December 11, 2020 12:06PM

Visualizing a 4‐​Year Assault on Legal Immigration: Trends Biden Must Reverse

With President-elect Joe Biden set to assume the presidency on January 20, he has set the ambitious goal of reversing his predecessor’s immigration policies. The scope of President Donald Trump’s influence can be measured in terms of policies—the Migration Policy Institute has identified more than 400 changes since 2017—but it can also be measured in terms of people—immigrants not coming to America, not receiving permanent residence, or being denied employment authorization and status.

This post explores the trends in immigration approvals and denials that the new administration must reverse to fulfill its campaign promises.

Related Study

Deregulating Legal Immigration: A Blueprint for Agency Action

President Trump went to unprecedented lengths to restrict legal immigration in his one term—but the system was overly burdensome and expensive long before him. President‐​elect Joe Biden will have the opportunity to reverse these actions and deregulate this system. Here is a compendium of 30 proposals by 15 authors—including several of America’s leading immigration law experts—to help the Biden administration operate the immigration system as openly and efficiently as the law allows.

Read the Reforms  

738,000 Fewer Immigrants From Abroad

Immigrant visas are issued to prospective legal permanent residents by the Department of State (DOS), usually following a petition by a U.S. sponsor approved by U.S. Citizenship and Immigration Services (USCIS). Before President Trump, 86 percent of immigrant visas were issued to the immediate family members of U.S. citizens and legal permanent residents—spouses, children, parents, and siblings (and their spouses and minor children). Fiancés and their children also receive a K nonimmigrant visa that provides a path to permanent residence, so they are also included in Figure 1.

Figure 1 shows immigrant visas issued by month under the Trump presidency compared to the average for the last fiscal year of the Obama administration (2016). Immigrant visa issuances were down 83 percent in October 2020 compared to FY 2016. Even before the pandemic, permanent immigration from abroad had declined by about 24 percent. Overall, there were 738,857 fewer immigrant visas issued as of October 2020 than there would have been if the rate of issuance under President Obama had continued under President Trump.

The main cause of the drop in FY 2020 was DOS’s closure of consulates and refusal to waive in-person visa interviews. But another reason is that USCIS started denying petitions for immigrant visas at a much higher rate. Figure 2 shows the USCIS denial rate for immigrant petitions (which can also be the basis of an adjustment of status application). The denial rate was higher in every quarter under the Trump administration than the annual average in FY 2016. The denial rate basically doubled from about 8 percent in FY 2016 to 16 percent in the third quarter of FY 2020. This translates into 72,856 more denials for families, employers, and others seeking to start the immigrant visa process.

Even if USCIS approves their family member’s petition, immigrant visa applicants must still receive approvals from DOS’s consular affairs. Unfortunately, DOS has not provided any data for denials in FY 2020, but even by FY 2019, the denial rate had again almost doubled from 13 percent to 21 percent. Assuming the denial rate in 2020 remains at least what it was in 2019 (and it will likely continue to climb), the Trump administration will have produced about 101,120 additional immigrant visa denials than would have occurred if the denial rate remained the same. These denials undoubtedly intimidated other applicants into choosing not to apply at all.


291,000 Fewer Refugees

The U.S. Refugee Admissions Program resettles refugees to the United States if they possess a well-founded fear of persecution based on a protected ground. Unlike immigrant visas, the most dramatic drop in refugee admissions occurred almost immediately upon President Trump taking office. As of September 2020, the number of refugee admissions had fallen by 67.5 percent compared to the average for 2016. We can be sure this low admissions rate will continue through January, indicating the United States will have admitted about 291,393 fewer refugees than would have come had the admissions stayed at 2016 levels.


246,000 Fewer Adjustments of Status to Permanent Residence

An adjustment of status application requests that USCIS adjust the applicant’s status legal permanent residence. It is an application filed by immigrants inside the United States in lieu of traveling abroad and obtaining an immigrant visa at a consulate. In normal years, about half of new permanent residents adjust their status in the United States. Unlike immigrant visas, only half of adjustments are family-based, while the rest are employment-based as well as refugees, asylees, and applicants in other humanitarian categories.

Figure 5 shows the number of approved adjustment of status applications by quarter. As of the third quarter of FY 2020 (March to June), the number of approvals had fallen by 56.2 percent compared to the average in FY 2016. Unlike immigrant visas and refugees, the drop started late in Trump’s term in the 4th quarter of FY 2019 and the major decline occurred in the third quarter of FY 2020. If the rate of approvals remains the same until January, about 246,313 fewer applicants will have received permanent residence under the Trump administration than would have received it had approvals remained at FY 2016 levels.

Like immigrant visas, the main cause of the decline in adjustments is that USCIS closed field offices and generally refused to waive in-person interviews during the pandemic, bottlenecking the process. However, another major contributor is increased USCIS denials—both of petitions (see Figure 2) and adjustment applications themselves (Figure 6). Despite adjustment approvals remaining as high as before, the denial rate has been higher in every quarter of the Trump administration than the average in FY 2016. The denial rate has increased almost threefold during the last four years. By January, there will likely end up being about 70,256 more denials of adjustments of status during the Trump years as there would have been had the denial rate remained at the 2016 rate.


287,000 Fewer Nonimmigrant Work and Cultural Exchange Visas

The United States permits foreign workers to enter the United States on nonimmigrant (temporary) visas—either work visas or cultural exchange visas—issued by DOS. Exchange visas allow the visa holder to work as part of the cultural experience, and nearly all choose to do so. The foreign workers’ spouses and minor children may join them in the United States as well. While temporary, nonimmigrants can often renew their statuses in the United States. In most cases, temporary workers (e.g., H-1B, H-2A, H-2B, L-1, etc.) may not enter the United States without USCIS approving an employer petition on their behalf.

Figure 7 shows the number of nonimmigrant work and cultural exchange visas issued by month. In general, work visa issuances were higher than they were in FY 2016 (monthly data are not available), but in October 2020, work and cultural exchange visa issuances were down 69 percent from October 2019, largely thanks to consulate closures and refusals to waive interviews by DOS. There would have been 287,003 more work and cultural exchange visas issued during the Trump presidency if the FY 2016 visa issuance rate continued.

Work visas grew before the pandemic because labor demand grew, not because USCIS or DOS adopted more favorable processing standards. From FY 2016 to FY 2019, DOS’s visa denial rate grew from 4.4 percent to 6.5 percent, causing 34,389 more denials than would have occurred without the increase. More dramatically, Figure 8 shows that the denial rate for employer petitions for nonimmigrant workers by USCIS more than doubled from 7 percent in FY 2016 to almost 15 percent at the midpoint of FY 2020. This translates into 113,000 additional denials of nonimmigrant workers.

These denials reflect a concerted effort by USCIS to make hiring foreign workers much more difficult. USCIS has also nearly doubled the rate at which issues “requests for evidence” (RFEs) in response to employers’ petitions. RFEs amount to an initial denial in which USCIS demands more evidence to support the petition. The USCIS Ombudsman has found on multiple occasions that USCIS commonly issues RFEs for information already provided or based on erroneous understandings of the law. Many lawyers assume that USCIS uses RFEs to delay having to adjudicate the application. These delays are always costly for employers but are particularly damaging for seasonal H-2 employers because the jobs are of a short, defined period.


96,000 More Denials of Asylum

Asylum provides refugee status to people who meet the refugee definition (well-founded fear of persecution based on protected class). Under the asylum statute, asylum applicants may apply for asylum anywhere in the United States. Asylum applicants are processed either as “affirmative” applications through USCIS or as “defensive” applications made as part of removal proceedings through the Justice Department. Defensive asylum applicants include those who crossed illegally to request asylum as well as those who applied at ports of entry—either at airports or the land border crossing points.

Defensive asylum grants increased under the Trump administration from 8,648 in FY 2016 to 14,507 in FY 2020, and affirmative asylum grants also initially increased from to 9,538 to 19,945 from FY 2016 to FY 2019, but so far in FY 2020, asylum grants have fallen back to almost to where they were in 2016 on pace for about 9,700. Once again, these increases reflect rising requests for asylum and greater processing of applications, not more favorable processing.

Figure 10 shows affirmative and defensive asylum denial rates by quarter. The defensive denial rate has more than doubled the average for FY 2016, and the affirmative denial rate has grown significantly as well. Three-quarters of affirmative asylum applications adjudicated by USCIS in FY 2020 were denied, compared to 57 percent in FY 2016. These increases produced 25,687 more affirmative asylum denials and 70,774 more defensive denials than would otherwise have occurred had the FY 2016 rates prevailed.

These statistics only reflect those whose applications made it to a final adjudication. Most defensive asylum applicants must first clear an initial screening by USCIS to identify if their stated fear of return is “credible.”

Figure 11 shows the credible fear denial rate for 2017 to 2020. Credible fear denials exploded when USCIS implemented its categorical ban on asylum for almost anyone who transited through another country before reaching the United States. A district court enjoined the policy on June 30, 2020 after which time credible fear was established at a higher rate (though a separate policy still allowed Border Patrol to remove those who crossed illegally). Overall, USCIS found credible fear in 28,545 fewer asylum cases than if it had maintained its 2016 average rate throughout Trump’s 4 years. Many more were persuaded to not even bother to apply.


698,000 Fewer International Students

Foreign students can travel to the United States to study and may also work before or after graduation under the Curricular Practical Training and Optional Practical Training programs. Their spouses and minor children also can travel and live with them. The number of international students on F or M visas crashed 75.5 percent from FY 2016 to FY 2020. The largest drop occurred in FY 2020 during the pandemic when the administration hesitated over allowing students to enter for online-only classes, and DOS closed consulates and refused to waive interviews. The United States saw 697,625 fewer student visa holders as a result of the declining visa issuances.


Nine Million Fewer Tourist and Business Traveler Visas

Foreigners can also come to the United States as tourists or business travelers on a B visa. Even before COVID-19, every month but one saw fewer tourist or business traveler visas issued than the monthly average in FY 2016. The average in the 12 months before the national emergency in March 2020 saw 21 percent fewer tourist and business traveler visas issued than in FY 2016 (Figure 13). As of October 2020, business and tourist visa issuances were down 92 percent compared with FY 2016. Overall, nearly 9.1 million fewer tourist and business traveler visas were issued during Trump’s four years than would have occurred if the FY 2016 rate had continued. The drop in tourism and travel in 2020 was caused both by traveler avoidance, other countries’ exit policies, President Trump’s entry bans, DOS’s consulate closures, and DOS’s refusal to issue interview waivers.


7 Million Pending Applicants

Beyond denials and fewer approvals stands an almost unfathomable backlog of 5.7 million applicants for immigration benefits at USCIS—everything from travel and work authorizations to adjustment to permanent residence to citizenship. Until 2017, the backlog of pending applicants was a little less than 2 times the quarterly number of new applications—with changes in the receipts reflected in changes in the backlog (Figure 14). But in 2017, the backlog spiraled out of control despite declining applications. As of the third quarter of 2020, the backlog is now 3.5 times the number of new applications. The Justice Department's immigration courts also have another 1.3 million pending cases, more than double the court backlog in FY 2016.

The USCIS and DOJ backlogs effectively deny immigrants and Americans their legal rights by delaying their ability to receive status, work, or travel authorization or preventing them from sponsoring their employees or family. According to USCIS, the average time that all pending USCIS applications have waited has grown from 4.7 to 7.3 months from FY 2016 to FY 2020—with the share waiting more than 7 months shooting up from 4.7 percent in FY 2016 to 50.2 percent in FY 2020. For example, adjustment of status (green card) applications increased from 6.8 to 11.4 months. This is just the average time that applications—including those recently filed have spent waiting—but the average time to actually finish adjudicating an application is much longer.


Conclusion

By taking FY 2016 as its baseline, this analysis fails to capture the lost opportunity that increased legal immigration would have brought over the last four years. Nonetheless, the numbers are clear that President Trump’s immigration policies have irreparably harmed millions of immigrants and Americans. But a new administration will need to go beyond simply reversing his policies to avoid having their effects felt for years to come. New policies would need to allow immigrants to reopen cases wrongfully denied and issue visas and status to them. They should streamline processing these applications to avoid further delaying others. If President Biden’s goal is to rectify the harm of the last four years, he must act boldly and aggressively to fix the numerous problems of his predecessor.