Even as Congress Remains on Sidelines, the Trump Administration Slows Legal Immigration

With most public attention around immigration focused on the Trump administration’s efforts to crack down on illegal immigration, the scope of a series of actions restricting legal entry to the country has gone largely unnoticed. Without need for congressional approval, the administration has initiated several small but well-calibrated actions through regulations, administrative guidelines, and immigration application processing changes. Taken together, these steps have dramatically slowed down family- and employment-based immigration, decreased refugee admissions to their lowest numbers in decades, tightened who can receive the most common temporary work visa (H-1B), and restricted naturalization for immigrants serving in the U.S. military.

Not surprisingly, many of these moves echo priorities then-candidate Donald Trump set out on the campaign trail, which included lowering annual immigration levels to “historical norms” and prioritizing high-skilled immigrants. But their thrust predates Trump’s presidential run, coming from ideas developed by Attorney General Jeff Sessions during his time in the Senate. While these proposals were once considered outside the mainstream, Trump’s adoption of a restrictionist philosophy has transformed formerly fringe ideas into serious policy considerations.

Sessions encapsulated his philosophy in the Immigration Handbook for the New Republican Majority, published in 2015. Beyond recommending termination of the Obama administration’s deferred action programs and targeted enforcement priorities, the handbook advocated cuts to overall immigration levels, including the number of admitted temporary workers, to protect wages and job prospects for Americans. The book also proposed reforms to prohibit legal immigrants from using public benefits, and rejected the idea that the country needs more workers in science, technology, engineering, and mathematics (STEM) fields. Even as Sessions has fallen out of favor with the White House, echoes of the handbook appear across the spectrum of legal immigration changes the administration has pursued, with former Sessions aide and now close presidential advisor Stephen Miller reportedly driving much of the agenda.

This article reviews actions the administration has taken to pursue its objective of reducing legal immigration, and the effects of these moves to date.

Suspending and Reducing Refugee Admissions

Refugee admissions were the first target of the new administration. Within days of taking office, the President suspended refugee admissions and reduced the fiscal year (FY) 2017 refugee ceiling to 50,000, citing security concerns and flaws in the refugee vetting process. The 53,716 refugees admitted during FY 2017 fell far short of the 110,000 ceiling established by President Obama.

The Trump administration later reduced the ceiling for FY 2018 even further to 45,000 refugees, the lowest annual level since the resettlement program began in 1980.

The administration also increased vetting for refugee applicants from 11 countries deemed “high risk”: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. As a result, admissions from these countries have drastically fallen. So far in FY 2018, 359 refugees from these 11 countries have been admitted—51 times fewer than the amount admitted during the same period last year.

The administration also attempted to indefinitely suspend entry by family members of refugees already in the United States. However, this policy was subject to a nationwide preliminary injunction by a federal judge in December 2017, which forced the administration to resume adjudicating family applications.

Slowing Family Immigration

The administration has vocally advocated for elimination of certain categories of family immigration, making this a precondition in still unresolved negotiations over the fate of hundreds of thousands of unauthorized immigrants brought to the country as children. In December 2017, the White House launched a publicity campaign against “chain migration,” using the term to define all family immigration other than that of spouses and minor children. Separately, it targeted the Diversity Visa program, which allows people from countries with low U.S. immigration rates to apply for a visa lottery.

While Congress has not acted, the administration is achieving its goal by slowing down processing of related permanent residency (i.e. green card) applications. Adjudications of immediate and nonimmediate relative immigration petitions fell sharply: U.S. Citizenship and Immigration Services (USCIS) processed 54 percent of immediate relative petitions in FY 2017, compared to about 67 percent in FY 2016 (see Table 1). Nonimmediate relative immigration processing was already low in FY 2016, with roughly 22 percent of applications adjudicated, but fell even further to 9 percent in FY 2017. At the end of FY 2017, the backlog of pending petitions in capped family categories (which span adult children and siblings of U.S. citizens, and spouses and children of green-card holders) increased by more than 35 percent, to 827,744 cases. It seems likely that USCIS is delaying adjudication of nonimmediate relative petitions because of lengthy visa availability backlogs in these categories.

Limiting Employment-Based Immigration

While the President has repeatedly advocated for an immigration system that favors high-skilled immigration, his administration’s policies have thus far worked to limit or slow the admission of some high-skilled immigrants. For example, the Department of Homeland Security (DHS) has mandated in-person interviews for all employment-based permanent residency applicants, a practice previously confined to cases that raised specific concerns. In a statement with stakeholders, the USCIS Ombudsman office indicated that diverting resources to this process will inevitably slow processing of family-based immigration and naturalization petitions in the short term.

On April 18, 2017, Trump signed the “Buy American and Hire American” executive order, which directed the Departments of State, Justice, Labor, and Homeland Security to issue new rules and guidance to protect the interests of U.S. workers and prevent fraud and abuse in the immigration system. It also tasked the agencies with suggesting reforms to ensure that H-1B visas are awarded only to the most-skilled or highest-paid beneficiaries. Since then, the government has taken several steps to meet that objective by focusing more attention on employers who sponsor workers on H-1B and L-1B visas. This heightened scrutiny is to ensure a proper employer-employee relationship exists, especially when the H-1B employee is placed at a third-party site. The administration also rescinded a policy that allowed for minimal review in cases where previous nonimmigrant visa recipients were extending or renewing a visa.

While the government has yet to release data on H-1B adjudications since the start of the Trump administration, reports have indicated rising levels of denials and challenges, or “requests for evidence” (RFEs). Between January 1 and August 31, 2017, the number of RFEs in H-1B cases increased by 45 percent, while total H-1B petitions rose by less than 3 percent in the same period. As a result of the greater scrutiny and rescission of the deference policy, individuals on their third or fourth H-1B renewals are now being denied, leaving them to face the choice of either immediately leaving the country or overstaying their authorized status.

The administration also indicated that it intends to propose regulatory changes in the H-1B program, including:

• Modifying the selection process for applications subject to the H-1B visa cap to choose the most skilled and/or highest-paid individuals.
• Redefining “specialty occupation” to restrict the number of people who qualify.
• Redefining “employment” and “employer-employee relationship,” again to limit the number of people who qualify.
• Adding additional requirements to ensure employers pay appropriate wages to H-1B visa holders.
• Establishing an electronic registration program for employers filing for H-1B visas that are subject to the “H-1B cap.”

The administration has also indicated it intends in June to end an Obama-era policy allowing spouses of some H-1B visa holders to apply for work authorization. Under the policy, from May 2015 through June 2017 more than 71,000 spouses (H-4 visa holders) were granted work authorization. Of these, 94 percent were female and 93 percent were Indian nationals. If the policy is rescinded, many H-4 visa holders—who may spend decades in the United States while waiting for their spouses’ backlogged employment-based green cards—will not be able to lawfully work.

Excluding Public Charges

The administration has yet to officially unveil an expected policy designed to keep people at risk of becoming public charges out of the country. However, changes seem imminent. Two leaked draft documents—an executive order and a proposed regulation—outline substantive revisions. The policy could effectively reduce green-card grants for low-income individuals and make permanent residents more vulnerable to deportation.

The proposed change would tap into a statutory provision allowing the government to exclude individuals from the country due to their risk of becoming a drain on public coffers, and to deport noncitizens for doing so. The provision dates to the 1882 Immigration Act, under which the entry by anyone deemed a “convict, lunatic, idiot, or person unable to take care of himself or herself without becoming a public charge” was prohibited. This exclusion ground was used extensively under the nativist Immigration Acts of 1917 and 1918, and the repatriation of Mexican nationals during the Great Depression. During that time, officials stamped the exit documents of those deported with “county charities,” excluding them from re-entry. However, after 1965, application of the public charge restriction fell significantly.

If the draft executive order, leaked in January 2017, takes effect as written, immigrants’ sponsors would have to reimburse the government if the immigrant receives certain benefits. It also indicated a potential expansion of the situations under which public benefit use would be grounds for deporting legal immigrants. The draft regulation, leaked in January 2018, would expand the situations under which individuals would be denied visas or admission on public charge grounds.

Denaturalization and Naturalization

The administration may also be prioritizing stripping certain naturalized immigrants of their U.S. citizenship. Under the Immigration and Nationality Act, citizens may be “denaturalized” if naturalization was procured illegally or through misrepresentation. On January 5, 2018, on USCIS’s motion, a U.S. district judge revoked the naturalization of a former Indian national who had used a false name to become a lawful permanent resident and subsequently acquire U.S. citizenship. This is the first denaturalization to result from a group of possible fraud cases USCIS referred to the Justice Department for prosecution, as part of an ongoing initiative called Operation Janus.

Operation Janus was launched a decade ago and identifies cases in which fingerprint records are missing from the centralized DHS database. Some of these individuals had criminal records or had been ordered removed under other identities. However, by March 2015 the Justice Department had accepted just two cases for prosecution and had declined 26. The Trump administration appears to be ratcheting up the initiative, planning to refer 1,600 cases to the Justice Department for prosecution. Recent press reports suggest the Justice Department may list denaturalization among its top priorities for its five-year plan.

Separately, there is some evidence that the administration is slowing down processing of naturalization applications. Between 2016 and 2017, the adjudication rate for nonmilitary citizenship applications fell from roughly 63 percent to 53 percent, and the rate for military naturalization dropped from about 75 percent to 54 percent (see Table 3).

By law, military recruits are offered expedited citizenship after they complete their basic training. Following the 9/11 terrorist attacks, the naturalization process was accelerated for service personnel. This favorable treatment has effectively disappeared under the Trump administration. In October 2017, USCIS announced additional requirements for naturalization, including a longer period of service required to qualify and extra background and security checks. In January 2018, USCIS announced that it was ending the Naturalization at Basic Training Initiative, which made it easier for noncitizen recruits to apply for citizenship during training; it closed its naturalization centers at three basic combat training sites.

“Extreme Vetting”

After characterizing immigration as a security vulnerability during the campaign, Trump has prioritized increasing the vetting of foreign nationals coming to the country, with mixed results. The most well-known of these efforts has been the travel ban. After the original executive order banning nationals of certain countries from entry was entangled in legal challenges, the President issued two more, which have met with the same result. The most recent version, signed on September 24, was initially subject to a nationwide temporary restraining order barring its implementation. However, after the Justice Department appealed the order, the Supreme Court allowed the administration to fully implement the travel ban while the case continues to wind its way through the judicial system.

The administration has also taken steps to increase the screening of applicants for immigrant and nonimmigrant visas, which could have the effect of slowing down admissions:

• In January 2017, the President signed an executive order suspending the Visa Interview Waiver Program, which allowed certain travelers to the United States to renew their visas without an in-person interview.
• In June 2017, a supplemental questionnaire was rolled out, in which some visa applicants must detail their travel history, residential addresses, and employment information for the past 15 years.
• The same month, some visa applicants began to be asked for their usernames on all social media accounts they used within the last five years.
• In February 2018, the President signed a national security memorandum establishing the National Vetting Enterprise to coordinate and manage the government’s vetting efforts, combining the work of the Departments of Homeland Security, State, and Justice, and the Director of National Intelligence.

Slowing Down Some, Discouraging Others

While Congress is primarily responsible for enacting major changes in immigration law, the President and his administration have broad discretion in implementing the laws and policies that emanate from them. The Trump administration has approached this authority thus far with astute awareness of how small modifications can effect wide-reaching policy change. Combined, these efforts will likely not drastically reduce the number of individuals arriving in the United States each year, but they do create impediments for those trying to enter and reduce the number able to arrive in the near future, while potentially discouraging others from trying at all. If that is the goal of this administration, it certainly has found a blueprint.

• Jeff Sessions’ Immigration Handbook For The New Republican Majority
• White House Fact Sheet on the President’s four pillar legislative fix for DACA
• Executive Order 13788, Buy American and Hire American
• Notification of Proposed Rule on Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization
• Notification of Proposed Rule on Strengthening the H-1B Nonimmigrant Visa Classification Program
• Notification of Proposed Rule on Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations
• Notification of Proposed Rule on Inadmissibility and Deportability on Public Charge Ground
• USCIS press release on an Operation Janus denaturalization
• Presidential Memorandum on Optimizing the Use of Federal Government Information in Support of the National Vetting Enterprise

National Policy Beat in Brief

Justice Department Sues California in Challenge to “Sanctuary State” Laws. The Justice Department on March 6 filed a lawsuit in federal district court in Sacramento, seeking to block the enforcement of three California laws that it argues are preempted by federal law. The laws are AB 450, which limits the cooperation that employers can provide to U.S. Immigration and Customs Enforcement (ICE) when ICE is conducting worksite enforcement operations; AB 103, which requires the state Attorney General to conduct inspections of these facilities; and several provisions of SB 54, the California Values Act. Those provisions prohibit state and local law enforcement from providing federal immigration authorities with inmates’ release date and other personal information, with some exceptions, and require a judicial warrant before inmates can be transferred to ICE custody. In addition to arguing that federal law supersedes these provisions, the Justice Department claims that two of them—the prohibitions on providing release date and personal information—violate a federal statute, 8 U.S.C. 1373, which prohibits states and localities from restricting their officials from sharing immigration status information with federal authorities.

In 2010, the Justice Department used a similar argument—that state immigration laws were preempted by federal laws—when it sued Arizona over a very different state law, SB 1070. This law required local law enforcement officers to inquire about immigration status when they stopped someone they suspected of being unauthorized; allowed them to arrest someone without a warrant if they had reason to believe the person was removable; and made it a crime for unauthorized immigrants to work or solicit work in Arizona. The Supreme Court eventually struck down most of the law’s provisions. Whether the Arizona decision is a direct precedent for the California case will be determined by the courts.

• Politico article on U.S. v. California
• Complaint in U.S. v. California
• Opinion in Arizona v. U.S.
• February 2018 Policy Beat on the Trump administration’s usage of 8 U.S.C. 1373 to penalize “sanctuary” jurisdictions

Federal Judge Declines to Enjoin DACA Rescission; DHS Will Not Remove Those with Pending Applications. On March 5, a federal judge in Maryland ruled that the Trump administration acted within its authority in rescinding the Deferred Action for Childhood Arrivals (DACA) program. Established by the Obama administration, DACA allowed unauthorized immigrants brought to the country as children to apply for work authorization and protection from deportation. In September 2017, the Trump administration announced its intention to terminate the program on March 5, 2018. However, two federal judges, one in New York and one in California, subsequently ruled against the administration and issued nationwide injunctions keeping the program alive while legal cases on the merits are being adjudicated. Thus, despite the Maryland judge’s ruling, people who have or have had DACA are still able to submit renewal applications. In the first three weeks that DACA recipients were again allowed to renew their protections, 11,000 submitted applications.

The Maryland judge barred the U.S. government from using personal information submitted by DACA applicants for enforcement purposes, saying the government could do so only if necessary for national security or public safety, and only with court permission. The Department of Homeland Security (DHS) said it would not remove DACA holders or individuals with pending renewal applications, barring security or safety threats.

• Washington Examiner article on the federal judge’s opinion in CASA de Maryland v. DHS
• USCIS data on DACA renewal applications filed
• DHS statement on enforcement actions against DACA recipients

Supreme Court Rules Immigrants with Pending Removal Proceedings Do Not Have a Right to a Bond Hearing. On February 27, the Supreme Court ruled that under federal law, detained immigrants in removal proceedings do not have the right to periodic bail hearings to determine whether they are eligible for release from detention. The 5-3 ruling in Jennings v. Rodriguez reversed a lower court decision, which had ruled that detainees have a right to bond hearings every six months. The plaintiffs in the case had also asked the court to decide whether the law allowing immigrants to be detained without a bond hearing violates the Fifth Amendment. Because the federal appeals court did not rule on this question, the Supreme Court remanded the case to the appeals court to do so.

• BuzzFeed article on the decision
• Supreme Court opinion in Jennings v. Rodriguez

Attorney General Imposes Limitations on Asylum Seekers. U.S. Attorney General Jeff Sessions has vacated one Board of Immigration Appeals (BIA) decision and is reviewing another, both of which provided certain protections to asylum seekers. The Attorney General has the authority to refer BIA rulings to himself for a final decision. Sessions overturned a 2014 decision that established that all asylum seekers have a right to a hearing before an immigration judge. As a result, judges may now deny asylum claims if they determine upon initial review that the claim is fraudulent or has a low chance of success.

Sessions also decided to review a 2016 BIA decision that allowed a Salvadoran woman who had fled domestic violence and abuse to apply for asylum. To qualify for asylum, a claimant must demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Sessions is seeking to review whether a victim of a private crime, such as domestic violence, can be considered part of a particular social group. If he changes the decision, it would be more difficult for women fleeing similar situations to receive asylum. It also may make gang violence victims less likely to get protection, as that is also considered a private crime.

• Washington Post article on the asylum hearings decision
• 2014 BIA decision in Matter of E-F-H-L-, requiring hearings for asylum seekers
• CNN article on the domestic violence decision

CIA Director Mike Pompeo to Be Nominated to Replace Secretary of State Rex Tillerson. On March 13, President Donald Trump announced that he would nominate current CIA Director Mike Pompeo to serve as Secretary of State, replacing Rex Tillerson. Pompeo previously served as a Kansas representative in the U.S. House, where he supported several bills to limit refugee resettlement—which falls under the jurisdiction of the State Department. In 2016, for example, he was among 86 Republicans who sponsored legislation that would have completely stopped the refugee resettlement program.

• Foreign Policy article on Pompeo’s support of a ban on all refugee resettlement

Federal Judge Allows Border Wall to Proceed. A U.S. district judge in California ruled on February 28 that DHS acted within its authority when it waived dozens of environmental protection laws in order to construct border wall prototypes and replacement wall in San Diego. The waiver authority has been used in past administrations, and consistently upheld by courts, in this most recent case after being challenged by environmental groups and the state of California. Under the Trump administration, DHS has also waived compliance with environmental laws in New Mexico.

• CNN article on the decision in In Re: Border Infrastructure Environmental Litigation

State Policy Beat in Brief

Circuit Court Rules Texas Can Move Forward with Sanctuary Cities Ban. The Fifth U.S. Circuit Court of Appeals ruled that Texas’ ban on “sanctuary cities” can take effect immediately, reversing an August ruling by a federal judge in San Antonio temporarily blocking its enforcement. The three-judge panel unanimously ruled that the ban, under Senate Bill 4 (SB 4), can be implemented while the case on the merits proceeds, concluding that those challenging the ban were not likely to succeed. Seen as a state retaliation against local jurisdictions resisting cooperation with federal immigration enforcement, SB 4 forbids localities and college campuses from adopting sanctuary policies or preventing their officers from inquiring into the immigration status of individuals under lawful detention or arrest. It requires law enforcement agencies to comply with requests from federal immigration authorities to hold foreign nationals, making it a misdemeanor for sheriffs, chiefs of police, or constables to fail to comply.

• Fifth Circuit Ruling in City of El Cenizo v. Texas
• New York Times article on the case
• May 2017 Policy Beat on Texas’ initial enactment of SB 4

Oakland Mayor Warns Residents of ICE Operation. Oakland Mayor Libby Schaaf on February 24 warned the residents of her city that ICE would be making immigration arrests starting the following day. She quickly faced backlash from ICE officials, who accused her of helping criminals avoid arrest. ICE announced later that week that it had made 232 arrests in the San Francisco area (including Oakland), 115 of whom had been convicted of serious or violent felonies. In the aftermath of the raid, multiple officials, including Attorney General Jeff Sessions and ICE Director Thomas Homan, repeatedly suggested that hundreds of criminals had escaped because of the mayor’s actions. Pushing back against this, an ICE spokesman resigned from the agency’s San Francisco office, stating he did not want to “perpetuate misleading facts.”

Since California passed laws in October 2017 limiting ICE cooperation with state and local law enforcement agencies, ICE officials have said they plan to increase arrests in the state’s public areas, activities more likely to ensnare bystanders in addition to the people targeted. Since President Trump took office, there have been several instances of local officials issuing warnings about upcoming ICE operations, but they have generally turned out to be false rumors.

• San Francisco Chronicle article on the mayor’s warning
• ICE news release on the San Francisco-area operation
• Eagle-Tribune article on a Haverhill, Massachusetts City Councilor’s warning of ICE raids
• The Enterprise article on a Massachusetts state representative’s warning