Trump Introduces New Immigration Plan

 

By Allen Smith, J.D., and Roy Maurer May 17, 2019
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​President Donald Trump introduced a new merit-based immigration proposal which could make permanent residency available to more foreign national workers. The plan provides opportunities for immigrants who have specific skills or current job offers in the U.S., with the requirement that they can demonstrate English proficiency and pass a civics exam.

Trump said the proposal will create a "fair, lawful and modern immigration system" and the new system "protects American wages, protects American values, and attracts and best and brightest" immigrants. Top graduates and employed professionals from other countries often have difficulty working in the U.S. or move to other countries because, under the current immigration system, we "discriminate against genius and discriminate against brilliance," said Trump. To become citizens, Trump explained that immigrants must be proficient in English and pass a civics test, and that his proposal would "create an immigration system to make America safer, stronger and greater than ever."

The Society for Human Resource Management (SHRM) said in a statement: "We appreciate the administration's efforts in bringing forward a proposal that includes reforms to our outdated workplace immigration system."

"As the United States faces growing skills gaps, employers need a modern workplace immigration system that provides greater access to top talent and acknowledges that employers are best positioned to determine their skills and workforce needs," said SHRM.

[Visit SHRM's resource page on workplace immigration.]

Right now there are significant backlogs for people of certain nationalities, particularly India, obtaining green cards. Many of those individuals have H-1B visas for professionals in specialty occupations, explained Leon Rodriguez, an attorney with Seyfarth Shaw in Washington, D.C. If the permanent immigration system switched from an allotment of slots for those from various countries to a merit-based system, many of these professionals would have more of an opportunity to obtain green cards, he noted.

Initial reaction to the plan has been mixed, falling mostly along party lines. Passage likely will face an uphill battle from those in Congress who seek more comprehensive legislation.

[SHRM members-only toolkit: Understanding and Obtaining U.S. Employment Visas]

Merit-Based Immigration Proposals Have Been Made Before

The president's merit-based immigration reform proposal resembles the merit-based framework in 2017's RAISE Act, a bill that was not enacted.

The RAISE Act also would not have increased the number of employer-sponsored green cards, which have been capped at 140,000 annually since the system was created in 1990. And per-country quotas for employment-based visas would no longer have applied.

Under that merit-based proposal, foreign workers would have applied online to U.S. Citizenship and Immigration Services for eligibility. They would receive an immediate score, on a scale of 0 to 100, based on education, age, job, whether they are investing in a business, extraordinary achievements and English-language ability—many of the same factors Trump's proposal would consider. Twice a year, the agency would invite the applicants with the highest scores to pay a fee and complete an application with proof of points eligibility. If more qualified applications were received than visas that were available in the annual 140,000 allotment, visas would be issued but admission delayed until the next fiscal year, decreasing the numbers available for the following year.

Earlier this year, SHRM released research on the skills gap and how workers born in other countries could ease the difficulty in recruiting.

Congressional Approval Still Needed

Susan Cohen, an attorney with Mintz in Boston, is concerned that Trump's proposal is too much like the RAISE Act and strips employers of having input in the immigration system. Instead, she said, individuals' points seem to count while employers' opinions about who it wants to hire do not. The president's proposal is lopsided to admit extremely high-skilled immigrants, but not the generally skilled or low-skilled workers many employers need, she said.

Unlike the RAISE Act, Trump's proposal would keep the number who obtain permanent legal residence annually, approximately 1.1 million, at the same level, according to The Hill. The RAISE Act would have reduced overall legal immigration by 50 percent within 10 years.

Rodriguez said that the absence of any discussion of Deferred Action for Childhood Arrivals (DACA), an Obama-era program that exempts immigrants who came to the U.S. as minors from deportation and grants them work permits, dooms the proposal's chances of enactment in the House of Representatives.

"From employers' standpoint, the devil will be in the details," said Jacob Cherry, an attorney with Ogletree Deakins in Atlanta, noting that so far much of the proposal has been in broad strokes. He added that he thought most of the changes were significant enough that the president would need congressional approval to proceed.

SHRM said it plans to work with both parties in Congress and the White House to come up with bipartisan solutions that provide work-authorized talent, while protecting American workers.

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