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By Jeremy L. Neufeld

Just days before the 2020 election, the Trump administration proposed a new rule to change how H-1B visas are allocated. The final rule was announced last week and is set to go into effect before the 2022 H-1B lottery. The Biden administration will have many Trump-era immigration rules to reverse. But this rule uniquely is worth supporting after the end of the Trump administration, since it ensures visas go to the best and brightest, reduces risk for H-1B employers, protects native workers, and fulfills one of Bidens campaign promises.

The demand for cap-subject H-1Bs consistently outpaces the 85,000 that are allowed each year. The result is a zero-sum game; one employers approval is necessarily one fewer visa available to other employers. And the lottery-based allocation established under the old rules dictates that virtually all employers are equally likely to win, regardless of their petitions relative merit.

The new rule replaces the random lottery with a wage-based ranking, awarding visas to employers offering the largest salaries. Under wage-based allocation, U.S. Citizenship and Immigration Services no longer has to be indifferent between a superstar who is a perfect fit for a lucrative niche job and a worker to fill an entry-level position. Instead, USCIS can ensure visas are going to the most valuable workers.

Of course, much of this zero-sum competition is artificially imposed by the low H-1B cap even the less productive H-1B-eligible workers with sponsors would still be of enormous benefit to the United States. But the Department of Homeland Security cant get rid of the cap. It can make sure that in the face of the cap, visas go to the best and brightest of the best and brightest.

In addition to allocating H-1Bs efficiently, wage-based allocation yields three other significant benefits.

First, it protects native workers. Labor market competition between H-1B workers and natives is largely overblown, with H-1B workers earning much more on average than natives of the same level of education. However, there are several disturbing cases where businesses use H-1B workers to replace or undercut natives, even if such cases are quite rare. However uncommon, such cases are bad for the native workers affected and bad for the H-1B programs political prospects. After all, how can lawmakers be persuaded to raise the cap if H-1Bs are already displacing workers?

Naturally, the issue is the lottery system, which often awards visas to the least deserving petitions and incentivizes the proliferation of outsourcing companies and H-1B dependent firms. Assigning visas to the workers who will earn the highest salaries automatically makes cases of abuse financially unviable. Making employers compete for visas by offering better wages is pro-worker and can help recover some of the programs damaged reputation.

Second, wage-based allocation is good for business and reduces a tremendous amount of waste. Under a lottery, businesses face costly uncertainty about whether all the money and time spent trying to secure a visa will pay off. If an employer wins the lottery, their new employee will make the process worth it, but if they lose, the resources are squandered. On top of the waste, the uncertainty and risk deters some businesses from participating at all. Wage-based allocation addresses these issues, giving high-paying employers security and reliability, while providing lower-paying employers the signal they need to know they wont win a visa if they petition for one.

Third, a wage-based allocation generates valuable information to lawmakers about the value of H-1Bs. Each years salary cutoff that is, the lowest salary that still secures a visa sends a much stronger signal about the demand for H-1B labor than does the number of lottery applicants, which can obscure the underlying need for workers by only including employers who are willing to take on the risk inherent in entering the lottery. As demand for labor increases, it might not show up clearly in the number of H-1B applications because the value of an H-1B application decreases as the probability of winning the lottery decreases. Therefore, the number of H-1B applications is a mixed signal about the demand for workers and the risk-aversion of employers that is hard to disentangle. On the other hand, movement in a salary cutoff can more transparently inform lawmakers how to set the cap and assure them that increasing it wont lead to low-wage labor.

As it happens, this policy is included in Bidens immigration plan. An immigration system that crowds out high-skilled workers in favor of only entry level wages and skills threatens American innovation and competitiveness, his plan reads. Then it follows with Bidens proposal to fix it: first reform temporary visas to establish a wage-based allocation process. Granted, Bidens plan indicates that he hoped the change would come from Congress.

Nevertheless, allowing the rule to stand would make sure that talent and resources arent squandered in the next lotteries before Congress has a chance to get to it if it does at all. Meaningful H-1B reform to charge innovation and productivity growth doesnt stop at wage-based allocation, but its a promising start.

Continued here:
Trump's One Immigration Reform That Biden Should Keep - Niskanen Center

By Maria Fernanda Gandarez and Avram Morell

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Law360 (January 15, 2021, 6:59 PM EST) --

Most of the chatter has focused on anticipated policy shifts in the humanitarian aspects of immigration asylum, the Deferred Action for Childhood Arrivals program, family separation and unification, and priorities in removal of the undocumented.

But if you believe that foreign professionals and skilled workers are good indeed, necessary for our economic recovery, you would add a number of doable and impactful changes to the immigration wish list for the Biden administration. While there are many to choose from, here are just six ways in which the new team in D.C. can address some of the damage wrought by the outgoing administration and clear some of the barriers preventing foreign talent's contributions to our recovering economy.

Repeal and reimagine the H-1B specialty occupation category.

In the past few years of the Trump administration, the H-1B category has been attacked in unprecedented ways. The definition of specialty occupation has been narrowly reinterpreted, and employers have been receiving overly burdensome requests for further evidence, unjustifiably claiming that the employer's degree requirements for the position were too broad and therefore, could not support a specialty occupation.

These assertions neglect to recognize the realities of today's workforce, require a response that costs employers significant time and money, and can still lead to the denial of an H-1B petition that is otherwise approvable.

This effort to undermine the H-1B category, and business immigration as a whole, led many employers to forgo sponsoring qualified applicants to avoid the high risk of receiving such a request and subsequent denial. If employers chose to proceed with sponsoring a candidate for an H-1B, they had to deal with a different and rather arbitrary standard created by U.S. Citizenship and Immigration Services, which was telling employers, the experts in their respective fields, what the degree requirements should be for their positions.

This movement deters U.S. employers from hiring the most qualified candidates they can find for their positions, creates unnecessary unpredictability and delays in the hiring process, and can lead to loss in productivity, growth and facilitation of jobs for U.S. workers.

While there isn't just one, single policy change that led to this shift in interpretation and application of the regulations, the "Buy American, Hire American" executive order and other similar anti-immigration policies encouraged USCIS to heavily rely upon their discretion to issue more requests for evidence and denials than ever before. On Oct. 6, 2020, the Trump administration sought to codify this extreme interpretation of the definition of "specialty occupation" as a final rule, which the court vacated due to lack of notice.

Striking down these policies and preventing the U.S. Department of Homeland Security from proceeding with this overly restrictive standard would help to liberate this visa category and others from the stringent requirements they currently face. This would open up the category to more employers, such as startups and smaller employers that still play a large role in the U.S. economy but have found the recent changes too difficult to overcome, leading to a smaller pool of qualified candidates.

If the overall purpose of business immigration policy is to feed and boost the U.S. economy, roadblocking U.S. employers on their path to growth would be counter to that goal.

Now we look to the Biden administration to not only prevent DHS from moving forward with a restrictive final rule, but to broaden the definition of specialty occupation to account for today's modern economy and employment marketplace, rather than remain artificially tethered to 20th century notions of the relationship between a very specific degree and a professional position.

Take a fresh look at prevailing wages for H-1B and labor certification.

Prevailing wages in connection to the labor condition application required for an H-1B, H-1B1 or E-3 visa, as well as labor certification Employment and Training AdministrationForm9089 applications, have historically served as a method of ensuring fair compensation for foreign workers and protecting the U.S. labor market.

However, the U.S. Department of Labor has broad discretion in setting the statistical methodology for the wage levels reported in its survey. This past fall, the DOL promulgated new regulations governing prevailing wages, which shifted the methodology to severely increase the wages. While the court struck down this proposed rule, the DOL has now published a new version of the regulations with a similar goal: to drive the wage levels up.

But arbitrarily raising the prevailing wage levels in a manner that does not align with the current marketplace data for these positions does not create jobs for U.S. workers. It does, though, prevent employers from utilizing the H-1B visa for positions where there are insufficient U.S. workers, particularly in the quantitative, science and technology areas.

We hope the new administration will keep this proposed rule from being published in its final form. Further, we suggest a reexamination of the prevailing wage survey and system, which, with each passing year, seems more and more out of step with the labor market.

Develop an H-1B selection system that does not bend toward the highest bidder.

Viewing salary as the number one factor in determining whether a petition should be selected for the H-1B quota is a narrow-minded approach that fails to consider the true business need for highly skilled workers in entry level positions. Yet, the new USCIS rule published on Jan. 8 does just that. It ranks priority in selection based upon the Occupational Employment Statistics survey wage level, looking to select first from petitions with a Level 4 wage.

The major blind spot of this rule is that many U.S. employers aren't seeking to hire senior-level employees into new positions. Rather, expanding employers need workers in entry-level and mid-level positions, who would be proportionately paid entry to mid-level wages, to build a strong workforce and remain competitive within and outside of the U.S.

If employers are limited to hiring H-1B employees who are crucial to the success of many companies at the highest wage levels, this will cripple their growth efforts. Smaller businesses and startups may not be able to afford to pay the highest wages and would lose access to the highly skilled pool of foreign candidates.

Furthermore, F-1 students educated at U.S. universities may not be able to find jobs in the U.S. out of school as U.S. employers will be unable to pay the required salary, leading to fewer international students. This rule would then have an effect that is opposite to the one intended, which is to boost the U.S. economy by attracting and retaining highly skilled foreign workers.

Thus, we ask Team Biden to halt the implementation of the new H-1B selection rule and revisit through a statutory and regulatory lens the entire H-1B selection process to develop a system that enables and encourages smart and strategic hiring for U.S. businesses.

Repeal the ban on H, L and J visas. Immigrants don't take jobs; they make jobs.

Presidential Proclamation 10052, which restricts many new L, H and J visas, was recently extended until March 31, once again bringing disappointment and delays to U.S. employers who were hoping to finally bring over their highly skilled foreign professionals and, frequently, senior-level employees to the U.S.

Business plans have been placed on hold because it's difficult to proceed when the manager or executive leading the expansion effort can't get into the U.S. In turn, employers must also hold off on hiring anyone in connection to these stalled plans this includes U.S. workers. Due to COVID-19, it's become even more critical that businesses be allowed to proceed with their efforts to grow, oftentimes under the leadership and through the specialized knowledge of these foreign workers, creating more jobs for U.S. workers.

We encourage President-elect Joe Biden to use his executive authority to reverse this proclamation as soon as he assumes office.

Reinstitute in-country visa renewal, a doable alternative during consular COVID-19 closures.

COVID-19 exacerbated many of the drawbacks in the U.S. immigration system, not the least of which is the requirement for nonimmigrant workers in the U.S. to apply at a U.S. consulate abroad in order to obtain a visa stamp to facilitate international travel. Since consulates closed at the beginning of the pandemic, there have been extremely limited alternatives for those seeking to depart and reenter the U.S. if their visa stamps have already expired.

These circumstances separated families at their most vulnerable times and kept them apart through emergencies, as many could not go home in fear they would not be able to return to the U.S. Similarly, crucial professional meetings were canceled, and businesses suffered.

Reinstituting in-country visa processing, which for many years was available by mail through the U.S. Department of State in Washington, D.C., could largely solve this problem. This process is nearly identical to the drop-box method of visa renewal abroad, which has grown in popularity and effectiveness, especially during the pandemic.

If implemented, it could significantly ease the burden on under-staffed consulates. In addition, offering in-country visa renewals for those who have already obtained their initial visa stamp abroad would provide much-needed relief for nonimmigrants workers and their employers in the knowledge they would be able to depart and return to the U.S. as necessary.

It's clear that even with a vaccine rolling out around the world, the effects of COVID-19 will linger for years, and the delays caused by consulate closures will likely push through this year and into the next. At least while consulates cannot operate at normal capacity, the in-country visa renewal option would be a viable and humane alternative.

Provide premium processing for employment authorization documents.

Many workers and employers are plagued by the very long wait times for employment authorization cards. This simple adjudication process, which is often nearly automatic once a certain nonimmigrant status is confirmed, has become a source of suffering and frustration to so many.

Ideally, USCIS would marshal rulemaking and process changes to turn this into a brief process. But, in the meantime, we wish the administration would consider alleviating some of the economic angst by extending the premium processing program to cover these largely administrative adjudications.

This move would increase funding to USCIS and provide stability and security for foreign workers and U.S. employers, allowing them to make plans for their business growth without worrying about losing key members of a project halfway through or being in a position where they're scrambling to rework their organizational structure, which can cause loss of jobs, downsizing, and additional pressure on the remaining employees.

We don't expect the incoming administration to fix the whole immigration system. Still, these suggested, achievable practical changes can make employment-based immigration work much better for U.S. employers and help build back our economy.

Pryor Cashman member Eugenia Joe contributed to this this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

Read more:
6 Priorities For Employment-Based Immigration Reform - Law360

WASHINGTON, D.C. (WDVM) Back in June, the Trump administration drafted a proposal that would place more restrictions on asylum seekers seeking refuge in the united states at U.S. borders but how will this proposal impact LGBTQ immigrants specifically?

Members of the community say these changes could create barriers for them to be allowed into the country.

The rule received nearly 89,000 comments, which is a staggering number of comments, most of them in opposition, said Azadeh Erfani, Senior Policy Analyst at the National Immigrant Justice Center.

Erfani says one of the biggest concerns amongst LGBTQ activists is the regulation that immigrants would have to identify with social groups their first day in court. Activists believe that immigrants fearing persecution for their gender identity will have a difficult time coming out to the judge.

They have to disclose often times very intimate facts about themselves in order to really lay out the claims on their persecution, she said.

Senior Director for the Center for American Progress, Sharita Gruberg, says another concern is being denied for using false identification.

LGBTQ folks, particularly trans folks, in countries where theyre facing persecution, are not necessarily going to have access to the travel documents they need to officially enter a new country, said Gruberg.

And Geoffrey Louden who is the Chair of Center Global, says that LGBTQ immigrants may not have access to a support network back home due to anti-LGBTQ sentiment.

In addition to coming to the United States, uprooting their lives, not knowing anyone here, theyre also not able to find the support networks that other asylum seekers might necessarily know they have access to, he said.

The stricter legislation comes as a way to screen asylum cases easier and faster.

It basically tries to screen out cases before they reach their merits and what that means is that people are going to be denied their day in court, said Erfani.

However, conservatives say that the immigration system has been abused for years. Conservative activist Joe Visconti says tighter restrictions will prevent those who are falsely seeking asylum from entry.

The federal government does not allow illegal aliens to be harboredso thats what the wall is for, said Visconti. But the reality is Trump is trying to do a broad stroke to make a program that will make it much more difficult for people to fake that they are seeking asylum.

The solution to LGBTQ abuse and violence, he says, is to put pressure on the United Nations to address the abuse of the community in the countries they are fleeing from.

Many of them are coming from countries that oppose gaysthis is something that should be addressed, I think, with the United Nations, said Visconti. Trump is the easy blame. America is the easy blame, and we are not the policemen of the world, and were not the caretakers of the world.

Read more:
inFOCUS How will LGBTQ asylum seekers be impacted by Trumps immigration reform proposal? - WDVM 25

Texas and eight other Republican-led states will ask a federal court on Tuesday to rule the Deferred Action for Childhood Arrivals program unlawful, posing a fresh threat to the Obama-era program offering deportation protections to young immigrants that has been the subject of legal battles for the past few years.

The Trump administration first attempted to end the program, known as DACA, in September 2017, but it was blocked by federal courts. The Supreme Court ruled in June that it hadnt taken the proper steps to do so, and after several additional months of legal wrangling, the government began accepting new applications for the program for the first time in more than three years.

DACA, introduced in 2012, offers temporary protections to any immigrants in the country without legal authorization who were 30 or younger when the program was announced. President Obama created the program to protect these young immigrants, known as Dreamers, after their namesake bill the Dream Actwhich would have provided them a path to citizenshipfailed to pass Congress in 2010.

The years of legal and political fighting over the program, which has become a flashpoint in the larger debate over immigration reform, have created a sense of whiplash for the 640,000 young immigrants who depend on the program for work permits and protections against deportation. President-elect Joe Biden has said he will fully reinstate the program, while conservative states fight to overturn ita mirror image of the fight throughout President Trumps term in office, when the White House sought to end its protections but was met with court challenges by states to preserve them.

Juan Carlos Cerda and his fiance, Juana, both Dreamers, are accustomed to their immigration status disrupting their lives. For the past year, they have wanted to buy a home together, but struggled to find a lender willing to make them a loan. On Saturday, they finally moved into that homea two-story brick house in Fort Worth, Texas.

See more here:
Texas Challenges Legality of DACA in Latest Bid to End the Program - The Wall Street Journal

WETHERSFIELD, Conn. A Wethersfield Man is celebrating 1000 consecutive days advocating for the rights of immigrants and dreamers.

In 2018, Alan Dornan grew furious with the injustices he was seeing in the world when it came to immigrants and the rights of dreamers. I just suddenly heard this voice in my head that said, walk!

And so, 1000 days ago, the then 78-year-old Alan Dornan picked up his sign, and began walking. He walked 2 miles every single day with his sign until he was no longer able to do so. Suffering from scoliosis and other back issues, but changed his commitment to sit on the corner for 90 minutes every day.

Alan is passionate about advocating for the dreamers and immigrants and is a Member on the Immigrant and Refugee Coalition Board.

Alan will continue to fulfill his commitment until he can no longer do so.

Last year, Dornan said hes fighting for those without a voice, and said he will use his platform to make a difference for as long as he can.

Dornan said, Congress needs to pass comprehensive immigration reform that includes permanent legal status and a pathway to citizenship for the 11 plus million undocumented immigrants in America.

At that time, his neighbors said no matter where you stand on the issue seeing his strength makes them proud.

Tammy Dube said, It doesnt matter if its rain, if its icy he walks and its amazing to see him.

Tammys husband, Paul, further explained, You got to respect him for what he believes in and its a good thing that he does that, but its a human respect thing for another human and I wish more people could be like him.

Excerpt from:
81-year-old Wethersfield man has been out 1,000 straight days for immigration rights - FOX 61