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July 2020, Volume 26, Number 3

Covid-19 and Immigration

President Trump on April 22, 2020 signed the Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the Covid-19 Outbreak, which bars some immigration to the US for 60 days. Most US consulates abroad had already stopped offering the mandatory interviews required to receive immigrant visa when the proclamation was issued.

Trump?s proclamation exempts immediate family members of US citizens and other foreigners who are already in the US, that is, the proclamation primarily affects foreigners who are outside the US and seeking to immigrate. The proclamation could affect a quarter of the almost 100,000 legal immigrants ?admitted? each month.

Most immigrants are already in the US when they are ?admitted.? In FY19, USCIS adjusted the status of 580,000 foreigners already in the US by granting them immigrant visas, and DOS issued 460,000 immigrant visas to foreigners abroad. Those whose entry is blocked include family members of immigrants waiting to enter the US and the adult brothers and sisters of US citizens seeking to immigrate.

Guest workers arriving under the H-1B, H-2A, and H-2B programs were exempt from the April 2020 proclamation. Restrictionist groups criticized the decision to allow the entry of guest workers, prompting a June 2020 Executive Order that banned the issuance of new H-1B, H-2B, J-1, and L-1 visas until December 31, 2020. The June 2020 order could prevent 525,000 additional foreign workers from entering the US.

The purpose of suspending guest worker entries is to open up jobs for US workers. However, foreign students were exempted and, after graduation, they can be hired by US employers as H-1B workers. Major US tech firms such as Microsoft hire foreign graduates of US universities with H-1B visas, while Indian outsources such as Infosys bring foreign workers from India with H-1B visas.

Farm and other food system workers were deemed essential and expected to continue to work during the pandemic. Foreign H-2A farm workers were also considered essential, as were food-service H-2B workers. Special arrangements were made to ensure that they could continue to obtain work visas abroad even as normal consular operations were suspended.

The fact that the H-2A program expanded as the US unemployment rate topped 14 percent in April 2020 suggests that the government sees little hope of persuading jobless US workers to fill seasonal farm jobs. There are many reasons, including US workers who want year-round jobs that offer upward mobility and farm employers who have become accustomed to experienced and hard-working guest workers.

Biden. Presumptive Democratic presidential nominee Joe Biden came under pressure from immigration rights activists to condemn the Obama administration strategy of increasing deportations in order to win Republican support for legalization. A Comprehensive Immigration Reform Act was approved by the Democrat-controlled Senate in 2013 that included a path to legalization for most unauthorized foreigners in the US as well as more funding for border walls and fences, but was not considered by the Republican-controlled House.

The US has 44 million foreign-born residents, including 21 million who are naturalized US citizens and 11 million who are unauthorized. Over three million unauthorized foreigners were deported during the eight-year Obama administration.

Biden promised to propose a path to legal status for unauthorized foreigners on his first day in office, and promised to invest $1 billion a year in Guatemala, Honduras and El Salvador to tackle the root causes of migration. Biden has not agreed with advocates who want to eliminate criminal penalties for entering the US illegally or to abolish ICE.

With Biden focused on winning swing states such as Pennsylvania, Michigan and Wisconsin, some migrant advocates fear that he will not be sufficiently generous to the unauthorized in order to win white working class votes in these states.

DACA. The US Supreme Court in June 2020 ruled 5-4 that the Trump administration did not follow proper procedures to end the Deferred Action for Childhood Arrivals program. DACA was begun in 2012 by President Obama to protect from deportation unauthorized foreigners who arrived in the US before the age of 16, and who graduated from US high schools.

Some 650,000 unauthorized foreigners had temporary work and residence permits in summer 2020. The Supreme Court?s decision reduces the pressure on Congress to develop a legislative fix for so-called Dreamers. The Development, Relief, and Education for Alien Minors Act (DREAM) failed in Congress in 2001, 2007, and 2011.

New regulations announced June 11, 2020 make it harder for foreigners to apply for asylum in the US. Under the 1951 Geneva Convention, the US and 144 other governments have pledged not to return foreigners to their countries of citizenship if they have a well-founded fear of persecution there due to their race, religion, nationality, membership of a particular social group or political opinion.

Most countries including the US allow foreigners to apply for asylum and then live and sometimes work until an immigration judge decides if the foreigner satisfies the well-founded fear standard. Negative decisions can be appealed, so that full court procedures may allow foreigners who are ultimately deemed not in need of asylum to live and work in another country for three to five years due to backlogs; there are more than a million immigration cases waiting in the US backlog. European governments often provide asylum applicants with housing and food during their court process.

The June 2020 regulation would allow USCIS asylum officers to make more decisions about asylum rather than immigration judges, who are part of the Justice Department. Expedited removal procedures could be employed to deal with foreigners who illegally enter the US and are found within 100 miles of the Mexican or Canadian borders.

Foreigners could no longer receive asylum because they are targeted by gangs or non-state actors in their countries, could not receive asylum due to gender discrimination, and could be prevented from applying for asylum in the US if they spent at least 14 days in another country and did not apply for asylum there. Foreigners unlawfully in the US at least a year could not apply for asylum to prevent their removal.