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Law360 (November 16, 2020, 6:12 PM EST) --

While immigration issues have been a focal point of countless U.S. presidential elections, this superficial rhetoric only serves to complicate the problem. The only solution is for Congress to act.

Much like the current state of U.S. immigration policy, its history is complicated. Even though the U.S. is known as a melting pot founded by immigrants, the country hasn't always experienced mass immigration. U.S. immigration has historically alternated between permissive and restrictive policies since the first immigration laws were enacted in the late 18th and early 19th centuries.

Until recently, those changes were always driven by Congress.

So what's changed? With so many pressing immigration issues including the Deferred Action for Childhood Arrivals policy, sanctuary cities, illegal immigration, temporary workers and restrictions in response to the global pandemic Congress has all but disappeared when it comes to meaningful changes in immigration policy.

In 1965, Congress made what are arguably the last significant changes to the U.S. immigration system to date. In the 55 years following these amendments, Congress has been relatively silent, even though several major components of the current immigration system no longer work as intended.

Presidents continue to act, or rather attempt to act, on immigration, but these are merely stopgap measures typically politically motivated attempts to pander to their base rather than effective legislative changes. As a result, U.S. immigration policy has become a political quagmire in desperate need of an update.

U.S. immigration law is antiquated and faulty. It fails to reflect our economic, social or as of recently public health concerns. The application process is difficult to navigate, the number of available employment and family-based immigrant visas isn't enough to meet demand, and the costs associated with filing applications are now reaching unaffordable levels.

In some instances, the backlog for U.S. immigration is so great that the government is currently processing petitions that were filed in the late 1990s, meaning applicants are facing delays of over 20 years.

The pandemic added a new layer of complexity to an already decaying immigration model. Pandemic-related immigration restrictions abounded in a desperate, and misguided, attempt to bolster the U.S. economy prior to a hotly contested election. Immigration restrictions were painted as an America-first path toward healing the U.S. economy, but employment shortages continued in both technology and health care.

Both are industries desperate to hire additional workers and there aren't enough skilled American workers to fill those roles. Without a congressional solution, employers will move abroad to fill empty roles, as legal immigration seekers are barred entry from communities in the U.S., in which they would buy homes, settle down and invest in local economies

One study found that H-1B visas will create an estimated 1.3 million new jobs and add around $158 billion to gross domestic product in the United States by 2045.[1] The U.S. government is essentially throwing away money and jobs that could be created by simply increasing the amount of H-1B visas allocated each year.

To make matters worse, the 85,000 lucky individuals chosen in the H-1B lottery each year are slapped with thousands of dollars in government filing and processing fees, and are subject to inconsistent adjudications by U.S. Citizenship and Immigration Services.[2]

The problem is further aggravated when individual agencies attempt to take matters into their own hands, bypassing normal legislative processes. For instance, in early October, the U.S. Department of Labor and the U.S. Department of Homeland Security published new rules in an attempt to restrict and curb the issuance of H-1B visas and employment-based green cards.

One rule significantly increased the required wage that must be paid to H-1B workers by changing an already inferior mathematical formula for computing the minimum or prevailing wage paid to the professional. Specifically, an entry-level professional H-1B status must now earn a salary paid to the 45th percentile of workers in the geographic area of that occupation, rather than the formerly assigned 17th percentile of workers.

Take the example of an entry-level H-1B professional software developer in Chicago making $70,000 annually. Where the former minimum wage rate for H-1B purposes was set at $63,190, the minimum is now $85,010.

This sudden change in wage requirements rolled out under the guise of COVID-19-related economic recovery is putting H-1B employers in an impossible position. Even more notably, this particular wage rule bypassed the regulatory review process and became effective immediately upon publication, without any input from stakeholders and businesses. Not surprisingly, lawsuits were immediately filed, and many stakeholders are hopeful for a nationwide injunction.

These are only a few of the ways Congress' lack of action has negative impact on the U.S. economy.

Politicians have a difficult time preserving U.S. jobs while maintaining the American legacy of a welcoming nation. No politician wants to campaign for more foreign workers unions, lobbyists and special interest groups would have a field day with this type of campaigning.

The fact remains, however, that a large portion of the U.S. economy, especially in the tech and medical fields, is largely dependent on foreign labor and that there are too few temporary work visas available to address the need.[3] So how do you address and fix such a complicated problem while taking all of these points into consideration? The answer is deceptively simple.

Reassess Quotas and Increase Annual Ceiling

Congress should reassess the current quota system and increase the annual ceiling on Eastern and Western hemisphere immigration. Even if the number of available family and employment-based visas was increased temporarily, it would alleviate pressure on the government agencies processing petitions and drastically reduce backlogs that are in place for those who have been approved and are just waiting for a visa to become available. It would be a win-win for everyone.

Further, the U.S. immigration law needs to contain a guest worker program, outside of the current H-2 visa program. As a nation, we need to create a system that allows temporary workers entry to provide critical agricultural services. The current procedure for this type of entry is complex, inefficient and expensive. A less formal program is needed to allow foreign nationals to enter the U.S. for agricultural and skilled labor positions while cutting down costs and inefficiencies.

Changes will be coming down the pipeline under the new Biden administration. Biden has already vowed to start work on his first day in office to reverse Trump's agenda by reuniting children and parents who were separated at the border, restoring asylum laws at the border to protect those fleeing persecution, and reversing anti-Muslim travel bans.[4]

As part of this, Biden will also immediately release a 100-day ban on deportations.[5] However, no matter what Biden has in store, Congress will be key to making those changes permanent.

To create lasting, impactful change, we need Congress to focus on fixing the system as a whole instead of relying on questionable stopgap measures implemented from the White House. Immigration issues will continue to dominate the headlines the DACA saga alone has been ongoing since 2012 because, ultimately, the power to determine the future of U.S. immigration lies with Congress. It needs to create a solution now. America can't afford to wait another 55 years.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.americanimmigrationcouncil.org/research/h1b-visa-program-fact-sheet.

[2] https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2021-cap-season#:~:text=Congress%20set%20the%20current%20annual,subject%20to%20this%20annual%20cap.&text=H%2D1B%20workers%20in%20Guam,31%2C%202029; https://www.mercurynews.com/2020/07/31/h-1b-fees-to-jump-visa-dependent-firms-targeted-homeland-security-says/.

[3] http://research.newamericaneconomy.org/wp-content/uploads/2014/06/pnae_h1b.pdf; https://www.fiercehealthcare.com/healthcare/nursing-shortage-hits-crisis-levels-but-immigrant-nurses-may-provide-relief-if-they.

[4] https://joebiden.com/immigration/.

[5]https://www.washingtontimes.com/news/2020/jul/8/joe-biden-immigration-plan-grants-citizenship-11-m/.

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Congress Should Take Responsibility For Immigration Reform - Law360