President Trump restricted legal immigration through a series of unprecedented regulations and presidential orders during his one term. Once President‐elect Joe Biden takes office, he will have the opportunity to reverse these actions and deregulate what is—and was even before Trump—an overly burdensome and expensive legal immigration system. This compendium of 30 concise proposals by 15 authors—including several of America’s leading immigration law experts—can help the Biden administration operate the immigration system as openly and efficiently as the laws allow.
These proposals focus entirely on agency measures to improve the process for legal immigrants. Keeping with Biden’s campaign theme of “building back better,” they look past simply repealing Trump’s misguided executive actions to instead create new, better rules for a fully recovered America. For this reason, these reforms do not address temporary actions needed only to address COVID-19 nor do they specifically focus on repealing regulations or orders promulgated during the Trump administration.
Congress would still need to pass better laws to eliminate many of the statutory restrictions that these agency actions only help ameliorate, but this compendium should serve as a blueprint for how a new administration can deregulate legal immigration to the fullest extent possible under the laws that exist today.
America’s legal immigration system is extremely restrictive compared with its past and with other developed countries today.1 These restrictions are mainly a result of statutes passed by Congress, but administrative regulations, policies, and executive orders have made immigration even more exclusionary than the law requires. Figure 1 shows how much President Trump by himself has closed off new immigration from abroad, reducing monthly immigrant visa approvals by more than 80 percent during his single term in office.2 Even before his pandemic‐related restrictions, the monthly average rate of immigration from abroad had declined by a third from fiscal years 2016 to 2019.3 The new president can reverse this trend and allow more legal immigration than before this sudden decline.
This compilation outlines an ambitious deregulatory agenda to permit more legal migration and legal employment within the confines of the restrictive laws that Congress has passed. The writers include previous presidents of the American Immigration Lawyers Association, editors or authors of the most widely used immigration law reference texts in the United States, a former administration official, and other well‐known immigration law experts. The proposals are organized into four sections: reforms affecting green card applicants on the path to permanent residence, reforms affecting nonimmigrants (visitors, students, and temporary workers), reforms affecting refugees, and, finally, big picture reforms affecting more than one category (Table 1). These improvements would move America toward a more open system that provides millions of people with legal options to immigrate, work, and live in the United States. Table 2 lists terms and definitions used in the recommendations.
1. Stop Counting Dependents against Immigrant Visa Limits
The Department of State (DOS) should stop counting derivative spouses and minor children of immigrant visa applicants against the immigrant visa limits.
In the Immigration Act of 1990, Congress limited the number of family‐based (FB), employment‐based (EB), and diversity immigrant visas or green cards that may be issued in a year.5 It allotted at least 226,000 to certain family members of U.S. citizens and legal permanent residents, 140,000 to employees of U.S. businesses, investors, and other beneficiaries of EB petitions, and 55,000 to diversity lottery winners.6 It separately authorized the “same status and order of consideration” for derivative spouses and minor children of these principal immigrants.7 While the caps explicitly apply to the principal applicant (e.g., the employee)—and no mention is made of the caps applying to derivatives8 —DOS still adopted an interpretation that derivatives do count against the caps.9 About 40 percent of the permanent residents admitted under these caps were derivatives in 2019 (Figure 2).10
Prior to 1990, the provision providing the “same status” to derivatives was explicitly subject to the cap,11 but in 1990, Congress moved that provision to its own subsection separate from the caps.12 DOS has insisted that because derivatives receive the “same status” (legal permanent residence) as the principal applicant, they are nonetheless subject to the same cap. But normally, whether immigrants are subject to a cap is based on the provision under which they receive status, not the type of status that they receive.13 Congress has repeatedly stated in laws passed since 1990 that derivatives receive status pursuant to or “under” their own separate provision, not the provisions subject to the caps.14
Indeed, in every other case where Congress has wanted spouses and minor children to count against a cap, it has explicitly indicated that outcome. For instance, the refugee statute has the exact structure whereby refugees are authorized for admission under a cap set by the president, and a separate provision states that spouses and minor children of refugees are authorized for admission. In this case, however, Congress expressly stated, “Upon the spouse’s or child’s admission to the United States, such admission shall be charged against the numerical limitation.“15 Because this language is absent for derivatives of FB and EB immigrants and diversity lottery winners, no provision of law counts them against the caps.
Congress even amended several other provisions of the 1990 act authorizing immigrant visas with the same structure to clarify that it wanted derivatives to count in those cases, but it did not do so for beneficiaries of FB and EB petitions and diversity lottery winners.16 In other contexts, Congress does explicitly exempt derivatives from certain caps but only where they would otherwise be subject to that cap.17 Since no provision of law subjects beneficiaries of FB and EB petitions and diversity lottery winners to the caps, there was no reason for Congress to have explicitly exempted them.
The administration also has a strong affirmative reason in the text to stop counting derivatives. The law also requires DOS to grant derivatives the “same order of consideration” as the primary applicant if “accompanying or following to join,” entitling them to receive status at the same time as the principal applicant or any time thereafter.18 But when derivatives count against the cap, DOS cannot guarantee that it will fulfill this legal requirement because the principal may receive status, then the cap is filled, and the derivatives miss the opportunity to receive the “same order of consideration.” Therefore, DOS cannot even fulfill the requirements of the statute itself without ending its illegal practice of counting derivatives.
It is not unprecedented for Congress to create a separate authorization for permanent residence apart from its primary “worldwide” immigration limits and for successive administrations to misinterpret its action. In 1966, Congress enacted the Cuban Adjustment Act (CAA), which granted permanent residence to Cuban refugees.19 The CAA was entirely silent about whether Cubans would count against the “worldwide” immigration limits that Congress updated in 1965, yet the Johnson administration decided to count them against the quotas in 1968 anyway, and the Nixon and Ford administrations continued the practice until 1977, when litigation forced the government to end the illegal counting policy.20
The Biden administration should similarly stop counting derivative spouses and minor children against the immigrant visa caps. Not counting derivatives would reduce the wait times for permanent residence, helping hundreds of thousands of immigrants and their families.
2. Recapture Unused Green Cards
Independent immigration policy advisor and former attorney advisor in the Office of the General Counsel at DHS.21
DOS should issue a memo announcing a one‐time recapture of certain immigrant visa cap numbers to redress prior agency failures to issue visas.
The Immigration Act of 1990 evidences Congress’s intent to avoid having family‐based (FB) and employment‐based (EB) immigrant visa cap numbers left unused.22 Specifically, Congress provided a variety of steps to ensure full cap usage: if DOS predicts that numbers will go unused in a category during a fiscal year, DOS must reallocate them to another category during the fiscal year,23 and in some cases numbers are allocated without regard to per country limits to avoid wasting them24 or can be counted against the per country limit of a spouse or parent.25 The law also requires DOS to recycle visas that are issued but that immigrants fail to use to enter.26 Numbers that are still unused at the end of the fiscal year are supposed to spill over to the other system in the next year (from FB to EB and vice versa).27
Despite this comprehensive scheme to avoid unused visas, over 220,000 EB and FB immigrant visa numbers under the Immigration Act of 1990 have never been utilized—primarily because of agency inaction and delays in the EB categories. These visa numbers are now lost forever because of a quirk in the formula to calculate the cap for the FB preference categories. The FB cap is equal to the base cap of 480,000 visas plus unused EB visas in the prior year, but the formula subtracts the number of immediate relatives (spouses, minor children, and parents of adult U.S. citizens who are not subject to any cap) in the prior year down to a floor of not less than 226,000 visas.
Unforeseeable to Congress when it developed the 1990 Act, there has been a vast increase in the number of immediate relatives. This has caused the formula to hit the 226,000 floor in all but one fiscal year since 1997, meaning that any unused EB green cards failed to raise the number of FB green cards at all the next year. Thus, whenever the agency failed to appropriately issue EB green cards within the fiscal year, the unused EB green cards have been incinerated rather than used in the next fiscal year by FB, contrary to the expectation of Congress. For example, in 2007, the formula was the base cap of 480,000 minus 591,938 immediate relatives.28 Since this equaled a negative number, the formula reverted to the floor of 226,000, and the 10,326 EB green cards that went unused in 2006 due to agency delays in issuing them were not added to the FB cap but rather were lost forever (Figure 3).
As Figure 3 shows, Congress has recaptured some lost green cards through legislation.29 But the State Department has independent authority to recapture any unused green cards in cases where agency inaction caused them to be permanently lost, violating Congress’s intent that all numbers be used.
Between 1968 and 1976, immigrants from Western Hemisphere countries faced longer wait times because the government incorrectly charged Cuban refugees to the Western Hemisphere limitation. In response to a lawsuit, the government conceded that it had committed an error and entered into a stipulated agreement to recapture the visa numbers for two plaintiffs.30 The government then openly acknowledged its error, recaptured over 140,000 visas from prior fiscal years on its own authority, and issued them to other immigrants who were caught in the Western Hemisphere backlog. In a subsequent class action to determine the proper recapture method, the court, the plaintiffs, and the government all “agree[d] that relief, in the form of a program to recapture and reissue the wrongfully issued visa numbers, is appropriate.“31
In other words, some federal courts32 and the government have already acknowledged and exercised the authority to rectify a government failure to issue green cards in a timely manner in accordance with the laws and intent of Congress. The State Department should use this legal authority to recapture green cards in cases where its actions failed to make them available in accordance with the law.
3. Don’t Limit Green Card Filings When the Cap Is Unfilled
DOS should determine that visas are available for purposes of filing adjustment of status applications so long as the green card cap has not been fully exhausted.34
Low caps mean that beneficiaries of family‐based (FB) and employment‐based (EB) petitions often wait in backlogs for many years before they can receive immigrant visas or green cards.35 Table 3 shows how the waits have grown for immigrants who became eligible to receive green cards in prior years for the two types of immigrants with the longest waits in the EB and FB systems. Immigrants who are still waiting for green cards in these categories will have to wait even longer because such a large backlog has developed.
While the caps only limit green card approvals, DOS and U.S. Citizenship and Immigration Services (USCIS) also limit the filing of applications by these backlogged immigrants.36 This is harmful because simply filing an adjustment of status application provides significant benefits to those waiting in the United States, such as allowing them to travel internationally without losing their place in line, to obtain an employment authorization document that allows them to work, and—if they are already working—to more easily change jobs.37 If the applicants have a temporary status that will soon expire, filing also places them in a period of authorized stay until they receive their green cards.38
USCIS’s and DOS’s stated reason for limiting filings is that the law allows the filing of an adjustment of status application only when a cap number is “immediately available” to the applicant.39 USCIS relies on DOS to decide when cap numbers are available. DOS has always interpreted the law to require only an estimate of potential availability, allowing applications that may or may not actually receive green cards that year, depending on how many applicants file, how many derivatives they have, how many denials are issued, and other factors.40 In one case in 2007, DOS’s decision on availability allowed filings that took more than a decade for USCIS to be able to approve under the caps.41
This outcome and DOS’s other policies demonstrate that what matters to DOS in its interpretation of the law is only the possibility that applicants could receive a green card, not certainty that they will.42 The problem is that DOS interprets “possibility” narrowly to mean what it believes is likely at the time. But the law does not require DOS to predict the future and guess whether all immigrants filing applications ahead of the applicant will be approved and receive green cards that year. Instead, the law only requires that cap space be “immediately available” if it could potentially go to the applicant, regardless of whether that outcome is probable in some statistical sense.
Workers and families should be able to file adjustment of status applications so long as there is at least some cap space available, which would occur, at a minimum, at the start of every fiscal year. DOS could even preserve one visa in each preference category to keep filings open throughout the year.43 Because USCIS relies on DOS’s determination on availability, DOS could accomplish this unilaterally without formally amending its regulation—which does not specifically prevent this interpretation—but it would be prudent to adopt a regulation to codify the change regardless.44
4. Parole for the Immigrant Visa Backlog
USCIS should create a parole program for beneficiaries of family‐based (FB) and employment‐based (EB) petitions when the visa caps prevent the immediate issuance of an immigrant visa.46
The low caps on immigration have created an FB backlog of 3.5 million family‐sponsored immigrants and an EB backlog of 125,000 employees, investors, and their families who are waiting for a visa abroad.47 USCIS should grant parole to these backlogged applicants to allow them to enter the United States. Congress has explicitly granted authority to the Secretary of Homeland Security to issue parole documents based on “urgent humanitarian reasons or significant public benefit.”48 The Secretary can expand the interpretation of “urgent humanitarian need” to include the reunion of families who have an approved immigrant visa petition but who are waiting for visas to become available. Simultaneously, USCIS can define “significant public benefit” to include beneficiaries of EB immigrant petitions.
Once family‐sponsored petition beneficiaries receive parole, they can also apply for an employment authorization document that would allow them to work legally in the United States.49 Beneficiaries of family‐sponsored immigrant visa petitions can adjust status to legal permanent residence in the United States after receiving parole, so they may wait in the United States until visa numbers become available.50 Due to a quirk in the law, parolees cannot adjust on EB grounds, but EB beneficiaries could depart the United States for consular processing of their immigrant visas once visas become available for them.51
USCIS has already created similar programs to parole backlogged family‐sponsored immigrants from Haiti and Cuba as well as for backlogged family of World War II veterans from the Philippines.52 USCIS also issued a rule that—though never implemented—deemed parole a “significant public benefit” for entrepreneurs, many of whom would have come from the EB backlog.53 A parole program could alleviate the hardship of many families and generate economic growth through new investment and productivity of U.S. companies.
When the visa caps prevent the immediate issuance of an immigrant visa, USCIS should grant parole to beneficiaries of FB and EB petitions.
5. Stop Aging Out of Older Children by Using the Filing Date
USCIS should prevent older children of family‐based (FB) or employment‐based (EB) immigrants from aging out of green card eligibility by using the dates for filing (DFFs) to determine their age.55
Green card applicants in the capped FB and EB categories wait for a visa number to become available under the caps after USCIS approves a petition on their behalf (usually submitted by a family member or employer). USCIS informs these applicants when they can file green card applications with the DFFs in the monthly Visa Bulletin.56 USCIS separately informs immigrants of the earliest times that it will approve those applications with a set of later dates known as the final action dates (FADs). Children of these immigrants under the age of 21 can file along with their parents under the DFFs.57 But USCIS will only approve a child’s application if the child was still under the age of 21 when the child first could have received a green card under the FAD. USCIS credits children for the time that USCIS took to process the initial petition for their parent,58 but even still, many children age out of eligibility between filing under the DFFs and being able to receive approvals under the FADs.
The law permits the filing of a green card application only when “an immigrant visa is immediately available” under the caps.59 USCIS is already interpreting the word “available” to include dates (the DFFs) ahead of when a green card is actually to be issued (the FADs). Meanwhile, the Child Status Protection Act (CSPA) requires that when determining whether the child is “under 21,” USCIS must use the age of a child applicant on “the date on which an immigrant visa number becomes available”—nearly identical wording.60
Therefore, when filing, USCIS interprets “available” to mean the earlier date (the DFF), but when deciding the child’s age, USCIS interprets “available” to mean the later date (the FAD). This reasoning is inconsistent and causes many children to lose eligibility for a green card when they turn 21 between the DFF and the FAD, which can be nearly five years apart.61 USCIS should end this policy by allowing CSPA protection based on the DFF.62 Similarly, when a person is applying for an immigrant visa at a U.S. consulate abroad, the State Department should use the same interpretation by allowing CSPA protection based on the DFF.63
6. Parole the Children of H-1B Workers Who Age Out
USCIS should issue a policy memorandum creating a parole program for children of H-1B skilled workers who lose their derivative status when they turn 21.
Skilled immigrants typically first work in the United States under the H-1B program, which entitles their spouses and children under the age of 21 to H-4 status.65 After the workers start the job, employers sponsor them for green cards, and the entire family waits for permanent residence together. Between waiting for employer sponsorship and waiting for green cards to become available under the low numerical caps, many immigrants—nearly all from India—spend between 10 and 20 years in H-1B, H-4, or other temporary statuses.
During this process, children often spend their most formative years in the United States in H-4 status. Yet when they reach age 21—and the parent still has not been able to apply for a green card because of the scarcity of green cards under the caps—they lose eligibility for both H-4 status and the ability to receive green cards as dependents of their parents.66 This leaves young adults without a legal status even though they followed the law, were educated in U.S. schools, and consider themselves culturally American. They must try to find another temporary status, leave the country altogether, or live in the country illegally. About 155,000 children of Indian employer‐sponsored immigrants were in the green card backlog in 2020—a majority are likely to age out without receiving green cards.67
USCIS should create a parole program for children of temporary visa holders who “age out” of H-4 status through a policy memorandum. Congress has granted USCIS clear authority to “parole into the United States” noncitizens “for urgent humanitarian reasons or for significant public benefit.“68 This authority effectively allows USCIS discretion to waive the normal limits on entry. USCIS has repeatedly used this authority to create parole programs for other groups,69 and Congress has explicitly recognized parole for certain groups as a valid use of the parole power in 2020.70
A Significant Public Benefit Parole program for aging‐out H‐4s would keep talented young people in the United States. Parole cannot be granted to someone already legally admitted to the United States, so this would require the aging out applicant to briefly leave the country or visit a port of entry to receive parole, although they could apply and be approved in advance.71 After that, these talented young people would be able to finish college and continue the lives they have established here with their families. Parolees may also receive employment authorization,72 allowing them to start careers and reach their full economic potential, which would substantially benefit the United States. For these reasons, USCIS should issue a policy memorandum to create a parole program for children of H-1B skilled workers who lose their derivative status when they turn 21.
7. Expand USCIS Interview Waivers
USCIS should issue a policy memorandum allowing adjudicators to waive a field office interview for all applicants for any visa type or category of adjustment of status.
The interview requirement is costly for both the applicants and the agency, so it should be used only when the documentary evidence is inconclusive. The interview can increase the processing time from less than a year to more than two years in some areas of the country.74 As a result, a backlog of nearly 600,000 applications for adjustment of status to permanent residence has developed—a nearly fourfold increase since 2010 (Figure 4).75 Interview delays hurt U.S. sponsors, prolong the immigrant’s path to citizenship, and disrupt family reunification.76
USCIS generally empowers its adjudicators to waive interviews for unmarried minor children of U.S. citizens, parents of U.S. citizens, and legal permanent residents’ unmarried children under the age of 14.77 The waiver authority enables career staff with expertise to allocate their limited resources only to those cases they believe merit closer scrutiny. But USCIS extends only extremely limited discretion to waive interviews for spouses, fiancé(e)s, older or adult children, employees of U.S. businesses, investors, asylees and refugees (including those petitioning for their family abroad), and others.78 USCIS maintains this policy and has expanded it in recent years even though various agencies including USCIS itself commonly interview these individuals in person at other times, such as when they initially applied for temporary visas abroad or other statuses in the United States.
Because the existing regulation allows interviews to be waived “when it is determined by the Service that an interview is unnecessary,“79 this change to expand the list of categories not requiring an interview would only require a policy memorandum without the lengthy process of amending a regulation. Thus, USCIS should issue a policy memorandum that allows adjudicators to waive an adjustment of status interview for applicants in any green card category.
8. Deem a Grant of Temporary Protected Status an Admission
USCIS should recognize a grant of temporary protected status (TPS) as an “admission” to allow TPS recipients who are otherwise eligible for green cards to adjust to legal permanent residence.
Congress created TPS to allow USCIS to grant a temporary, renewable status and employment authorization in circumstances in which forcing temporary residents, foreign visitors, or immigrants with no status to leave is inhumane due to temporary problems in their home countries.82 Protracted crises and multiple extensions have resulted in hundreds of thousands of immigrants living in the United States with TPS for many years (Table 4).83 Many have married U.S. citizen spouses or have adult U.S.-born children who have sponsored or could sponsor them for green cards.
The law only allows someone who was “inspected and admitted or paroled into the United States” to adjust his or her status to legal permanent residence.84 For immigrants who entered without inspection, this can pose a problem. But TPS should cure this defect because the statute clearly states that “for purposes of adjustment of status … the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant”—clearly indicating that Congress wanted TPS recipients to be able to adjust.85 Moreover, since the law also repeatedly characterizes all nonimmigrants as being “admitted,” the Ninth, Sixth, and Eighth Circuit Courts of Appeals have concluded that USCIS’s policy of denying green cards to TPS recipients based on the lack of an “admission” is unlawful.86
Yet USCIS continues to maintain this policy outside of those courts’ jurisdictions.87 The Third, Fifth, and Eleventh Circuits have ruled that USCIS’s current interpretation is more consistent with the law mainly because the statute never explicitly describes a grant of TPS as an admission,88 but because the Supreme Court and the other circuits have not decided the issue, USCIS still has leeway to adopt a new policy at least outside those courts’ jurisdictions. The policy harms legal immigrants and contradicts the intent of the law. USCIS should rescind it via policy memorandum and later regulation. The Department of Justice should adopt the same view and begin recognizing a grant of TPS as an admission wherever it can.89
9. Eliminate Bars to Entrepreneurial Self‐Sponsorship
The Department of Labor (DOL) should affirm that an owner of a company is legally distinct from the company itself and should define entrepreneurship as a Schedule A occupation not needing a labor certification. USCIS should rescind its currently enjoined H-1B interim final rule, which restricts self‐sponsorship by owners, and the Justice Department should stop defending it.91
Even though immigrants are disproportionately likely to start businesses or be self‐employed,92 DOL and USCIS make it all but impossible for immigrant entrepreneurs to establish companies that can sponsor the entrepreneurs for green cards or other work visas, a prohibition that hampers job creation and entrepreneurship. The law requires employers sponsoring most foreign workers for green cards to first obtain a permanent labor certification from DOL that finds no qualified U.S. workers were available for the position.93 But DOL can pre‐certify certain jobs as Schedule A occupations if no harm to U.S. workers would result from them being filled without a rigorous and time‐intensive labor market test.94 A job that was created through a foreign worker’s commercially reasonable investment should automatically qualify as such a job.
DOL has also created a strong presumption against granting a labor certification in situations where there is any “alien influence and control over the job opportunity” on the dubious assumption that no job opportunity can be “bona fide” if the sponsored immigrant has any significant ownership role in the company.95 DOL should rescind this regulation and formally recognize the distinction between the corporate entity and the owner of the company. These changes would allow immigrant entrepreneurs to start businesses and have those businesses sponsor them for green cards.
Unlike DOL, USCIS claims to respect the centuries‐old distinction between a corporate entity and the owner of that entity, yet USCIS still makes it difficult for entrepreneurs to have their companies sponsor themselves for nonimmigrant visas (e.g., H-1B and O visas). In 2010, USCIS announced that self‐employed workers could not receive nonimmigrant work visas because a company they own cannot possibly “employ” them as the law requires—a conclusion that flouts its own binding and well‐settled legal precedents.96 While litigation forced USCIS to rescind this policy in 2020,97 it is currently attempting to place this standard into its H-1B regulations in a rule that a federal district court enjoined in December 2020.98 USCIS should rescind the rule—and the Justice Department should cease defending it—to allow immigrant entrepreneurs to have their companies more easily sponsor them. Once the rule is rescinded, USCIS should explicitly recognize eligibility to grant employment‐based immigration benefits to entrepreneurs.99
10. Grant Special Handling for STEM Grad Labor Certifications
Independent immigration policy advisor and former attorney advisor in the Office of the General Counsel at DHS100
DOL should allow employers to obtain permanent labor certifications for foreign workers with U.S. master’s degrees or PhDs in science, technology, engineering, and mathematics (STEM) fields using prior competitive recruitment showing that the individual hired was the best qualified.
The law requires employers sponsoring foreign workers for green cards to first obtain a permanent labor certification from DOL that finds that there are no “workers who are able, willing, qualified (or equally qualified in the case of … an alien who is (I) a member of the teaching profession or (II) has exceptional ability in the sciences or the arts).“101 The typical finding requires an employer to show that U.S. workers were not available who satisfy the minimum requirements for the job, while the special handling process requires the employer to document no equally qualified U.S. worker is available (that the candidate hired is the best qualified) based on the employer’s real‐world recruitment efforts. When DOL processes applications under the special handling standard, employers prove their inability to find U.S. workers by showing that they used a competitive recruitment and selection process of their own design to find the job candidate in the last 18 months.102
Special handling benefits employers and the integrity of the system because, in almost all cases, the employers have already hired the workers on temporary work visas like the H-1B, so their recruitment is already complete.103 DOL requires all other employers to fully restart recruiting and interviewing with expensive and antiquated procedures that DOL lays out in extensive detail.104 The purpose of restarting recruitment is to show that if a job offering fair wages were open, no even minimally qualified U.S. applicant would be available, but the jobs are not open, and, by law, employers are not required to hire U.S. applicants, so the entire exercise is theatrical, not practical. Despite the statute, DOL has never defined “exceptional ability in the sciences” for the purpose of applying the special handling’s equally qualified standard, so only colleges benefit from these procedures for professors, not any other skilled workers.105
DOL should implement the statute and amend its regulation to define exceptional ability to include graduates of U.S. STEM master’s and PhD programs. While certifications for these workers are almost always approved eventually,106 allowing special handling would save considerable unnecessary expenses for businesses, encourage them to apply for green cards for the employees who are typically on temporary statuses, and promote maintaining business operations in the United States.
11. Expand Schedule A for STEM graduates
Independent immigration policy advisor and former attorney advisor in the Office of the General Counsel at DHS107
DOL should designate U.S. STEM graduates in occupational categories with low unemployment rates as well as highly paid U.S. advanced degree holders as Schedule A occupations not requiring individualized labor certifications.
Employers seeking to sponsor foreign workers for permanent residence must receive a permanent labor certification from DOL.108 DOL typically requires extensive recruitment, interviewing, and documentation.109 However, DOL provides an exception to these requirements with its Schedule A designations. For Schedule A, DOL pre‐certifies certain jobs in which it determines that hires will not adversely affect U.S. workers and that there are insufficient U.S. workers “able, willing, qualified, and available.“110 DOL has two groups of Schedule A jobs. Group I is for “shortage” occupations in which there is a scarcity of United States workers, and Group II is for aliens who possess “exceptional ability.“111 Since Schedule A workers are inherently in short supply, these employers do not need to apply to DOL at all to receive certification.112
DOL should update its regulations to add graduates of U.S. STEM programs in occupational categories with low national and state unemployment rates to Schedule A Group I.113 DOL should also update its definition of exceptional ability in Group II to include individuals paid both above the median for their occupation and more than 200 percent of the national median household income.114 DOL almost never denies individualized labor certifications for these two types of workers anyway,115 so the application process is a huge drag on the system without any corresponding benefit. The process imposes unnecessary costs on both the agency and the government, and it pointlessly delays the receipt of legal permanent residence for the highest skilled workers that the government should want to encourage to stay in the United States.
12. Update Schedule A with New Data
Research assistant for Science, Technology, and Innovation Policy at the Federation of American Scientists.116
DOL should regularly update the Schedule A shortage occupation list using U.S. labor market data.
Employers hiring in Schedule A occupations may more easily bring foreign workers permanently to the United States to fill those jobs because they do not have to prove there are not enough U.S. workers who are “able, willing, qualified, and available to accept the job opportunity.”117 This designation shortens the certification process by at least seven months.118 Despite its promise, Schedule A has not been updated in 30 years and currently includes only physical therapists and nurses.
DOL should model its own approach after the United Kingdom’s Shortage Occupation List (SOL), a data‐driven index reviewed and updated frequently by the independent Migration Advisory Committee.119 The SOL is like Schedule A in that it gives employers a fast‐tracked process to hire skilled foreign workers and reduces application barriers, like cost, for those workers. However, the SOL is backed by a detailed and transparent set of economic indicators to determine whether labor is scarce in an occupation. Schedule A would make the most impact if it included a similar set of indicators and regularly reviewed occupations in which an inadequate supply of workers can have significant national consequences, such as artificial intelligence.120
13. Recapture Unused H-1B Visas
Independent immigration policy advisor and former attorney advisor in the Office of the General Counsel at DHS121
The Department of Homeland Security (DHS) should issue a policy memorandum to implement its existing regulation to recapture unused H-1B visas.
If USCIS approves an employer’s petition to hire an H-1B skilled specialty worker, USCIS counts the worker against the annual H-1B visa cap set by Congress. After an approval, some workers fail to receive H-1B status (because employers decide not to hire them, workers take different jobs, or other reasons). In those cases, USCIS regulations require that employers notify USCIS if a petition goes unused and that the agency revoke the petition and “take into account the unused number during the appropriate fiscal year.”122
While USCIS does account for “historical data related to approvals, denials, revocations, and other relevant factors” to estimate how many petitions are needed above the cap in order to ultimately fill it,123 these data do not include unused approved visa petitions, because they are never revoked. This is because USCIS’s use‐it‐or‐lose‐it regulation has no deadline by which employers must report an unused cap number, includes no enforcement mechanism if they fail to, and has not been implemented with clarifying policy guidance. As a result, H-1B visas regularly go unused, employers fail to report that they never used them, and USCIS never reallocates them to other employers.
DHS should issue a policy memorandum clarifying that (1) notification must occur if the H-1B nonimmigrant fails to be admitted within 180 days; (2) the “appropriate fiscal year” is the year that the petition is revoked; (3) U.S. Customs and Border Protection must share information with USCIS to allow it to identify and confirm which H-1B petitions were not used to secure initial H-1B status; and (4) USCIS must revoke those unused petitions (after notifying and letting the employer challenge the determination that they were unused).124
14. Let the Family Members of All Guest Workers Work
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.125
USCIS should allow all derivatives of temporary workers to work.
Hundreds of thousands of temporary workers’ spouses and children under the age of 21 enter to live in the United States in derivative statuses—that is, statuses that depend on their spouse’s or parent’s temporary worker status.126 In recent years, the number of derivatives has greatly increased (Figure 5). In some categories, the law explicitly requires USCIS to authorize spouses of these workers to find jobs,127 but USCIS has generally declined to authorize employment for other derivatives in those categories without this explicit requirement, despite clear statutory authority to do so.128
USCIS has frequently used its power to authorize employment for many groups of noncitizens,129 but the only derivatives who have benefited from its use so far are H-4 spouses of H-1B workers who are going through the green card process.130 USCIS has denied jobs to all other spouses and children of temporary workers not specifically authorized by Congress. It makes little sense to have foreigners residing in the United States under programs designed to enhance economic growth but who are banned from working. For that reason, USCIS should authorize all spouses and children of foreign workers to work.
While USCIS has the authority to authorize employment without restrictions, it has adopted a heavy‐handed, protectionist approach for H-2A agricultural and H-2B nonagricultural workers. If USCIS decided it could not issue unfettered employment authorization to spouses and children of H-2 visa holders consistent with its existing policies, it should at least allow them to work at H-2 jobs certified by DOL as jobs for which U.S. workers are not available. Since the H-2B cap for seasonal nonagricultural jobs is so quickly filled, it is likely that employers would hire spouses to fill these otherwise open jobs because the law exempts spouses and children from the cap.131 Most H-2 workers do not bring their families, because it is too expensive to do so when they cannot work, so authorizing employment would reduce family separation and incentivize immigrants to wait for H-2 sponsorship rather than cross the border illegally to find jobs immediately.
By allowing all spouses and children of temporary workers to fill open jobs in the United States, USCIS would greatly increase the economic benefits of all temporary worker programs.
15. Allow Visa Reissuance in the United States
DOS should reinstate its prior practice of visa reissuance at its office in Washington, DC, rather than requiring nonimmigrants to travel to consulates abroad to renew their visas.
Until 2004, nonimmigrants admitted with C, E, H, I, L, O, and P visas could get their temporary visas reissued when they expired by mailing their passports to the DOS main office in Washington, DC.133 DOS discontinued this policy in 2004 because Congress required U.S. visas to contain biometric identifiers, and DOS stated that it was “not feasible for the Department to collect the biometric identifiers in the United States” at that time.134 Nonetheless, DOS continued to provide visa reissuance for A, G, and NATO nonimmigrants.
This decision forced many nonimmigrants already approved to work in the United States to travel to U.S. consulates abroad to receive a visa enabling them to travel internationally and created a surge of demand for consular services across the border in Canada.135 Having to travel overseas to renew a visa involves significant costs related to work disruption and travel expenses and introduces more uncertainty in the outcome. Domestic visa reissuance would avoid those costs and lessen the uncertainties. It would also reduce the workload at U.S. consular posts overseas.
In 2008, a DHS advisory committee recommended restarting the visa reissuance policy for the E, H, I, L, O, and P nonimmigrant visa categories and expanding it to include F and J nonimmigrants, noting that “numerous options exist for taking fingerprints domestically” if necessary and arguing that a “convincing business and security case has not been made for the continued suspension.“136 Security is not a real concern for most visa reissuance cases since DOS vetted the applicants when they received their original visa.
DOS should resume visa reissuance in the United States for, at a minimum, the same categories it had previously allowed. This could be accomplished without amending its regulations, which already allow for reissuance in the United States for E, H, I, L, O, and P nonimmigrants.137
16. Grant Duration of Status to Nonimmigrant Derivatives
DHS should amend its regulations to admit the derivative spouses and minor children of principal nonimmigrants for the duration of status (D/S) of the principal nonimmigrant rather than requiring separate renewals.
Derivative spouses and children in E,139 H-4, L-2, O-3, P-4, R-2, and TD dependent nonimmigrant statuses are often long‐term residents of the United States whose status periodically expires with that of their principal nonimmigrant spouse or parent. Extensions require separate applications with separate fees—$455 plus an $85 biometric screening fee—adding administrative complexity for no benefit.140 USCIS routinely extends their derivative status, provided it approves the underlying principal nonimmigrant’s application and the family relationship continues to exist. They are effectively being admitted indefinitely, except for the mandate to repeatedly file extensions of status. These extensions add tens of thousands of applications to USCIS’s workload.141
DHS should not require extensions and should admit these derivatives for the duration of the principal’s status and the qualifying family relationship.142 For decades, DHS has admitted students and exchange visitors,143 foreign media,144 diplomats, and their derivatives for D/S without a specified end date.145 Students, for example, are admitted for however long it takes to complete one or more courses of study. In late 2020, DHS proposed withdrawing D/S admissions from the first two of these classes on the basis of a phantom need for continual verification of the eligibility of students and journalists.146 But in this case, DHS could verify derivative relationships as part of the principal nonimmigrant’s application, saving time and money for DHS and the applicants.147
17. Let L-2 and E Spouses Work without an Employment Authorization Document
USCIS should expressly authorize employment for L-2 and E spouses without requiring the spouse to apply for an employment authorization document.
The L-1 visa category allows multinational companies to transfer certain skilled foreign employees to the United States, such as managers, executives, and skilled workers with specialized knowledge. The E visa allows similar categories of foreign nationals from countries where the United States has “a treaty of commerce and navigation” to carry out substantial trade (E-1), develop and direct the operations of a business (E-2), or perform services in a specialty occupation if from Australia (E-3). The law entitles the spouses of these workers to derivative status,149 and it requires that USCIS “authorize the alien spouse to engage in employment in the United States and provide the spouse with an ‘employment authorized’ endorsement or other appropriate work permit.”150
This statute clearly requires that, while USCIS must separately issue a “work permit,” the agency must authorize E and L-2 spouses to work whenever they are in the United States without such a permit. The Social Security Administration (SSA) recognizes their eligibility for employment incident status—that is, based on their admission as an L-2 or E spouse. SSA issues a Social Security card “valid for work only with specific DHS authorization.”151 An admission stamp entered into the passport of an E or L-2 spouse with a handwritten notation showing a period of authorized stay by a DHS border inspector should suffice as a DHS authorization.152
USCIS seems also to adopt the view that E or L-2 employment is authorized as an inherent attribute of spousal derivative status. Its approval notices for L-2 and E spouses refer to USCIS’s regulation that lists noncitizens authorized to accept employment “incident to status.”153 Yet the regulation itself does not actually include L-2 or E spouses.154 Moreover, USCIS’s Handbook for Employers (M-274) implies that L-2 and E spousal status does not suffice to prove employment authorization.155 USCIS should modify its regulations so that individuals are authorized for employment based on their spousal relationship and thus do not appear to violate their status or lose eligibility to change or adjust their status by working as the statute allows.
Agency action is also necessary because as long as the USCIS’s M-274 Handbook for Employers is left unchanged, the Justice Department’s Immigrant and Employee Rights (IER) unit could penalize employers who follow it.156 Employers that decline to accept an unexpired foreign passport containing an L-2 or E dependent’s entry stamp issued by DHS would be engaging in “unfair documentary practices” related to verifying the employment eligibility of employees. The IER states that “when verifying a workers’ employment authorization, employers … are not allowed to demand more or different documents than necessary” to verify identity and employment eligibility.157 With the backing of SSA’s interpretation, L-2 or E derivative spouses would have a claim of unfair documentary practices if an employer rejected them for failing to produce a USCIS employment authorization document. Thus, by policy memorandum and later by regulation, USCIS should conform its interpretation to that of the SSA and explicitly provide L-2 and E spouses employment authorization incident to their status.
18. Automatically Approve H-2 Unnamed Petitions
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.158
USCIS should defer to DOL’s determination of whether an H-2A or H-2B job is “temporary” and automatically approve all H-2 petitions without substantive review if the employer plans to name the specific worker only at the consulate abroad.
H-2A agricultural or H-2B nonagricultural employers must receive a temporary labor certification from DOL showing that no qualified U.S. workers are available for the job. As part of its review, DOL first determines whether the job is “temporary” based on employer‐provided evidence like payroll and tax documents.159 If DOL certifies the job, employers file a petition requesting USCIS grant status to the workers. USCIS has chosen to again conduct a second review to determine whether the job is temporary, sometimes requiring different evidence from DOL.160
USCIS’s second review is burdensome and unnecessary. Even though USCIS approved 99 percent of petitions, it issued requests for evidence (RFEs) to 17 percent of H-2B employers and 10 percent of H-2A employers in 2020.161 The USCIS Ombudsman has found numerous cases of USCIS adjudicators issuing RFEs for already‐submitted evidence or evidence for issues that are legally irrelevant.162 The Ombudsman has said that “delays at any point in the process can have severe economic consequences for U.S. employers” exactly because the work is short‐term and time‐sensitive.163 USCIS should amend its regulations to defer to DOL to determine whether an H-2 job is temporary.
Employers must also attest to USCIS that they did not receive any fees that H-2 workers paid to get the job in prior years (or documenting that it has repaid any such fees).164 USCIS should also allow DOL to enforce this requirement at the labor certification stage for unnamed petitions because its regulations also contain the same prohibition on job placement fees.165 Employers do not need to list the specific names of the workers they plan to hire on “unnamed” USCIS petitions, so after deferring to DOL on these issues, USCIS has no further need to substantively review the petition.
Thus, once DOL approves an H-2 labor certification, USCIS should automatically approve all unnamed H-2 petitions without any review. DOL should have employers state on the labor certification whether they plan to file an unnamed petition on its labor certification, collect any information necessary for USCIS, and forward any such approved labor certification directly to USCIS. USCIS then can immediately and automatically approve the petition and forward the approval to the consular affairs and the employer.166
Automatically approving unnamed H-2 petitions would save employers time and money, preserve agency resources, and reduce the usual H-2 filing fees.
19. Certify H-2 Jobs for up to Three Years
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.167
DOL should certify H-2A and H-2B recurring jobs for up to three years.
H-2A agricultural and H-2B nonagricultural employers almost always need workers to return annually to perform the same job.168 Employers hire for a season, and they bring back the same H-2 workers seasonally year after year. To employers, these “returning workers” are just existing employees who have taken a seasonal hiatus.169 Yet USCIS and DOL refuse to recognize this basic business reality, so they only certify H-2 recurring jobs for a single season,170 require re‐advertising the position every year,171 and prohibit advertising the job only to those who commit to return for additional years.172 This means repeatedly following a process that costs thousands of dollars, often delays H-2 workers’ entries until after the date of need, and rarely ever turns up any U.S. workers.173 Such pointless costs incentivize other employers to hire illegally.
USCIS and DOL should amend their regulations to allow employers to advertise only to those workers who commit to return each season and certify the recurring job for up to three years. Nothing in the law requires H-2 labor certifications every year. While the employer’s “need” must be “temporary,” the H-2B regulations already recognize that for most employers, “the underlying job is permanent,”174 and this is acceptable so long as the employer’s “need” is still temporary, implicitly within a given year.175 Moreover, for both H-2A and H-2B programs, DOL requires employers to prove that the employer’s needs recur annually (i.e., are permanent) unless the temporary job is based on a one‐time or intermittent need, acknowledging the same fact.176
With three‐year certifications, Americans would still have a chance to take the job every three years,177 and the knowledge that the job is more than just for the one season could even induce a few more U.S. workers to apply. Three years would match USCIS’s existing three‐year limit on continuous H-2B and H-2A status in the United States178 as well as USCIS and DOL’s (rarely used) limit on H-2B approvals based on a temporary, one‐time need of three continuous years.179 Both limits are not found in the law and are arbitrary, but it is logical to at least harmonize these existing periods with the regularity of DOL’s labor certification requirement.
Beyond the regulatory relief, this action would provide more visas under the H-2B annual cap of 66,000 visas.180 Because DOL’s labor certification indirectly determines the validity period of the visa under DOS’s existing regulations,181 workers with H-2B recurring positions certified for three years would receive three‐year visas, so they would not need a new one each year, freeing up visas for other workers.182 With more cap space, almost all H-2B jobs would be filled, increasing economic growth. Moreover, few policies have reduced illegal immigration from Mexico more than expanding visas for seasonal Mexican workers (Figure 6). DOL should certify H-2 recurring jobs for up to three years, effectively exempting those returning to the same job from DOL’s labor certification process and the H-2B cap for two years.
20. Extend OPT for Health Science Professionals
USCIS should add nurses, physicians, and other health science professionals to the list of occupations eligible for a 24‐month employment authorization extension under Optional Practical Training (OPT).
OPT has existed in some form since 1947 to provide employment authorization to international students, allowing them to obtain on‐the‐job training and experience at U.S. companies after graduation.184 DHS relies on its congressionally recognized authority to authorize employment to any noncitizen.185 DHS authorizes 12 months of initial OPT to all foreign graduates and 24 months of additional OPT employment authorization for graduates with STEM degrees.186 However, it defines “science” narrowly to include only biological or physical sciences.187
In proposing the 24‐month extension, DHS noted that “more than one in eight STEM graduates were working in healthcare (including 594,000 who were working as physicians),”188 yet despite this acknowledgment, it chose not to include these health science professionals within its definition of STEM.189 This causes foreign doctors, nurses, and other health science professionals to lose out on two additional years of employment authorization after graduation, forcing many of them home.
In light of that fact, USCIS should define “science” to include health science professionals, including physicians, nurses, surgeons, and anyone else who is applying scientific knowledge to improve the health of Americans.190 Taking this action makes even more sense in light of the COVID-19 pandemic. Congress has also proposed a number of bills over the years designed to provide paths to temporary and permanent residency for STEM professionals, and the bills often refer to the same STEM occupation list used for OPT.191 Rectifying this issue for F-1 students will hopefully also ensure that should STEM immigration legislation pass, health care workers are not ignored there either.
21. Extend OPT for Foreign Graduates Sponsored for Green Cards
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.192
DHS should issue OPT extensions to every international student sponsored for a green card.
Nearly all foreign graduates of U.S. universities attempt to work in the United States after graduation. DHS grants one‐year employment authorization documents to graduates of U.S. universities in F-1 status under OPT.193 Currently, extensions are available for two years to those with STEM degrees or when the graduate is eligible to change status to an H-1B nonimmigrant status (for skilled workers in specialty occupations) on the first day of the next fiscal year.194 This H-1B–related extension is known as the “H-1B cap‐gap extension” because it is only necessary because the H-1B cap prevents an immediate change of status.195
But DHS’s regulations do not address another similar and common situation in which the graduate is sponsored for a green card but the lengthy process or the caps prevent immediate adjustment to permanent residence. If graduates cannot receive an OPT extension, their employers try to apply for an H-1B visa, which—if successful—takes cap space away from employers trying to hire from abroad and—if unsuccessful—forces a talented foreign graduate of a U.S. university to leave the country. About 6,500 international students are sponsored for green cards in this way,196 and if DHS grants OPT to every international student sponsored for a green card, more employers would try to sponsor foreign students, retaining international talent here.197
22. Allow Q Visa Holders to Interact with the Public Virtually
USCIS should amend its regulations to allow Q visa holders to meet the requirement to interact with the public with virtual interaction or development of material for the public.
The Q visa allows nonimmigrants to enter the United States “as a participant in an international cultural exchange program … for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the country of the alien’s nationality.”200 USCIS regulations interpret this to allow Q visa holders to “engage in employment or training of which the essential element is the sharing with the American public” the Q visa holder’s culture.201
But USCIS’s nonpublic guidance requires that Q visa holders fulfill the “sharing” requirement only through in‐person interaction, such as at a museum or cultural center.202 Expanding this definition to include virtual interaction or development of material to be absorbed by the public over media would recognize modern technology and trends, especially in a world where social distancing is essential, and would allow more nonimmigrants to participate in the program.
23. Index Refugee Caps to World Refugee Numbers
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.203
The president should base the refugee limit on the historical percentage of refugees worldwide that the United States admitted before the Trump administration.
The law grants the president the authority to determine the refugee admissions cap for each fiscal year after consultation with Congress.204 President Trump reduced the number of admissions each year of his presidency to the lowest level on record: fewer than 12,000.205 Rather than arbitrarily selecting a new cap number, the new president should base the refugee cap on the historical share of refugees worldwide that the United States had taken prior to the Trump administration cuts. The refugee flows should respond to the increasing worldwide need for resettlement and not be based solely on domestic political factors.
Basing the new refugee limit on the historical percentage of refugees worldwide that the United States admitted prior to 2017 would increase refugee resettlement. From 1975 to 2016, the United Nations High Commissioner for Refugees (UNHCR) recognized an average of 11.5 million refugees during each year of that period,206 and the United States accepted an average of 78,750 refugees per year—or an average of 0.68 percent of the worldwide refugee population.207 In 2019, UNHCR recognized 20.4 million refugees, 0.68 percent of which would mean a U.S. refugee target of 140,000. This would be the highest refugee limit since 1982 (Figure 7).208
24. Grant Refugee Status to Family‐Sponsored Immigrants Who Are Refugees
Immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.209
The president should grant refugee status to backlogged beneficiaries of family‐sponsored petitions from U.S. citizens and legal permanent residents if they qualify as refugees.
U.S. citizens and legal permanent residents have sponsored about 3.5 million immediate family members for immigrant visas210 but cannot reunite solely because of the low visa cap.211 These family members are the siblings and adult children of U.S. citizens and the spouses and children of legal permanent residents. Many of these family members could qualify for refugee resettlement as people fearing persecution in their home countries. For example, in 2016, nearly 6,400 Syrians were waiting in the family‐sponsored backlog.212 The top nationalities for asylum seekers at the border—Guatemalans, Hondurans, and Salvadorans—have about 144,000 applicants waiting in the family‐sponsored backlog.213 Because most will have to wait more than a decade for immigrant visas, many family members of U.S. citizens and legal permanent residents could die or suffer persecution unnecessarily.214
Congress has given the president the explicit authority to establish the number of refugees admitted outside the family‐sponsored caps215 if the president determines them to be of “special humanitarian concern to the United States.”216 The president should classify all beneficiaries of approved family‐sponsored immigrant visa petitions as those of “special humanitarian concern” and allot refugee numbers equal to the number of qualifying applicants. The State Department should establish a fee to accept refugee applications directly at consulates from beneficiaries of approved family‐sponsored immigrant visa petitions. Backlogged applicants would submit evidence that they would face persecution in their home countries to consulates with a modified immigrant visa application, and consular officers would interview them as they would normally for an immigrant visa.
If they are approved, the refugees would be “resettled” by their relative, not through the U.S. Refugee Admissions Program, without government funds just as they would have been had they received immigrant visas. While this would be outside the usual refugee procedures, this policy would speed refugee processing for American families far more than requiring the usual involvement of the State Department’s Bureau of Population, Migration and Refugees, and USCIS’s International and Refugee Affairs Division. Granting refugee status to family‐sponsored immigrants would save tens of thousands of lives at minimal government expense.
25. Create a Private Refugee Sponsorship Program
The president should create a private refugee sponsorship program with a numerical limitation apart from the U.S. Refugee Admissions Program equal to the number of requested sponsorships.
Under the U.S. Refugee Assistance Program (USRAP), the United Nations High Commissioner for Refugees refers refugees for resettlement and the State Department funds a public‐private partnership in which several nonprofit organizations find housing and help integrate the refugees. While this model has effectively resettled more than three million refugees since 1980, the United States could resettle more refugees if it also allowed private individuals and organizations to sponsor refugees.219
The law grants the president the authority to determine the refugee admissions cap for each fiscal year220 as well as select refugees who are of “special humanitarian concern to the United States.”221 Presidents Ronald Reagan and George H. W. Bush used this authority to create the Private Sector Initiative that set aside 10,000 refugee slots for privately sponsored refugees.222 By leveraging private resources, Americans could resettle far more refugees, and private parties could get ahead of emerging refugee crises faster than the U.S. government.
The president should establish a refugee allotment for privately sponsored refugees, and DOS should model a program based on the successful refugee sponsorship program in Canada.223 U.S. sponsors—organizations as well as individuals—should be allowed to submit sponsorship applications directly to the State Department. They would be required to present evidence of the refugee’s status, provide a resettlement plan showing where the refugees will live for the first year after arrival, and pay a fee to cover the costs of resettlement for the first year. The process should follow the procedures for family‐sponsorship for immigrant visas, not refugee resettlement under the USRAP. The entire process should be handled by the State Department to fast‐track resettlement and assure that there is not a long period between an offer of sponsorship and resettlement.
Broadly Applicable Reforms
26. Permit Legal Counsel during Inspections and Visa Interviews
Senior associate director of government relations for the American Immigration Lawyers Association.224
DHS should permit access to legal counsel for visa applicants and anyone placed in secondary or deferred inspection at ports of entry.225
Federal courts have recognized that “immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ … A lawyer is often the only person who could thread the labyrinth.”226 A 1999 State Department cable has also affirmed this view.227 Nonetheless, a lack of access to counsel in visa interviews, as well as during the secondary and deferred inspection processes at ports of entry, is the norm. Even close relatives of U.S. citizens and lawful permanent residents, and employees of U.S. corporations and nonprofit entities, are often denied access to their attorneys at these critical stages of the immigration and inspection process.
When a complicated legal issue arises and counsel is barred from participating meaningfully in proceedings, both citizens and noncitizens may be subject to prolonged and unnecessary administrative processing of a benefit or extended detention. Moreover, the lack of meaningful access to counsel can result in an unjust refusal of a visa, denial of admission, or expedited removal from the United States. Either way, significant government resources are expended in many situations where the presence of counsel could have helped resolve the problem more quickly.
DHS regulations from 1980 do not guarantee a right to counsel at primary or secondary inspection.228 The 1980 rulemaking justified the limitation because, if the inspecting officer believed that an individual seeking admission was not entitled to enter, the individual was entitled to a hearing at which point the right to an attorney would apply.229 But since 1996, Congress has allowed DHS to remove applicants for admission without a hearing.230 While officers may allow a “representative access to the inspectional area to provide assistance,”231 they are not required to allow such access, and the same policy applies to deferred inspections in which applicants are released and required to return.232 In many or most cases, access to an attorney is denied. DOS regulations now require that all immigrants and most nonimmigrants personally appear before a consular officer for an interview,233 but each consular section decides whether attorneys can be present,234 and many refuse to allow them.235
The Administrative Procedure Act (APA)236 provides for a right to counsel for individuals who are “compelled” to appear before an agency or agency representative.237 Since virtually all interactions with DHS and DOS officers involve compulsion, the right to counsel is clear.238 Regardless, the authority to grant this right is undisputed. While DOS could independently grant access to counsel at visa interviews under its own authority, USCIS has statutory authority to establish rules for both the visa issuance and entry processes.239
Applicants and petitioners should be provided with a reasonable opportunity to seek the advice and counsel of their attorneys, and attorneys should have the opportunity to accompany their clients. In cases where the agency has decided to refuse admission to the United States or to allow an applicant to withdraw his or her application for admission, and where an attorney‐client relationship has been established, the officer must communicate that decision to counsel under long‐standing requirements regarding communications with a represented party.
27. Digitize USCIS Immigration Forms
The president should require USCIS to complete within two years an electronic filing system that allows submissions of all application forms via lawyers’ approved case‐management systems.
Of 102 USCIS forms available on its website, only 11 can be filed electronically.241 Lawyers barely use the system that does exist because it is not an open Application Programming Interface system, so the case management systems on which immigration lawyers store their client data cannot “talk” to the USCIS online filing system. Lawyers must manually retype up to 100 form pages, wasting effort and necessitating higher fees for clients. The IRS figured out decades ago how to allow software companies to electronically push tax returns to the IRS e‐filing system.242 Yet immigration attorneys cannot even file virtually all the major forms online.
USCIS spends huge sums on outside contractors who manually type form data into USCIS’s own case management system, often making mistakes that can even cause immigrants to fall out of status. USCIS has also started denying applications where not every field is filled in, even if those fields are completely inapplicable.243 One asylum applicant was actually rejected because the applicant failed to fill in the requested current addresses—for dead relatives.244 E‐filing could easily be configured to not provide an address field if the deceased box is checked or to prevent an applicant from advancing unless the person affirmed that the question was not applicable. E‐filing would also guarantee that applications ended up where they needed to go245 and that the proper fees were accepted electronically, avoiding common confusions in those areas.246
USCIS should not lead this effort, as it has previously wasted more than $2.3 billion on failed digitization efforts that refused to involve lawyers in alpha and beta testing.247 Instead, the administration should require the U.S. Digital Service (USDS) to manage USCIS modernization efforts because it was created specifically to handle these types of technological upgrades, and USDS should involve actual customers in its testing.
28. Enforce USCIS Policy against Broad Brush RFEs
USCIS policy should reinforce its current policy memorandum banning broad‐brush requests for evidence (RFEs) and notices of intent to deny (NOIDs) and track RFEs and NOIDs by individual adjudicators.
During immigration adjudications, USCIS issues RFEs or NOIDs to give applicants an opportunity to correct deficiencies in their applications. RFEs are commonly issued for family‐based applications and for employer‐sponsored work visas like the H-2B for nonagricultural workers and the H-1B for skilled workers at U.S. companies. The share of work visa petitions with an RFE nearly doubled from 2015 to 2020 (Figure 8). Unnecessary RFEs or NOIDs can add additional work and costs for employers or lead to denials, which would thus prevent eligible individuals from obtaining or keeping the immigration benefits the law allows.
A 2005 USCIS policy memorandum prohibits issuing RFEs “for a broad range of evidence when, after review of the record so far, only a small number of types of evidence is required” because it concludes broad‐brush RFEs “overburden our customers, over‐document the file, and waste examination resources through the review of unnecessary, duplicative, or irrelevant documents.”249 USCIS will often create “template” RFEs that generally describe issues that can come up, but the memorandum tells adjudicators not to “‘dump’ the entire template in [an] RFE; instead, the record must be examined for what is missing, and a limited, specific RFE should be sent.”
Despite clear headquarters instructions, these requirements are uniformly ignored by USCIS adjudicators, and boilerplate RFEs are now routine. The USCIS Ombudsman has described how USCIS will issue RFEs for information already provided by the applicants,250 and one court noted that USCIS had “issued an RFE requesting nearly identical information as it did when it last reviewed the petition.… Although not mirror images, the information requested is the same. [The employer and the H-1B beneficiary] have already provided this information in response to the defendants prior RFE.”251
To remedy this problem, USCIS should adopt a new policy memorandum reaffirming the binding nature of the 2005 policy memorandum and requiring supervisory review when adjudicators issue all‐encompassing, broad‐brush, or template RFEs and NOIDs. It should also extend the memorandum to Notices of Intent to Revoke previously approved petitions. Moreover, it should expressly note all interim adjudications as to specific legal issues of eligibility for the immigration benefit sought to avoid wasting the time of the applicant or petitioner addressing already resolved issues. USCIS should also be required, by executive order or otherwise, to collect statistics on the ID code (but not the name) of adjudicators and begin to report the frequency of RFEs and NOIDs and the resulting outcome of the adjudication. In this way, renegade adjudicators who fail to comply with the requirement of the Administrative Procedure Act that agency decisions be reasonably explained can be identified.
29. Prohibit Regulatory Actions on USCIS Forms
USCIS should amend its regulations to stop automatically incorporating all form instruction changes into its regulations, bypassing notice and public comment procedures.253
USCIS requires employers and applicants for immigration benefits to use forms that it creates to collect information.254 Along with these forms, USCIS publishes detailed instructions that explain to applicants how they must fill out the form and the types of information or evidence that must be provided. USCIS’s regulations currently assert that all form instruction changes are incorporated into the regulations themselves.255 The clause allows the agency to evade a slew of federal statutes and presidential directives including the Administrative Procedure Act (APA), the Regulatory Flexibility Act, Executive Orders 12866 and 13563, and OMB Circular A-4.256 It allows the agency to effectively change its regulations with only minimal notice under the Paperwork Reduction Act.
USCIS uses this vague regulation to bypass the APA and impose expensive costs on applicants without any notice or review. For example, the government updated its form instructions in 2019 to state that any application failing to answer every question—including those for which the answer is none, not applicable, or unknown—would be rejected.257 Contradictory and inconsistent legal requirements can result even when USCIS issues multiple sets of instruction, as it did with the guidance for the I-9 Form.258 The agency should rescind the regulation and clearly require notice and public comment for all substantive changes. Instructions on agency forms should not be allowed to take effect unless there is a meaningful, substantive opportunity for comment, as the APA requires.259
30. Require Agencies to Apply the Rule of Lenity to All Actions
The president should issue an executive order requiring all federal immigration agencies to interpret ambiguous statutes and regulations with leniency in favor of the applicant or petitioner.
Immigration law is commonly referred to as “second only to the Internal Revenue Code in complexity.”262 It is a convoluted morass of vague and poorly defined terms, making life‐altering decisions hang on the meaning of unfamiliar and ambiguous terms like “moral turpitude” or subjective analyses about an applicant’s “credibility.”263 In the removal context, courts have dealt with this phenomenon by “construing any lingering ambiguities in deportation statutes in favor of the alien.”264 The Supreme Court has stated, “since the stakes are considerable for the individual, we will not assume that Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”265 This interpretative method is referred to as “strict construction” or “the rule of lenity.”266
While courts have only applied this rule to statutes governing removal and immigration crimes, the stakes are just as considerable in the adjudication of various immigration benefits—denials of which can themselves trigger removals or prevent travel to and residence in the United States, causing permanent separation of Americans from their spouses, children, and parents and career‐ending decisions requiring departure from the United States. Since adverse adjudications of petitions and applications requesting immigration benefits routinely render a denied beneficiary “out of status” and thus removable, the rule of lenity should be interpreted by executive order and extended to other immigration statutes and regulations, which, if enforced against particular noncitizens, would similarly lead to their deportation or “exile.”
The president should require all agencies involved in the interpretation or application of immigration statutes and regulations to adopt the rule of lenity for all rulemakings, decisions, and adjudications. The president has the inherent authority under the Constitution to require agencies to follow certain procedures before acting in order to preserve and protect the rule of law. Prior presidents have used this authority on numerous occasions.267 In ordering the application of lenity, the president should recognize past, largely unsuccessful efforts to encourage evenhanded and fair adjudications.268 Thus, there can be no substitute for executive branch oversight and internal agency supervisory review if lenity is to be applied consistently.269
Ordering that leniency of interpretation and application be applied by federal immigration authorities to their adjudications in favor of petitioners and applicants requesting immigration benefits would promote the rule of law and protect the rights of immigrants and Americans.
The Biden administration will have to work around the clock to reverse the hundreds of regulations and executive actions that restricted the freedom of legal immigrants and Americans. But while it is reversing these negative actions, the administration should also “build back better,” consistent with the president’s campaign promises. While the president should push Congress to improve the underlying immigration law, the president already has the authority to substantially improve the functioning of the current immigration system. These 30 deregulatory actions would lessen the costs of America’s outdated immigration laws. The results would be greater freedom and prosperity for both immigrants and Americans who rely on them.