in a bill before the U.S. Senate in February 2018. Economists consider the justification for the president’s action devoid of serious analysis and unconvincing. U.S. citizens will no longer be able to obtain immigrant visas for a parent, adult child or sibling, and the proclamation contains a lit fuse in the form of a 30-day review of H-1B and other temporary visas. In effect, the Trump administration has used the COVID-19 crisis to rewrite immigration law without passing a bill through Congress.
The presidential proclamation contains nearly identical provisions on legal immigration to those of a White House-designed bill the U.S. Senate rejected on February 15, 2018, which it voted down on a “cloture motion” 60-39.
The legislation, like the proclamation issued on April 22, 2020, would have eliminated the ability of U.S. citizens to sponsor a parent, as well as adult children and siblings (the family preference categories). It also ended the Diversity Visa lottery. (See page S1036 here.) The U.S. unemployment rate in February 2018 was only 4.1% when the administration attempted to stop immigrants from entering the United States in the same categories as were included in the April 22, 2020, presidential proclamation.
Originally, based on early discussions, the 2018 legislation was to represent a compromise between Democrats and Donald Trump to provide permanent legal protection for individuals brought to America as children, particularly those granted Deferred Action for Childhood Arrivals (DACA). However, press reports indicate White House adviser Stephen Miller intervened to ensure any administration-supported bill contained a “wish list” of immigration restrictions that Democrats would be unlikely to support. Miller is credited with drafting the new proclamation.
“Congress considered and rejected legislation that would have cut the same family-based visa categories that President Trump targets in the executive order,” said Lynden Melmed, a partner at Berry Appleman & Leiden and former chief counsel for USCIS, in an interview.
The proclamation states, “The entry into the United States of aliens as immigrants is hereby suspended and limited subject to section 2 of this proclamation.
“Sec. 2. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:
“(i) are outside the United States on the effective date of this proclamation;
“(ii) do not have an immigrant visa that is valid on the effective date of this proclamation; and
“(iii) do not have an official travel document other than a visa . . . that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.”
With a few exceptions, this means anyone who needs to obtain an immigrant visa (for permanent residence) outside the United States will be blocked from doing so. That means other than spouses and children (under 21) of U.S. citizens, family immigration to the United States is eliminated while the order remains in effect. That includes the parents, adult children and siblings of U.S. citizens but also the spouses and children of lawful permanent residents.
Employment-based immigrants who cannot adjust their status inside the United States will be prohibited from obtaining permanent residence, unless they are in the EB-5 Immigrant Investor category or “a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak . . . and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien.”
Also exempted from the ban are prospective adoptees, “any alien whose entry would further important U.S. law enforcement objectives,” members of the U.S. Armed Forces, Iraqi and Afghan translators coming on Special Immigrant Visas, aliens considered in the “national interest,” and spouses and unmarried children under 21 of those allowed into the country as immigrants.
While the presidential proclamation lists an end date of 60 days, in reality, the measure is likely to continue so long as Donald Trump is president. “This proclamation shall expire 60 days from its effective date and may be continued as necessary,” states the order. “Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.”
What is the immediate impact of the president’s order? “The near-term impact is minimal because immigrant visa processing is already paused,” said Lynden Melmed. “But looking ahead, it signals that the administration is doubling down on its effort to reduce overall immigration levels.”
The proclamation does not affect H-1B visa holders or foreign nationals in other temporary visa categories. However, a follow-on order could bring new restrictions, as stated in Section 6: “Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
What will happen after the 30 days is unclear. “A regulation to overhaul the H-1B visa category has to be near the top of the list, but they will struggle with the economic analysis and finding a way to make it more difficult to obtain a visa without hampering economic recovery or public health,” said Melmed.
Still, based on other immigration measures and trade policies viewed by economists as harmful, simply because an action represents poor policy is no guarantee it will not be enacted. “The 30-day review allows the administration to say it’s doing something while providing the opportunity to dominate the news cycle again in 30 days if they think they need to,” said William Stock of Klasko Immigration Law Partners in an interview.
Will the proclamation survive judicial scrutiny? “The proclamation is carefully drafted as a broad but temporary use of the president’s authority to ‘suspend entry’ of foreign nationals when deemed harmful to the interests of the United States,” said Stock. He notes it is modeled closely on the suspension of entry proclamation that the Supreme Court held to be a valid use of the president’s authority under Section 212(f) of the Immigration and Nationality Act in Hawaii v. Trump (i.e., the “Muslim travel ban” case). Providing exceptions and a discretionary mechanism for consular officers to issue immigrant visas “in the national interest” were highlighted by the Supreme Court when it upheld the third version of the travel ban.
“The ban will certainly be challenged, however, as too broad of an assertion of the authority granted the president under Section 212(f),” said Stock. “I predict that early courts to hear challenges will strike it down, but that higher courts may step in and allow the policy to go into effect while it is being litigated, as we saw recently with the administration’s new public charge rule.”
Economic research finds the premise of the executive order – that reducing legal immigration would lower the U.S. unemployment rate – is flawed. “Having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group,” according to a National Foundation for American Policy study by Madeline Zavodny, an economics professor at the University of North Florida (UNF) in Jacksonville and formerly an economist at the Federal Reserve Bank of Atlanta. (Emphasis added.) “Immigrants may boost consumer demand, start their own businesses, and reduce offshoring . . . of manual-labor intensive jobs in the U.S.”
“The President’s immigration ban is backed by zero analysis of its effects by recognized labor economists,” noted economist Michael Clemens of the Center for Global Development. “No research estimating its short-term effects on employment. No research estimating its long-term effects on the American economy.” Clemens called it, “The largest immigration policy change in U.S. history, carried out by one-man diktat, explicitly to affect the economy – without releasing a single serious analysis of what those economic effects might be.”
Mark Regets, a labor economist and senior fellow at the National Foundation for American Policy, found it surprising the executive order makes the ability of green card holders to change jobs or occupations sound sinister because the government can’t control it. “Interesting that they make into a negative one of the ways immigrants make the economy more flexible and agile,” said Regets.
“There’s not much of a virus-related justification in the text of Trump’s order,” said Regets. “Based upon the recommendation of the Secretary of Homeland Security it is basically set to continue forever.”
Published: 23 April 2020