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Better Immigration Policy


cecilia esterline is an immigration research analyst for the Niskanen Center, a Washington-based think tank. matthew la corte is the government affairs manager for immigration policy at Niskanen.

Published July 24, 2023


It is no secret that the American immigration system is dysfunctional and that reform efforts have long been tied in knots by Congress. But even those with a passing awareness of the outmoded laws and their callous administration may be shocked to learn of the magnitude of the damage the system does.

As of this writing, 3.9 million are waiting in line for family-uniting residency, 170,000 workers are in a seemingly unending queue for visas requested by employers and 600,000 DACA recipients — the “dreamers” who have spent almost all their young lives growing up in the U.S. — remain stuck in legal limbo. With families divided and procedural inefficiencies worthy of Bleak House, the status quo is an affront to both common sense and decency.

The rest of us share the consequences with them, whether we know it or not. Lingering impacts of pandemic-era travel bans and consular closures have left the U.S. with nearly 700,000 fewer-than-anticipated permanent immigrants. This loss worsens worker shortages in a labor market so tight that job vacancies outnumber unemployed Americans by about two to one.

Not only have we been unable to fully recover from the immigration slowdown resulting from the pandemic, but we are also losing some of the highly skilled immigrants we already have to third countries. Canada (and France and Spain, among others) is plainly ready to step up and benefit from our indifference to the value of foreign talent, even when it’s the product of American universities. In a matter of five years, nearly 40,000 U.S.-educated immigrants were invited to move to Canada based solely on their qualifications, without an employer sponsor (a nonexistent option in the U.S.). Meanwhile, U.S. companies are relocating employees to Canada or Mexico to bypass immigration delays, a trend that could gravely impact domestic productivity in the long term.

We needn’t abandon all hope for change, though. No, Congress probably won’t manage to straighten up and fly right. Nor could President Biden thoroughly overhaul American immigration without legislative blessing. But incremental changes initiated by the executive branch could still make a big difference. Here’s a brief list of what’s possible, even in these partisan times.

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Updating Schedule A

Before a firm can sponsor a foreigner for permanent employment in the U.S., it must jump through numerous hoops to show that American workers won’t suffer. First, would-be employers file a labor certification with the Department of Labor in which they make the case that there aren’t enough “willing, qualified and available” resident workers to cover the demand and that hiring the foreigner won’t undermine the wages or working conditions of similarly situated Americans. More specifically, the job vacancy generally needs to be widely advertised, and the employer must make a good faith effort to recruit an American at job fairs or on-campus events. Then the DOL decides if the recruitment efforts were sufficient to meet the legal test.

The current average processing time for permanent certification is over 260 days. When you add the time it takes U.S. Citizenship and Immigration Services to shuffle the requisite papers, most employers are lucky to fill a position within a year.

There are some exemptions to this process, though, that could serve as the edge of the wedge to establishing a more efficient policy. Immigrants of extraordinary ability, like Nobel Prize winners and Olympic medalists, have a shorter path to navigate, as do some niche professions specified in federal regulations like (wait for the drum roll …) sheepherding. For our purposes, the most noteworthy exemption is for occupations designated on the Schedule A list.

Schedule A was initially meant to serve as a flexible list of occupations suffering worker shortages. It was designed to allow employers to bypass the labor certification process and file their immigration petitions directly in times and places where the regular process simply wouldn’t do.

Yet in its current iteration, Schedule A is far from flexible and is woefully out of touch with labor market realities. The list hasn’t been updated in over 30 years, and, as a practical matter, it only applies to physical therapists and nurses. Hence the need for a major data-based overhaul.

Note that doing so would not require congressional approval. The regulations governing Schedule A permit the secretary of labor to use their discretion to update the list “at any time upon his own initiative.” It is thus baffling that it has remained frozen for over three decades.

There is some debate over the methods that should be used to amend Schedule A. But this isn’t anything that hasn’t been done before. Among other things, the list makers need to keep in mind the length of time required to train for a position, the industry’s rate of wage growth and the number of recently approved labor certifications for the job category.

Of course, adding real flexibility into the decision-making would require acceptance of the principle that the covered occupations should change as circumstances change. But the promise is real: Schedule A could vastly expand the list of jobs with the greatest need, like surgeons and engineers, giving the occupations with the starkest shortfalls the advantage of circumventing the Dickensian labor certification process.

As of November 2022, the National Visa Center waitlist numbered about 4 million, so some categories of visas are only now becoming available for individuals who started the immigration process over 25 years ago.
Prevent Green Card Waste

By the end of the 2021-22 fiscal year, nearly two million petitions for permanent immigrant status and about 800,000 green card applications were awaiting adjudication. Despite this massive demand, almost 67,000 green cards went to waste, in the sense that no legal barriers prevented them from being issued.

What’s happening here? Federal law caps the number of green cards that can be issued each year, and the authority generally can’t be rolled over to the next year. Therefore, when bureaucratic inefficiencies slow down the process sufficiently, some green card slots can go unused. Wasted card allocations currently represent one-fourth of the available slots for employment.

The process for requesting a green card is lengthy and rife with opportunities for delay. As of November 2022, the National Visa Center waitlist numbered about 4 million, so some categories of visas are only now becoming available for individuals who started the immigration process over 25 years ago. These people have already had a petition approved by USCIS. But due to the annual cap on green card issuance, they must still wait in a very long line.

At the very least, then, measures could be taken to prevent green card waste. This wouldn’t increase the total number of immigrant visas currently permitted by legislation, but it would repair some of the damage done by bureaucratic delays. And through administrative action alone, President Biden could revive over 304,000 dormant green cards.

The benefits of shortening these surreally long lines for the direct beneficiaries are obvious. But the indirect benefits in terms of higher economic productivity would be nothing to sneeze at. One estimate puts the addition to GDP from recapturing as few as 230,000 wasted green cards at about $216 billion over ten years.

Expand the J-1 Au Pair Visa

Participants in the Department of State’s visitor programs (including the short-term scholar, internship, and au pair programs) enter the country on what is called the J Exchange visitor visa. Au pairs, of course, are young people who live with American families in return for help with childcare. Congress formally created the au pair program back in 1986, recognizing that it was a win-win, a combination of benign cultural exchange and more affordable childcare in an era in which the cost of childcare is a large and growing problem. What better time than now to expand the scale and scope of the au pair program?

AP photo/Sitthixay Ditthavong

One great idea: revising the regulations to allow participants to provide eldercare as well as childcare. Thanks to the aging of the baby boom generation, the U.S. eldercare industry is already in crisis, and the number of home health and personal care aide jobs is expected to grow by 25 percent in the next decade. Not only are shortages already impacting the availability of home-based care but deeply straining institutionalized care to the point that it may not be a viable alternative. Indeed, 60 percent of American nursing homes are limiting new patients due to staffing shortages.

Revising the au pair program to add eldercare would not increase the type or amount of permanent immigration permitted by the J-1 visa. It is not a dual-intent visa, meaning it generally does not allow visa holders to pursue green cards (permanent residence) simultaneously. And while Congress created the visa category, Department of State regulations define the scope of the program, thus permitting modification without legislative action.

Those regulations require au pairs providing childcare to complete 32 hours of training before arrival. In eldercare, existing federal regulations require home health aides to have 75 hours of training, but personal care aides (who do not perform clinical tasks) don’t have any federal training requirements. The latter can assist aging Americans with daily tasks like getting dressed, bathing, preparing meals, eating and basic housekeeping — all responsibilities typically assumed by childcare au pairs.

Expanding the program would almost guarantee an increase in Americans’ participation rate in the formal labor market. And the numbers could be quite large. As of March 2022, 6.6 million Americans said they wanted paid jobs but couldn’t take them due to caretaking responsibilities. You might assume that most of the 6.6 million were parents caring for preschool children. In fact, the Federal Reserve found that four-fifths were out of the workforce to care for adults.

Frustrated Chinese tech workers unable to get visas.
AP photo/Greg Baker
Designate New Private Sponsorship Pathways

In January, the Biden administration announced the launch of the Welcome Corps, a new private refugee sponsorship program and one of the boldest innovations in resettlement efforts since the Refugee Act of 1980. The Welcome Corps allows sponsorship groups to take the lead in resettling refugees once they arrive in the U.S. Tens of thousands of refugees are now in the resettlement pipeline. (Vetting and security measures are, and will remain, a government responsibility.)

The announcement launched the first of four phases of private sponsorship. In this first, sponsor groups are directly matched with refugees instead of being linked through a traditional resettlement agency. This gives the refugees access to a wider network of supporters and enhanced access to community resources and engagement. The second phase, slated to begin this summer, will allow sponsors to name specific refugees — presumably, extended family and friends — they wish to resettle.

The administration also plans to empower colleges and universities to sponsor students who qualify as refugees and whose studies were interrupted when they fled their homes. Such a program makes sense, given the depth of resources available — everything from health care to classes in English as a second language — within campus communities.

Another sponsorship option is a labor pathway — one that would allow businesses to sponsor refugee employees. This would bring the refugees to safety and allow them to continue working, making them self-sufficient faster. But it would also have the near-term effect of filling labor shortages in occupations now going begging.

At the risk of repeating ourselves, each of these program pathways can be created by the administration without congressional approval since they would make no changes in the legally mandated security and medical vetting procedures for refugees. Moreover, none of them requires creation on a blank canvas — in many cases, Canada can show us the way.

Restart Domestic Visa Revalidation

Last but not least, the Biden administration needs to act now to restart visa revalidation on American soil. Two decades ago, the U.S. government decided that it would no longer process applications for visa reissuance domestically — that’s right, to renew a visa, an applicant must leave the United States. The rationale for this policy change was rooted in burdensome interview requirements and difficulties in collecting biometric data. However, this no longer makes much sense given the State Department’s access to technology that speeds the process without making it less secure.

The current process is even more of an inconvenience for foreign residents than you might guess. Wait times at consulates around the world are often staggeringly long, in some cases exceeding 500 days. And since this often affects highly skilled workers who are integrated into business organizations, their U.S. employers must learn to cope with projects spread over multiple continents.

Adding green card applications to the pile.
AP photo/Robert Brown

In any event, thanks to the exigencies of Covid-19, the State Department already knows it doesn’t need foreigners to show up to a consulate to process most visas. Virtual visa interviews are increasingly becoming the norm. In fiscal year 2022, over half of all nonimmigrant visas — some 3.5 million of them — were issued without in-person interviews.

While the ability to waive interviews or to conduct them virtually was a necessity created by the pandemic, the authority permitting them has already been extended through the end of 2023. A variety of organizations, ranging from the Federation of American Scientists to the Educational Testing Service, have asked the State Department to make it permanent.

Reshoring renewals would no doubt add to the burden borne by State’s domestic staff. But this is not an insurmountable issue. To boost domestic staffing, American applicants to the foreign service who score well — but are just shy of passing — could be offered positions in the consular affairs bureau to conduct interviews domestically and eventually abroad in response to staffing needs.

Finally, domestic biometric data collection is no longer the barrier that it was in 2004. The in-person interview waiver relies on applicants already completing biometric requirements at a prior appointment. Therefore, many beneficiaries of the interview waiver program are not required to complete biometrics again, except upon entry to the U.S. Additionally, the United States has access to robust biometric services within the U.S., including numerous third-party service providers who already have established relationships with federal agencies.

To its credit, the State Department already has plans to pilot the revival of domestic visa services. The nascent program, expected to launch this summer, will only be available to some applicants who are renewing specialized work visas. Although this is a step in the right direction, the administration has the authority to implement this practice much more broadly.

* * *

We should never forget that the obsolescence of the American immigration system continues to fray the social fabric, exacerbate the economic consequences of rapid population aging and undermine economic innovation and growth. But the best — true reform that turns on congressional action — should not be allowed to be the enemy of the good. These five proposals demonstrate the considerable authority the Biden administration could wield to reduce the damage. It would be a shame to allow that authority to languish.

main topic: Migration