“Merit-Based” Immigration: Trump Proposal Would Dramatically Revamp Immigrant Selection Criteria, But with Modest Effects on Numbers

President Donald Trump’s proposal to “create a fair, modern, and lawful system of immigration” has, despite its high-profile Rose Garden rollout on May 16, met a decidedly lackluster reception, among Democrats and Republicans alike. The plan’s provisions on border security and asylum seem mostly to reiterate changes the administration has been advocating for some time. And while its vision for the future of legal immigration would mark a fundamental shift in the architecture of the U.S. immigrant-selection system, the proposal, rather strikingly, would largely allow permanent legal immigration to continue at current levels—something out of sync with the administration’s consistent framing of immigration as an economic and security threat, and that has drawn sharp criticism from some within the president’s own party.

Details of the proposed overhaul of the legal immigration system remain sketchy and come mostly from media reports. At its core, however, the proposal developed by Trump senior advisor Jared Kushner seeks to move the United States away from a system that is predominantly family based and toward one that favors applicants with desirable labor-market attributes, to be selected using a points system. The proposal of a points system both looks to the mechanisms adopted by other high-income countries for selecting economic migrants and revives some elements of prior U.S. legislative proposals.

Among the changes outlined, it would eliminate most of the current categories of family-sponsored immigrant visas, leaving permanent family pathways only for spouses and minor children of U.S. citizens and lawful permanent residents. The number of grants of permanent residence (also known as green cards) eliminated from family categories would be diverted to a new category, coined the “Build America Visa,” that would replace all current employment-based green-card categories. This newly created category would include immigrants who possess extraordinary talent, professionals and those in specialized vocations, and those with exceptional academic achievement. In this selection system, applicants would be allotted points for:

• youth
• having a valuable skill
• having an offer of employment
• having an advanced degree
• planning to create jobs
• earning higher wages.

New immigrants would also need to demonstrate financial self-sufficiency, learn English, and pass a civics exam prior to admission.

Family Unity: A Principle of the U.S. Immigration System for Seven Decades

Prioritizing family-based admissions above all other forms of immigration is a uniquely U.S. phenomenon, with deep roots in U.S. immigration history. The 1952 Immigration and Nationality Act incorporated both of the main immigration pathways that exist today: family-based categories (with higher priority given to spouses and minor children than other relatives) and employment-based categories. It also kept intact the national-origin quotas established by a 1921 law that, for the first time, set numerical limits on the admission of immigrants, with preference given to Western and Northern European immigrants over Southern and Eastern Europeans, and non-European immigrants.

While the 1965 Immigration and Nationality Act is often heralded for putting an end to the race-based quota system, it was also notable for further solidifying the primacy of family-based immigration. This was intended to reassure lawmakers who feared the law’s other changes would dilute the distinctly European nature of immigration to the United States. By placing no annual limits on the migration of immediate family members of U.S. citizens, allocating more visas to siblings of U.S. citizens, and reserving three-fourths of all visas for family-sponsored immigrants, Congress, through this process, sometimes dubbed “chain migration,” thought it had all but guaranteed the continued dominance of European immigration.

In subsequent decades, however, relative prosperity in Europe resulted in diminished interest among Europeans in migrating to the United States. At the same time, educated nationals of newly independent and emerging countries of Africa, Latin America, and Asia increasingly sought opportunities in the United States. These new immigrants were then able to sponsor their family members for admission, thus shifting the pattern of immigration flows. For comparison, the top three nationalities of the U.S. foreign-born population in 1960 were Italian, German, and Canadian. By 2017, they were Mexican, Indian, and Chinese.

Gauging the Potential Effects of New Immigration Priorities

If the administration’s proposal to revamp U.S. immigration priorities were enacted, the overall education and skill profile of new immigrants would likely see a significant shift, as would the relative shares of those admitted for work, family, and other reasons. Yet it is unlikely that the profile of those admitted through the economic stream itself would be very different from those entering through the current employment-based stream.

As of fiscal year (FY) 2017, 12 percent of new legal permanent residents gained that status through an employment-based category, while 66 percent did so through family sponsorship. An additional 16 percent received humanitarian visas (mainly refugees, asylees, special Afghan and Iraqi immigrants, and certain victims of crime), and 5 percent gained their status through the diversity category.

The Trump proposal seeks to invert this breakdown. Under the proposed plan, 57 percent of immigrants would gain status through economic streams, 33 percent through family ties, and 10 percent for humanitarian reasons (see Figure 1). The diversity stream would be eliminated.

Changes to Family-Sponsored Immigration

Beyond the fact that a smaller share of green-card holders would enter the country as a result of family ties, the characteristics of those admitted via family streams would also change. A White House fact sheet that offers some details on the proposal indicates that only nuclear families (that is, spouses and minor children) of U.S. citizens and green-card holders would be eligible for permanent residence. It does not mention other family relationships—including siblings and parents—that can currently qualify for admission. If it were to disqualify these other family categories, the plan would exclude almost 40 percent of family-based immigrants who received green cards in FY 2017 (see Figure 2).

These proposed cuts are similar to those outlined in the RAISE Act introduced by Sens. Tom Cotton (R-AR) and David Perdue (R-GA) in 2017 and endorsed by Trump. However, the RAISE Act would also have lowered the age limit for minor children from 21 to 18 and reduced the numerical caps for spouses and minor children of legal residents. Under the RAISE Act, among the immigrant-sending countries that currently make up the top ten, those that would see the sharpest absolute drops in immigrant admissions are Mexico, India, China, Vietnam, the Dominican Republic, and the Philippines. However, key details of the Trump proposal are still unknown, including how closely it lines up with the RAISE Act and how it would deal with admissions of family members currently waiting in the green-card backlog.

Changes to Humanitarian Immigration

The administration plan would also see a drop in the share of green cards issued through humanitarian channels—down approximately 6 percentage points from the FY 2017 level. A shift in this direction is already underway. If the White House continues to set low ceilings for refugee admissions, as it has in FY 2018-19, the number of refugees adjusting to permanent residence after one year in the country will inevitably decrease, even absent legislation.

Changes to Employment-Based Immigration

While a larger share of immigrants would be admitted for economic reasons under the Trump proposal, their profile would likely be similar to that of immigrants who currently receive green cards through economic pathways. Because the proposal would allocate more points to applicants with high-paid job offers and advanced education, and ask that they meet English language and civics requirements on top of that, migrants already working in the United States on H-1B visas reflect many of the characteristics of those who would score well when applying for a green card under the proposed system. In FY 2017, 82 percent of employment-based visa recipients were already in the United States, and H-1B holders made up the largest share of this population. Chinese and Indian immigrants currently dominate the H-1B category and thus would likely be the top recipients of immigrant visas under the proposed plan, with Indians likely to have a slight edge due to the priority it gives to English language ability.

Selection Systems in Other Countries

Trump has often pointed to Canada and Australia as examples of legal immigration systems that the United States should emulate. Canada was the first to adopt a points system for selecting which prospective immigrants to admit, in 1967. Australia implemented its points-based system in 1989, New Zealand did so in 1991, and since then the United Kingdom, Japan, and China are among those adopting systems with similar elements.

Traditionally, points-based systems have aimed to attract human capital and have placed less emphasis on the demands of individual employers. The greatest country-to-country variation among these systems is often in the share of prospective immigrants admitted through points systems, and the number of points awarded for various characteristics. In recent years, however, many countries with points systems have started incorporating more demand-driven criteria, increasingly trying to balance their labor-market needs with the accumulation of human capital that they believe will serve their economies in the long term. Canada, for example, carries out this balancing act by awarding applicants points for holding job offers—factoring in labor-market demand—but giving more points to people who have offers in high-skilled occupations. And both Canada and Australia give points for having work or education experience in the country, with the idea that such a background will make them more employable and able to contribute economically.

The United States has generally eschewed the more-regulated approach inherent with points systems, in which the government selects economic immigrants, instead favoring a demand-driven system in which employers get the maximum say. Trump’s proposal would seem to align with the increasing global trend of moving to consider both labor-market needs and human capital in economic admissions. Notably, however, introducing a points-based system would give the U.S. government a larger role in immigrant selection—a shift that would run somewhat counter to the administration’s push for deregulation in a number of other areas. The proposal also does not address labor-market needs in low- and mid-skilled occupations.

Civics requirements, as proposed in Trump’s plan, are also not entirely new. The United States currently requires applicants for citizenship (but not for temporary or permanent immigration) to pass a civics test, though the 1986 Immigration Reform and Control Act legalization did contain a civics (and English proficiency) component that unauthorized migrants had to meet. Some European countries have more recently introduced civics requirements for prospective immigrants, though these typically target family-sponsored rather than highly skilled migrants.

Past U.S. Consideration of Points Systems

The Trump proposal is not the first U.S. flirtation with the points system. The Select Commission on Immigration and Refugee Policy, established in 1978 to evaluate existing immigration laws and recommend changes, assessed and ultimately rejected the idea of introducing a points system in its 1981 recommendations. The commissioners were concerned that it would be difficult to decide on the criteria to be used when assigning points to an application, both because characteristics such as English proficiency would end up favoring nationals of certain countries and because it would be difficult to compare attributes such as educational achievement across countries with dramatically different educational systems.

A points system was debated again in the lead-up to the passage of the Immigration Act of 1990; it was included in the version that passed out of the Senate, which would have allocated 54,000 employment-based visas to a new points system, but was struck from the final text. Such a system was also considered as part of the attempt at comprehensive immigration reform in 2007. The 2007 bill would have eliminated most existing employment-based categories in favor of a points system that would reward employment, especially in specialty or in-demand occupations; higher education; and English ability—a set of priorities that strongly resemble the Trump proposal. A points system was once more discussed when comprehensive immigration reform came up again in 2013. That Senate bill favored similar characteristics as the 2007 proposal, but devised two points-based tracks: one for high-skilled and the other for lower-skilled immigrants. Both the 2007 and 2013 bills failed.

The Future of the Proposal

If the Trump proposal were to become law, it could make significant changes to immigrant flows in some respects and minimal changes in others. Examined through the lens of national origins, the points system seems likely to favor Indian and Chinese immigrants, who dominate employment-based immigration channels even now. For these two immigrant groups, proposed cuts to arrivals through family-sponsored categories could potentially be offset by increases in those granted admission through the employment stream. Migration Policy Institute (MPI) research has also shown that the profile of recent Mexican migrants is increasingly well-educated and professional, so some portion of the likely drop in Mexican family migration may be countervailed by new economic migrants from the country. Overall, nationals of some of today’s major sending countries would still likely immigrate in large numbers, but their education levels may see an uptick. Immigration from other current top origin countries, such as Mexico and Vietnam, could potentially see more significant drops, despite any small gains made in the economic stream.

From the lens of U.S. labor-market needs, the Trump proposal could help fill gaps in some high-skilled occupations, but it does not address the needs of lower-skilled ones (such as agriculture, health and elder care, and service-sector jobs)—areas where research has shown persistent and growing demand for workers that is unmet by the native-born population. Needless to say, the proposal also does not address the 11.3 million unauthorized immigrants in the country, most of whom are employed and therefore affect the composition and dynamics of the U.S. labor market.

On the political front, the Trump proposal was quickly met with skepticism on both sides of the aisle. As was the case during the 2007 and 2013 immigration debates, it is difficult to drum up support for reforming the entire U.S. legal immigration system. Both Republicans and Democrats have found aspects of this latest proposal to dislike: the most vocal representatives on the right are incensed that it fails to cut overall legal immigration levels, and all Democrats and some Republicans argue that any reform proposal must include protections for unauthorized immigrants brought to the country as children by their parents—known as DREAMers—if not a larger swath of the unauthorized population. The last 20 years of debate around immigration reform have consistently shown that unless a proposal has significant bipartisan support, it will not advance. The Trump administration will need to garner considerably more support on both sides of the aisle if its proposal is to have a future as anything more than a 2020 election campaign statement.

• 1952 Immigration and Nationality Act
• October 2015 Policy Beat on the legacy of the 1965 Immigration and Nationality Act
• 2007 and 2013 Senate immigration bills
• MPI data tool modeling effects of potential cuts to legal immigration categories
• MPI commentary on the potential effects of the 2017 RAISE Act
• MPI report comparing points-based and demand-driven selection systems globally
• Congressional Research Service report on points systems
• MPI fact sheet on higher-skilled Mexican migration

National Policy Beat in Brief

Federal Appeals Court Allows Administration to Continue Remain in Mexico Policy While Lawsuits Go Forward. A three-judge panel of the Ninth U.S. Circuit Court of Appeals ruled May 7 that U.S. Customs and Border Protection (CBP) can continue returning asylum seekers who arrive at the Southwest border to Mexico while they wait for their asylum hearings, as a lawsuit against the policy plays out. The decision is a reversal of a U.S. district court’s April 8 ruling that paused the program, officially called the Migrant Protection Protocols (MPP). The earlier decision found that U.S. law did not authorize the return of these migrants, and even if it did, the administration would likely be required to go through notice-and-comment procedures to implement a new assessment for determining whether non-Mexican migrants have a sufficient fear of persecution in Mexico to be exempt from the program. In its ruling, the appellate panel found that MPP was permitted by statute and did not necessitate a notice-and-comment period because it could be considered a general statement of policy (and thus, was exempt from such administrative procedures). The challenge to MPP has not yet been adjudicated on the merits by the district judge.

• Order granting motion for preliminary injunction by the U.S. District Court for the Northern District of California in Innovation Law Lab v. Nielsen
• Ninth U.S. Circuit Court of Appeals opinion in Innovation Law Lab v. McAleenan
• New York Times article on the Ninth Circuit’s decision
• March 2019 Policy Beat on the Remain in Mexico policy

USCIS Making Changes to Credible-Fear Interview Process. In April, U.S. Citizenship and Immigration Services (USCIS), which is responsible for determining whether migrants who seek asylum during expedited removal proceedings have credible fear of being returned to their countries of origin, began making changes to this screening process. These changes are likely to make it more difficult for migrants to pass a credible-fear determination, the initial hurdle that needs to be cleared in order to apply for asylum. An April 30 update of USCIS’ credible-fear lesson plan, which provides guidance to asylum officers making these determinations, did a number of things: It removed passages advising asylum officers to keep in mind trauma, cultural factors, and interpretation issues when evaluating an interviewee’s credibility; it removed a paragraph noting that asylum seekers may not yet have all the documents they need to support their claims; and it now requires officers to provide a detailed explanation when they make either a positive or negative credible-fear finding (previously, such an explanation was only required for a negative finding). USCIS will also train 60 Border Patrol agents to conduct these screening interviews alongside about 200 asylum officers.

• April 30, 2019 USCIS Lesson Plan on Credible Fear of Persecution and Torture Determinations, obtained by Reuters
• February 13, 2017 USCIS Lesson Plan on Credible Fear of Persecution and Torture Determinations, obtained by the American Immigration Lawyers Association
• February 28, 2014 USCIS Lesson Plan on Credible Fear
• Reuters article on changes to the credible-fear process

Border Patrol Struggling to Process and House Migrants Crossing Southwest Border. The Border Patrol’s capacity to process migrants illegally crossing the U.S.-Mexico border—many of them, families requesting asylum—is strained, as 99,000 migrants were apprehended in April, and 93,000 in March. The last time monthly border apprehension numbers were this high was April 2007. The administration is taking several actions in response, including flying migrants who cross at the most crowded points to other parts of the border or to other states for initial processing, and asking Congress for additional funds. On May 1, the White House requested $4.5 billion to allow the Office of Refugee Resettlement (ORR) to house about 10,000 additional unaccompanied minors, and to increase CBP processing capacity and Immigration and Customs Enforcement (ICE) detention capacity for adults, among other measures. Congressional Democrats have indicated they are willing to increase funding for the care of children through ORR, but expressed opposition to increasing ICE detention capacity, which reached an apparent record 52,000 detainee daily average earlier this month. Finally, on May 17, the administration warned Congress that due to unexpectedly high arrivals of unaccompanied children, it may need to request an additional $1.4 billion in the current fiscal year.

• CBP statistics on border apprehensions
• May 1 Office of Management and Budget (OMB) letter requesting supplemental appropriations
• May 17 OMB letter warning about heightened unaccompanied child arrivals and funding needs
• Associated Press article on flights for migrant processing
• BuzzFeed article on apparent record immigrant detention level

Departments of Homeland Security and Labor Make 30,000 Additional Seasonal Work Visas Available. The federal government announced May 6 that it will allow employers to apply for up to 30,000 additional H-2B seasonal nonagricultural work visas in fiscal year (FY) 2019. This follows congressional authority given to the two executive-branch departments to increase H-2B visa issuances when the annual cap of 66,000 visas is reached long before the fiscal year has ended. This is the third year Congress has authorized such increases. In FY 2017 and 2018, the Department of Homeland Security (DHS) and Labor Department added only 15,000 visas, however. The 30,000 additional visas this year will be issued only to returning workers who had H-2B status in one of the previous three fiscal years; priority will be given to businesses that show they will suffer “irreparable harm” without additional foreign workers.

• Joint rule published in the Federal Register on increasing the number of H-2B visas for FY 2019
• U.S. News and World Report article on the additional visas

Justice Department Draft Regulation Would Expand the Definition of “Public Charge,” As It Applies to Deportation. The Justice Department has reportedly drafted a regulation that would make legal permanent residents (i.e., green-card holders) deportable if they use certain public benefits in the first five years after their admission to the United States. Under current policy, the government usually only deports people on “public-charge” grounds if it has charged them for the use of such public benefits and they have not paid. The benefits included in the draft, which has not yet been formally proposed, are Supplemental Security Income (SSI); the Supplemental Nutritional Assistance Program (SNAP), known as food stamps; Section 8 housing vouchers; a selection of Medicaid benefits; and Temporary Assistance for Needy Families (TANF). Lawful permanent residents are barred from using most federal public benefits in the first five years after gaining that status, but some states have allowed certain green-card holders (e.g., children and pregnant women) to access state-run benefits programs. Under the draft rule, such immigrants could face deportation. DHS has formally proposed (but not yet finalized) a similar regulation that would broaden the definition of “public charge” used when screening green-card applications and renewals of temporary visas; if implemented, this would largely affect noncitizens seeking admission, while the Justice Department proposal would affect removals of people already in the country.

• Reuters article on the draft proposal

Federal Judge Removes One Obstacle to Naturalization for Immigrants in the Military. On May 22, a federal district judge in Washington, DC, vacated a July 2017 U.S. Citizenship and Immigration Services (USCIS) directive that prevented the naturalization of immigrants serving in the military who did not receive a positive “military service suitability decision.” The court found that since the suitability decision does not provide “new derogatory information” to USCIS beyond what prior security investigations had found, it should not affect the ability of enlistees in the Military Accessions Vital to the National Interest (MAVNI) program to naturalize. The July 2017 directive was based on a September 2016 Defense Department policy that increased the background and security checks that immigrants serving in the U.S. military through the MAVNI program had to pass, and required that they receive a suitability decision before they could ship to basic training. Such decisions are based on both the security investigations and the military’s own needs. A negative decision prior to basic training results in an “uncharacterized”—neither honorable nor dishonorable—discharge. Current USCIS policy is to deny naturalization if an applicant has such an uncharacterized discharge. Indeed, USCIS denied 17 percent of military naturalizations in the first quarter of FY 2019, compared to 11 percent of civilian naturalizations; in the past, civilian denials have tended to be higher than military denials.

• Memorandum Opinion in Kusuma Nio v. U.S. Department of Homeland Security
• MPI policy brief on immigrants in the military
• McClatchy News Service article on high rates of military naturalization denials

Fourth U.S. Circuit Court of Appeals Rules Against Administration’s Termination of DACA. On May 17, a three-judge panel of the Fourth U.S. Circuit Court of Appeals became the second appellate court to rule that the Trump administration’s 2017 decision to terminate the Deferred Action for Childhood Arrivals (DACA) program was unlawful. DACA gives legal protections against deportation and work authorization to certain people who arrived in the United States illegally as children. The panel held that the administration violated the Administrative Procedures Act because it did not provide an adequate explanation for its decision. This ruling overturned a lower court’s finding that neither the decision to terminate DACA, nor the way in which it was done, were unlawful—the only such finding among four district courts that have heard similar cases. At the same time, the Fourth Circuit overturned the district court’s injunction that prevented DHS from using personal information submitted by DACA applicants in order to exercise enforcement again them or their family members, unless DHS requested the ability to do so directly from the court. The circuit court’s decision would thus allow DHS to revise its current policy and choose to share information with ICE.

• Fourth U.S. Circuit Court of Appeals decision in Casa de Maryland v. Trump
• Bloomberg article on the May 17 decision by the appellate court

Proposed HUD Rule Would Reduce Subsidies for U.S. Citizens and Legal Residents in Public Housing. The U.S. Department of Housing and Urban Development (HUD) has proposed a rule that would require all members of families receiving public housing subsidies to have an eligible immigration status, meaning that mixed-status families could be prevented from accessing this assistance. Currently, only one person in a family—whether a child or adult—has to demonstrate eligibility for housing subsidies by showing proof of U.S. citizenship, permanent residence, or certain other qualifying statuses, such as refugee or asylee. Under the revised policy, if any member of a family is ineligible, the entire family is rendered ineligible. According to HUD, this policy could affect more than 55,000 U.S.-citizen or legal-resident children and almost 21,000 adults who are currently receiving subsidies.

• HUD proposed rule
• NPR article on the analysis of the proposed rule
• Impact analysis of the proposed rule

State and Local Policy Beat in Brief

Colorado Governor Signs Three New Immigration Laws. Colorado Governor Jared Polis has signed three laws affecting how the state treats immigrants: opening up state financial aid to some unauthorized immigrants students, making it easier for unauthorized immigrants to apply for driver’s licenses, and limiting some state and local cooperation with federal immigration enforcement. In 2013 Colorado expanded the definition of in-state students to include certain unauthorized immigrant students attending public colleges and universities, based on years of state residence and other requirements. With the legislation signed by Polis on May 13, these students now become eligible for state financial aid. The governor signed another law May 28 that directs the Department of Motor Vehicles to allow unauthorized immigrants to apply for driver’s licenses at ten locations by 2020, up from the current three. The same day, he signed a law that prohibits state and local law enforcement from holding noncitizens based on detainers issued by ICE, prohibits probation officers from sharing people’s personal information with ICE, and requires law enforcement officers to inform detained individuals whom ICE wants to interview of their right not to participate and of their right to have an attorney present.

• Text of HB19-1196, Financial Aid for Students with In-State Tuition
• Text of SB19-139, driver’s license legislation
• Text of HB19-1124, Protect Colorado Residents from Federal Government Overreach
• Associated Press article on the new driver’s license law
• Colorado Public Radio article on the new financial aid law

Georgia Dissolves Panel Meant to Enforce State Immigration Laws. Georgia Governor Brian Kemp signed a bill May 7 dissolving the state’s Immigration Enforcement Review Board. The board, created in 2011, was designed to allow state residents to file complaints about public agencies that they thought were violating state immigration laws. However, all but one of the 20 complaints the board received between its launch and 2017 came from one anti-immigration activist, and they only rarely resulted in any penalties. The board was also mired in controversy in 2018 when a gubernatorial candidate filed a complaint with the board against the city of Decatur, which then sued the board, forcing it to agree to increase transparency and pay the city’s legal fees.

• Atlanta Journal-Constitution article on the dissolution of the board

Localities in Arizona and New Mexico Declare States of Emergency. At least three localities along the U.S.-Mexico border have declared states of emergency since mid-April, due to the releases of hundreds of migrants into their communities. Yuma, Arizona, declared an emergency on April 16; Otero County, New Mexico, the following day; and Deming, New Mexico, on May 13. The localities indicated they were doing so to spur state or federal governments to provide aid and assist with responses to the released migrants.

• New York Times article on Yuma’s declaration
• Alamogordo News article on Otero County’s declaration
• Albuquerque Journal article on Deming’s declaration

King County in Washington State Effectively Bans ICE Deportation Flights from Its Airport. The King County Executive signed an executive order on April 23 instructing the county to renegotiate leases with companies that facilitate the operation of charter flights used to deport immigrants from the King County International Airport. The following week, Modern Aviation—the company that facilitates ICE charter flights at the airport—said it would terminate such relationships of its own accord. The two other companies that facilitate other charter flights at the airport have said they will not take over the responsibility, effectively banning ICE flights from that location. On May 1, the U.S. Department of Transportation sent a letter to King County arguing that the county was violating federal law and that the airport was violating the terms of its federal grant agreements.

• U.S. Department of Transportation letter to King County
• Seattle Times article on the ban
• KUOW article on local and federal reaction to the ban