What is a “Merit-Based Immigration System” under this Administration?

An administration spokesperson stated last week that the President was preparing something big on immigration reform – that he supported an executive order and a bill to create a “merit-based immigration system.”

This begs the question of what aspects of immigration the President deems meritorious. He stated that he intended by executive order to put DACA persons on a “road to citizenship.” This is odd considering that only a few weeks ago, his administration was before the Supreme Court arguing that DACA was unconstitutional (they lost). He has also turned down deals in the past to legislate DACA benefits in exchange for funding for his “wall.” After the loss before the Supreme Court, he vowed still to end DACA and try again. Now, apparently, he wants them to be citizens?!

It cannot be refugees and asylees that he thinks have merit in our system. The number of admissions as refugees has been dramatically reduced in this administration (from almost 100,000 a year to less than 18,000). And now, refugee admissions are currently completely suspended due to the pandemic. The administration has also been hammering away at asylum law and procedure to do the same. In asylum law, a number of inhumane tactics have been employed to keep out asylum seekers, including: forced child separations as a deterrent (it’s still going on); metering at the border so that people can’t legally apply and are forced to wait in tent cities for months at a time and subject to rapes kidnapping, malnutrition until they give up;  changing the case law on what qualifies for asylum; promoting judges with the highest denial rates;  denying asylum for persons passing through third countries; and the remain in Mexico policy while waiting for adjudication (this list could go on and on).

Not coincidentally, there have been numerous articles lately about the shortage of workers in the meat processing industry, which have traditionally come largely from refugee admissions and new immigrants. This shortage, now exacerbated by the pandemic, is directly related to the shut down of refugee admissions to the U.S.

Most assume “merit based” to be high tech workers, but that can’t be what this administration values either. The denial rates for H-1Bs (which are 66% mostly made up of STEM field workers, including 76% comprising computer related jobs or engineering) have skyrocketed from 6% to 33%. The USCIS has blown its budget (which had a surplus in the beginning of this administration) chasing after supposed fraud and denying meritorious H-1B cases.

Recently, by executive order, the administration prohibited new H-1B and L-1 visas from being issued, ostensibly under the guise of protecting U.S. jobs.  But this administration was attacking these visa classifications even when the unemployment rate was 3.5%, so it’s not really about jobs.  This executive order has left highly skilled workers and high- level executives of major companies stranded abroad and their families separated because they are unable to get the visas they were otherwise entitled to.

It is worth pointing out that during the first quarter this year, the unemployment rate for professionals in the STEM fields FELL from 3% to 2.8%. Any economist will tell you that is full employment, so it is unclear what U.S. jobs are being protected by this executive order. And the administration did not feel the need to provide any evidence that this executive order was actually needed to preserve U.S. jobs.  Indeed, numerous studies have concluded that H-1B workers create U.S. jobs, not take them away.

L-1 visas are for intra-company transferees with “specialized knowledge” or working as managers or executives. It’s hard to see how denying those visas is protecting U.S. jobs. When companies decide to transfer an L-1 in, it is typically because they are either management level or have a rare skill that can’t be found in the current marketplace. It is a naïve notion to think of all workers as fungible. In other words, high unemployment doesn’t mean we have to stop all new workers from coming in. A laid off restaurant manager can’t be moved to take a senior engineer position at an international engineering firm just to fill an open position.

More recently, ICE announced that F-1 students in the U.S. will not be allowed to stay if their schools hold classes solely online.  In addition to the obvious hardship to students suddenly having to conform to this order, this has the unintended consequence of discouraging the world’s best and brightest from coming to the U.S.  Already schools have lost billions of dollars in reduced foreign student enrollment as a result of the policies of this administration.

We also have to conclude that family immigration is not countenanced as “merit-based.” The administration has often railed about “chain migration” (despite employing family immigration to bring the President’s wife’s family to the U.S.).  Chain migration is largely a misnomer anyway since which family members can come is strictly limited and can take decades to be successful under the current system. Still, it’s clear that this is not what was in mind for merit-based immigration with this administration. Previous proposals from the administration have sought to eliminate entire categories of family immigration.

So what kind of immigrant will qualify in a merit-based system with this administration? It’s not clear. From day one of his campaign to the present day, the President has railed against immigrants and sought to eliminate both illegal and legal immigration. Of course, this may just be last minute election year pandering.  But any plan that fails to address humanitarian concerns, discourages STEM workers, and shuts down family immigration cannot be said to be of any benefit to a nation of immigrants.