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January 2018, Volume 24, Number 1

DACA, Terror, Refugees

Many one-year reviews of President Trump's efforts to reduce immigration concluded that his administration has been able to begin to turn the supertanker that is the US immigration system in a more restrictive direction. Many attribute Trump's November 2016 victory to his willingness to break with mainstream views by calling for a wall on the Mexico-US border and pledging to deport unauthorized foreigners.

Advisor Stephen Miller is generally credited with developing Trump's migration agenda and learning from the chaos that erupted after the first executive order banning travelers from entering the US in January 2017. Subsequent travel bans included consultation with the bureaucracy and are expected to be upheld by the Supreme Court.

During the campaign, Trump said that the US "defended other nations' borders while refusing to defend our own," and vowed to build a wall on the Mexico-US border. A year after Trump became president, eight prototypes of border walls have been built south of San Diego.

DACA. President Obama by executive order created the Deferred Action for Childhood Arrivals or DACA program in June 2012 for unauthorized foreigners who were brought to the US before the age of 16 and who completed high school in the US. Some 690,000 foreigners, most under age 35, had two-year DACA work and residence permits in Fall 2017.

In September 2017, Trump announced that DACA would end in March 2018, but urged Congress to enact legislation to give a legal status to DACA youth. Congress debated whether to enact a "clean" DACA relief bill or to include other Trump immigration priorities such as funding for a wall on the Mexico-US border. Many Republicans want to couple an extension of DACA with more immigration enforcement, while most Democrats want a clean DACA bill.

Trump hosted an unusual January 9, 2017 meeting at the White House with a bipartisan group from Congress and the press to discuss DACA and other immigration issues. A day later, Republicans in the House introduced a bill to give DACA recipients three-year renewable work permits, require all employers to check new hires with E-Verify, and limit family-sponsored immigration to spouses and minor children.

Senators Richard Durbin (D-IL) and Lindsay Graham (R-SC) proposed a plan that would include $2.7 billion for border security, put DACA youth on a ten-year path to citizenship and protect their parents, and eliminate the diversity lottery program. The 50,000 diversity immigrant visas would allow some those with Temporary Protected Status to become immigrants.

Trump criticized the Durbin-Graham proposal for allowing people from "s--- countries" in Africa rather than people from Norway to become US immigrants, unleashing a furor over exactly which word Trump used to disparage certain countries. Trump tweeted that the US needs a Great Wall, merit selection of immigrants and an end to lottery and chain migration.

Senate Democrats refused to provide votes to pass a short-term government funding bill, leading to a government shutdown January 20, 2018, the one-year anniversary of Trump becoming president.

The US Supreme Court ruled 5-4 in December 2017 that the Trump administration does not have to produce documents related to its decision to end DACA as ordered by a San Francisco federal judge. William Alsup in January 2018 ordered DHS to continue to renew expiring DACA work permits, and US Citizenship and Immigration Services said it would accept renewal applications from those whose DACA registration expired after September 5, 2017.

The Migration Policy Institute estimated that two-thirds of the 1.3 million unauthorized foreigners eligible for DACA applied. In Fall 2017, some 382,000 or 55 percent of DACA recipients were employed, including a quarter who were employed in the hospitality industry and four percent who were employed in agriculture. The leading occupations were food preparation, 16 percent, and sales, 14 percent. Three percent or 12,000 DACA recipients were in farming occupations.

Terror. An immigrant from Uzbekistan killed eight people in Manhattan in October 2017, prompting President Trump to call for the end of the diversity visa lottery that allowed Sayfullo Saipov to enter the US. The diversity visa lottery was included in the Immigration Act of 1990. It allows 50,000 immigrants a year from countries that sent fewer than 50,000 immigrants to the US in the previous five years to immigrate to the US with their families.

Over a million foreigners have become immigrants via the diversity visa lottery since 1990. In some years, over 15 million foreigners enter the lottery. In 2016, the leading countries of origin of visa lottery winners were Nepal, Egypt and Iran. The US is the only country that has an immigration visa lottery.

Refugees. The Supreme Court in December 2017 allowed President Trump's third travel ban, which bars many entries from Iran, Libya, Syria, Yemen, Somalia, Chad and North Korea of persons with no bona fide relationship to the US, to take effect while cases blocking the ban from going into effect are pending at the US Courts of Appeal for the 4th and 9th circuits; the 9th Circuit in December 2017 found the third travel ban unconstitutional. Iranians are the largest group affected.

The Trump administration resumed refugee admissions in October 2017 after a 120-day pause, with nationals of 11 countries that account for two-thirds of resettled refugees undergoing extra scrutiny. The US will collect more information on the families of those being resettled and examine their social media posts, so the current 18- to 24-month period for scrutinizing refugees seeking resettlement in the US is likely to be lengthened.

The US expects to resettle 45,000 refugees in FY18, down from 50,000 in FY17 and 110,000 in FY16. Trump said it was more cost-effective to help refugees closer to their homes.

Crime. Jose Ines Garcia Zarate, an unauthorized Mexican who had been deported five times, was convicted in November 2017 of being a felon in possession of a fire arm but not murder for the July 2015 shooting of Kathryn Steinle in San Francisco. Garcia Zarate, who was released from county jail rather than being turned over to ICE, said he found the gun and did not mean to kill Steinle.

Sergio Jose Martinez, an unauthorized Mexican deported 20 times, was sentenced in November 2017 to 35 years in prison for attacking two women in Oregon in July 2017.

Taxes. The Tax Cuts and Jobs Act signed in December 2017 doubles the Additional Child Tax Credit from $1,000 to $2,000 per child and increases the refundable credit to $1,400. The ACTC requires the child to have a Social Security Number, but the adult earner can have an ITIN, the tax-reporting number most often issued to unauthorized foreigners.

Outlook. Migration reformers who embraced the comprehensive immigration bill approved by the Senate in 2013 say that US labor migration policy is not flexible enough for a dynamic and globalizing economy. However, there is disagreement on how to introduce desired flexibility.

Labor migration policy is employer-led in the sense that employers set in motion the process of bringing workers into the US by requesting visas for foreign workers. Employers believe there should be few barriers between them and the foreign workers they want, and decry what they see as excessive bureaucracy and paperwork, saying "it should not take a lawyer to hire a foreign farm worker."

However, many employers prefer the current system to an expert commission that would assess labor market data and determine if guest workers are truly needed. A significant migration infrastructure of lawyers and lobbyists benefits from the current system and often resists changes.

Despite government efforts to supervise employer searches for US workers to fill particular jobs, there is significant fraud and abuse in the current system. Over 95 percent of employer requests for foreign guest workers are approved, often at wages that are below the prevailing level.

Once an employer becomes comfortable with guest workers, path dependence ensures that these employers continue to employ mostly guest workers, as evidenced by the very few cases in which US workers replaced guest workers. Experienced guest workers can recruit friends and relatives to fill vacant jobs, reducing employer recruitment and training efforts to fill jobs. Meanwhile, wages and working conditions do not improve because guest workers are available.

The Trump administration wants to shrink and reorient the immigration system by reducing the number of unauthorized foreigners in the US, now 11 million, and selecting more immigrants on the basis of their skills and education. The DOJ and DHS are placing new emphasis on detecting cases of US employers discriminating against US workers in order to hire foreign workers.

Over half of unauthorized foreigners are Mexicans, and persistently low wages in Mexico promise outmigration pressure for the next decade or more. There have been efforts to regularize Mexico-US migration over the past two decades, and the consensus among mainstream observers is that the comprehensive immigration bill approved by the Senate in 2013 represented the best path forward.

US agriculture occupies a special place in Mexico-US migration discussions. About five million of the eight million unauthorized workers in the US were born in Mexico, and unauthorized Mexicans are half of US crop workers. Agriculture has enough political clout to block legislation that would require all employers to use E-Verify to check new hires until farmers have easier access to legal workers.

Rep Bob Goodlatte's Agricultural Guestworker Act (HR 4092), approved by the House Judiciary Committee in October 2017, aims to give farmers easier access to guest workers. Democrats opposed HR 4092, and they were joined by many farmers who disagreed with its cap on admissions and the requirement that current unauthorized farm workers return to their countries of origin and re-enter with H-2C visas. Other proposals face similar daunting odds of winning approval, including those that would allow state governors to certify industries or occupations in need of guest workers.

Some see the Canada-Mexico Seasonal Agricultural Worker Program, which involves 25,000 workers a year, as a model for a new Mexico-US Bracero program. However, minimal illegal migration in Canada, the role of employers' associations in recruitment and transportation, and the small size of the SAWP may make it less relevant for the US.

Meanwhile, the H-2A program is expanding rapidly, and Mexico's Ministry of Labor is trying to help associations of Florida farm employers to recruit Mexican workers while avoiding private and fee-charging recruiters. As more US farmers become comfortable with the H-2A program, support for guest worker programs that would allow workers to change jobs and self-petition for immigrant status may fade.

Several regulatory changes may occur in the H-2A program. USCIS defines a seasonal job as lasting 12 months or less, while DOL uses a 10-month standard; farmers want DOL to move to the DHS 12-month definition of seasonal. USDA is expanding its Farm Labor survey, which twice a year asks farm employers to report total wages and hours worked by type of worker on their farms for one week in four months of the year, January, April, July and October. Farm Labor may also resume collecting data on workers brought to farms by contractors and other nonfarm employers.

To expedite travel to the US, returning H-2A workers may be exempted from in-person consular interviews in Monterrey, Mexico, which could lower transportation costs to the US. However, persuading Congress to allow farmers to "legalize" currently unauthorized workers by making them guest workers appears unlikely.

President Trump, addressing the American Farm Bureau Federation meeting in Nashville in January 2018, promised more high-speed internet, health services, and work-force training in rural America. The US exports more agricultural products then it imports, so most farmers support free trade agreements such as NAFTA and TPP.