Originally Published by Politico.
The president's posture on illegal immigration has had a chilling effect on legal migrant flows.
By TED HESSON
President Donald Trump’s immigration legacy so far isn’t a border wall or fewer migrants crossing the border illegally into the U.S.
It's a reduction in how many people enter the U.S. by entirely legal means.
State Department data show visa issuances have slumped under Trump, according to government information reviewed and analyzed by POLITICO. The number of visas for temporary stays in the U.S. fell 13 percent in fiscal year 2018 compared with two years earlier, the last full year under President Barack Obama. Immigrant visas, which allow a person to apply for a green card, dropped by 14 percent over the same period. And for people with visas, such as H-1B visas for skilled foreign workers, there is less certainty about whether they will be renewed because of changes in policy.
“That’s been a bit of a nightmare,” said Sarah Pitney, an immigration attorney with the D.C.-based firm Benach Collopy. “A lot of employers have just started looking for options other than H-1Bs, because H-1Bs have been such an issue in the last year or so.”
The State Department doesn’t provide detailed information about how many visa applications it receives or denies, so it’s impossible to determine how much the decline is attributable to tougher screening and how much to dwindling interest in traveling to the U.S. Either explanation would suggest that Trump’s posture had a chilling effect on legal immigration flows. Email
U.S. Citizenship and Immigration Services, under Director Francis Cissna, has rained down policy memos and directives aimed at rooting out fraudulent and non-meritorious visa applications, but critics say they've had the effect of slowing down or blocking legitimate visa applications.
The changes amount to “reform by a lot of trimming and shaping,” according to Jessica Vaughan, a policy director with the Center for Immigration Studies, which backs lower levels of immigration. “It’s really a lot of small changes that in the aggregate make a big difference.”
By contrast, arrests by Border Patrol — a proxy for illegal crossings — rose in recent months to the highest levels of the Trump presidency. Border Patrol nabbed 51,856 migrants at the southwest border in November, a 78 percent increase from a year earlier. The arrest levels resemble the higher months of the Obama presidency, a sign that Trump’s attempts to limit illegal immigration haven’t worked.
Despite the surge, illegal immigration remains low compared with the late 1980s through the early 2000s, when border arrests numbered about twice what they do today. But this past year's increase was enough to prompt Trump to fume about a migrant “invasion.” Administration officials implemented a succession of border policies, including the deployment of nearly 6,000 military troops, intended to end the perceived crisis. None of these deterred rising numbers of migrants, principally from Central America, from trekking north. And deportations under Trump remain far below levels under Obama: In fiscal year 2018, U.S. Immigration and Customs Enforcement removed 256,058 people. By comparison, ICE removed 409,849 people in fiscal year 2012, a high-water mark during the Obama administration.
The border wall itself remains unbuilt, despite Trump’s frequent threats to force a federal government shutdown over what he estimates would be a $20 billion project and the current budget stalemate over the wall in Congress. A spending bill passed in March devoted just $1.4 billion to an estimated 84 miles of new and replacement barriers along the southwest border. During Trump’s first year in office, Congress provided only $341 million for 40 miles of replacement fence.
When it comes to legal immigration, however, the Trump administration has taken steps that could reshape who enters the country for years to come.
Employers are particularly worried about changes to the H-1B visa program, a popular vehicle for tech companies to import foreign talent to the U.S. The program grants 65,000 employment visas each year, plus an additional 20,000 for U.S. master’s degree holders.
Under Trump, the program — which has come under bipartisan criticism for displacing American workers through a contractor loophole — has been peppered with low-profile reforms that have disrupted the existing process. For example, USCIS issued a policy memo in October 2017 that gave visa officers discretion to scrutinize visa renewals in the same manner as a new petition. That introduced a new element of uncertainty for employers and their workers.
A separate memo issued earlier that year declared being a computer programmer in itself didn’t qualify as a “specialty occupation” eligible for an H-1B visa — a blow to tech firms seeking foreign workers for such roles.
The agency also announced a policy over the summer that allowed visa officers to deny a petition without first requesting additional evidence from the applicant or filing an advance notice of intent to deny.
“The net effect of these policies make it much more challenging and expensive for U.S. employers to bring in foreign professional talent,” said Andrew Greenfield, managing partner of the Fragomen law firm’s Washington office. “I think that this was the easiest thing for the administration to do to demonstrate its tough stance on immigration, because it just couldn’t get Congress to act.”
Large employers have proceeded cautiously, since immigration represents only one aspect of engagement with a president who also has sought to reshape trade pacts and the tax system. Still, they’ve made their position known.
Business Roundtable, a coalition of high-profile CEOs that includes executives of Coca-Cola, Apple and JPMorgan Chase, sent a letter to DHS Secretary Kirstjen Nielsen in August that decried “arbitrary and inconsistent adjudications”. The unpredictability had caused “considerable anxiety“ among employees and threatened to disrupt business operations, the executives said.
The U.S. Chamber of Commerce, which represents more than 3 million businesses, also has spoken out.
“It’s not just disruptive for that individual who was planning on staying in the United States, living and working here with his or her family,” said Jon Baselice, the Chamber’s director of immigration policy. “The company has to find someone to fill that person’s spot.“
The restrictionist push has started to resonate in places like Des Moines, Iowa, where unemployment stands at 1.9 percent. Lori Chesser, an immigration attorney with the Iowa firm Davis Brown, said she has seen denials of H-1B extensions that have been approved several times before. “The businesses need certainty,” she said.
The Trump administration also has slowed the process to obtain a green card. In 2017, USCIS began requiring an in-person interview for every immigrant who moves from an employment-based visa to become a lawful permanent resident.
One DHS official critical of the new policy called the move “totally ideological.” The immigrants being interviewed, this person noted, typically have been living in the U.S. for years on student visas and employment visas.
“These are people we know,” the official said. “This is so far away from smart, resource-driven, risk-based analysis.”
Foreign student decline
Student visas under Trump have fallen, too. The State Department issued roughly 363,000 F-1 student visas in fiscal year 2018, according to a POLITICO analysis of State Department data. That represents a 23 percent decline from fiscal year 2016. The number of foreign students enrolled for the first time in U.S. colleges and universities declined in 2017 for the second year in a row, according to a reportreleased in November. The report, based on an annual survey by the nonprofit Institute of International Education, calculated that new enrollment dropped nearly 7 percent compared with the previous year.
Leaders of universities and colleges blame Trump’s immigration tactics for the slowdown as the administration has moved to toughen standards for foreign students.
“Many of our most successful companies are based on the talents of those international students,” said Janet Napolitano, president of the University of California system and a former Homeland Security secretary to President Barack Obama. “It just seems not wise, to put it mildly, to discourage that kind of international talent from coming to the United States.”
A new USCIS policy announced in October threatens to saddle international students with an immigration penalty if they remain in the country beyond the term of their visa, a hard-line move to compel students without authorization to depart the country quickly.
Trump’s national security policies also have served to choke off the flow of foreigners from countries deemed high-risk by the administration.
The latest version of the president’s travel ban policy — upheld by the Supreme Court in June — places a range of travel restrictions on five majority-Muslim countries — Iran, Libya, Somalia, Syria and Yemen — as well as on North Korea and Venezuela. A POLITICO analysis published in April found visas granted to people from travel ban countries dropped sharply under the policy.
The refugee program is another Trump target. The president set the refugee admissions ceiling at 30,000 in fiscal year 2019 — a steep decline from the 110,000 in place when he took office. The president’s latest plan also shifted refugee processing away from the Middle East and Africa, according to a report to Congress earlier this year.
And Trump is hardly done, with some of the most sweeping changes potentially coming in 2019.
The administration is expected to publish its so-called public charge rule, which could block immigrants from obtaining lawful permanent residency if they’ve received certain government benefits or if they’re deemed likely to do so in the future. The measure could reshape the character of legal immigration to the U.S. In addition, it could force hundreds of thousands of foreigners on temporary visas to prove they’ll be self-sufficient during their stay — yet another hurdle for employers.
The administration also plans to roll back work authorization for roughly 91,000 spouses of H-1B visa holders, a move opposed by the tech lobby.
In the longer-term, the administration plans to reform the “optional practical training” program, which allows international students to work 12 to 36 months in the U.S. Such a change could make it harder for employers to recruit international students after graduation.
Meanwhile, the broader crackdown on illegal immigration continues to falter due to funding constraints and legal setbacks.
Trump has struggled to convince Congress to adopt his immigration agenda, even with Republicans controlling the House and Senate during his first two years in office. When the Senate engaged in an intense immigration debate in February, a hawkish bill backed by the White House flopped with a majority of senators — including more than a dozen Republicans — opposed.
Once Democrats take control of the House in January, Trump will have an even more difficult time pushing his legislative agenda.
“I think if they try and do that, particularly next year, they’ll probably have a battle on their hands on the House side,” said California Rep. Lucille Roybal-Allard, the top Democrat on the House Appropriations subcommittee for homeland security issues.
Still, the president‘s tough talk on illegal immigration has mollified his base. In the November midterm elections, the president spent weeks slamming a caravan of migrants traveling toward Mexico to the U.S., a strategic move intended to motivate Republican voters. Democrats regained control of the House, picking up 40 seats so far. But immigration proved a top issue for Republican voters.
“He’s all about theater,” said Muzaffar Chishti, a director with the nonpartisan Migration Policy Institute. “He has created the notion that there’s a new sheriff in town.”
Chishti argues that the administration has wagered that it can deter illegal immigration and asylum seekers by making miserable the lives of migrants who are already here — but that it hasn’t succeeded.
“They tried to separate families,” he said. “To a lot of people that was the ultimate deterrent. No one wanted their kids to be separated. But guess what? Even then people kept on coming.”