Election 2020: Biden and Trump Differ Dramatically on Immigration

Roy Maurer By Roy Maurer October 21, 2020
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This article is part of a series reviewing the similarities and differences between the two presidential candidates' positions on workplace issues. Other topics covered include labor relations, paid leave, minimum wage, health care and retirement assistance.

"Night and day" was the phrase most used by experts interviewed for this article to describe the stark differences on immigration policy between President Donald Trump and former Vice President Joe Biden. But some also pointed out surprising areas of common ground when speaking specifically about employment-based immigration.

President Trump's re-election would likely lead to continued strict enforcement of immigration laws, further regulatory and adjudicative limits on business immigration—specifically in light of soaring unemployment in the wake of the coronavirus pandemic—and possible progress made on the creation of a points-based immigration system that favors skills over family ties.

Biden's plan calls for reversing what Trump has done on immigration since 2017, including halting the president's executive orders and proclamations restricting travel, limiting green cards and guest worker programs, and eliminating the Deferred Action for Childhood Arrivals (DACA) program, which granted protection to certain undocumented immigrants brought to the country as children.

Biden's platform also outlines larger goals to work on with Congress, such as increasing the number of employment-based visas; providing a path to legalization for the 12 million undocumented immigrants in the country; and creating a new, decentralized immigration stream for foreign workers that is based on local and state needs.

The candidates' views of immigration differ largely because of the assumptions being made about the contributions that immigrants make to the economy, explained Isabel Soto, director of labor market policy at American Action Forum, a Washington, D.C.-based policy and research group. "While President Trump's policies reflect a view that immigrants harm native-born workers, Biden's proposals assume that immigrants make economic contributions," she said.

There are some possible areas of overlap, however, said Angelo Paparelli, an attorney in the New York City and Los Angeles offices of Seyfarth and one of the foremost experts on U.S. immigration.

"Biden's 'Build Back Better' message sounds a lot like Trump's Buy American, Hire American executive order," he said. "In some respects, the H-1B area [involving visas for foreign professional workers] will not be that different under a President Biden than under Trump."

Biden's platform talks about establishing a wage-based allocation process for temporary foreign workers and enforcement mechanisms "to ensure [employment-based visas] are aligned with the labor market and not used to undermine wages" or "used to disincentivize recruiting U.S. workers" for in-demand occupations.

For more on this year's election, see the SHRM Government Affairs Team's Election Resources.

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Trump Will Stay the Course

The Trump administration has shown a divided stance when it comes to employment-based immigration, said Julia Gelatt, a senior policy analyst at the Migration Policy Institute (MPI) in Washington, D.C. "On the one hand, we know that work is being done on a merit-based immigration proposal, which would create more employment-based immigration at the cost of family-based immigration. But at the same time, we've seen the shutting down of all kinds of immigration, including employment-based immigration, and skepticism about the value of any immigration."

The Trump administration has issued more than 400 policy and regulatory changes to the immigration system, according to a count by MPI.

The most recent interim final rules for H-1B visas—narrowing the definition of the occupations eligible for the visas and increasing the wages employers would have to pay H-1B workers—are potentially the most significant.

"These rule changes [address] the way an H-1B position and an individual's background would be assessed for qualification, attach new requirements to H-1B wage levels—where possibly only the highest wage levels will qualify—and add additional requirements to H-1B cases involving placement at third-party client sites," said Hendrik Pretorius, an immigration attorney and CEO of ImmiPartner, an immigration legal services firm based in San Francisco.

Phil Curtis, co-founder of immigration law firm Chin and Curtis in the Boston area, noted that there has been little rulemaking on immigration during Trump's first term; instead, the administration has relied on agency policies, memos and guidance. "A couple of big examples are the memo that said deference will not be given to prior adjudications, and higher adjudication standards generally," he said.

Pretorius said the adjudication policies issued over the last four years have resulted in a dramatic increase in requests for evidence and denials of petitions for H-1B workers.

"This has led to constant unpredictability [and] longer onboarding times for employees, and has left companies struggling to bridge the gap in STEM [science, technology, engineering and mathematics] talent available in the U.S.," he said.

In a second term, experts point out that Trump has promised to eliminate work authorization for H-4 visa holders, put an end to at least some of the work options for students and continue to crack down on temporary worker programs.

Trump's plans to reshape the U.S. immigration selection system to give greater preference to green card applicants' skills over their family ties will be a tougher feat to pull off, as it depends on cooperation from Congress, said Lora Ries, a senior research fellow at the Heritage Foundation and a former chief of staff at U.S. Citizenship and Immigration Services under President Trump.

The administration's proposal—based on the points systems used in Australia and Canada—would evaluate immigrants for green cards through points assigned for age, skills, job and salary offer, education, and English-language proficiency. The plan calls for raising the percentage of employment-related immigrants—which includes workers' dependent family members—from 12 percent annually to 57 percent and cutting back family-sponsored immigration from about 66 percent per year to 30 percent.

Ries said President Trump would attempt to rescind the DACA program again, addressing the points raised by the Supreme Court in June when it rejected the administration's effort, saying it was done "in an arbitrary and capricious" manner.

Since then, the administration has not been accepting new DACA applications and has been limiting renewals to a year. But Trump has also teased that protections for DACA recipients could be part of a broader immigration reform package that includes enhanced border security and the introduction of a merit-based selection system.

Biden to Reverse Course

If he wins the presidential election, Biden could immediately rescind any of Trump's executive actions. Presidential proclamations and executive actions such as the various travel bans should be the easiest to undo, though he has not said if he would immediately reverse President Trump's pandemic-related border closures.

Paparelli said Biden will likely immediately issue an executive order reinstating and possibly expanding DACA and may try to resurrect the related program for the parents of DACA beneficiaries.

Reversing regulatory changes—like the so-called public charge rule, which gives consular officials more power to deny permanent residency to applicants the government determines may rely on public benefits—would take longer. "A Biden administration may face as much litigation as a Trump administration has, so they will have to be careful when dismantling regulations," Gelatt said.

The Biden campaign proposes several ideas to expand employment-based immigration, such as providing paths to legalization for undocumented immigrants generally, and specifically for DACA recipients, undocumented farmworkers and international students in STEM programs.

"Biden doesn't say much about employment-based immigration on the campaign trail, but he does say that he wants to establish a wage-based process for H-1B allocation, which favors highly paid workers; increase the number of green cards available for workers; and scrap the per-country green card limits, which have kept immigrants from countries like India and China waiting years for a green card to become available once they've been approved," Curtis said.

Changes to green card caps and programs creating paths to legal status would need to be approved by Congress. And that's not a sure thing.

"It's less clear that a President Biden could reverse course on the posture that's been taken on H-1B visas, especially as we're still in an economic recession and dealing with a public health crisis with high unemployment," Gelatt said.

The same holds true for another stab at comprehensive immigration reform, which Biden has vowed to pursue. He supported the bipartisan comprehensive immigration package that passed the Senate in 2013 but could not get approval from the House of Representatives.

"Attempts to come up with something comprehensive is what historically makes it difficult to accomplish," Paparelli said. "When everyone tries to add their own pet idea, the pieces don't gel."

Pretorius noted Biden's aim to create a decentralized visa allocation system. "The idea would be to target a new visa toward communities confronting chronic population stagnation as a means of boosting economic dynamism. This would be like the tremendously successful program in Canada where provinces and territories have benefited by having access to additional work-authorized immigration options based on local economic needs."

Holders of these visas would be required to work and reside in the city or county that petitioned for them and would be subject to the same certification protections as other employment-based immigrants.

Worksite Enforcement

Experts believe that the Trump administration would continue heightened worksite enforcement, especially targeted at industries likely to yield undocumented workers. Biden said he would end worksite raids in which undocumented workers are rounded up and arrested, returning to Obama-era enforcement methods in which employers are audited and fined for Form I-9 noncompliance instead.

"There will be some form of policing and exclusion function no matter who's in charge, which will include employer sanctions of knowing unlawful employment," Paparelli said.

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