Corporate Meeting

Corporate Virtual Meeting: Trump, Immigration, and COVID-19

Thursday, June 25, 2020
Carlos Osorio/Reuters
Speakers

Bernard L. Schwartz Senior Fellow, Council on Foreign Relations

Member and Immigration Practice Group Co-Chair, Dickinson Wright PLLC; Former National President and General Counsel, American Immigration Lawyers Association

Presider
Alexandra Starr

Contributor, National Public Radio; Spencer Fellow, Columbia School of Journalism

Corporate Program Virtual Meeting

The Trump administration has expanded immigration restrictions to suspend until the end of 2020 the issuance of most visas for foreign workers, including those for high-skilled employees and for intra-company transfers. Our panelists discuss the ramifications for business and U.S. competitiveness.e Trump administration has expanded immigration restrictions to suspend until the end of 2020 the issuance of most visas for foreign workers, including those for high-skilled employees and for intra-company transfers. Our panelists discuss the ramifications for business and U.S. competitiveness.

Transcript

STARR: Thank you so much. Thank you to everyone for joining us this afternoon. I’m Alexandra Starr. I cover immigration issues primarily for National Public Radio, and I’m also a Spencer fellow at Columbia Journalism School.

With me this afternoon is Kathleen Campbell Walker. She’s an immigration attorney with Dickinson Wright, and former national president of the American Immigration Lawyers Association. And we have Ted Alden, who is the Bernard Schwartz Senior Fellow at the Council on Foreign Relations.

So there’s been a lot of news on the immigration front, particularly in the last week or so. I thought we could start by talking about the administration’s announcement this week that there would be no H-1B visas for this year. So, Ted, do you want to start with that and talk about the consequences that might have for American businesses and American competitiveness?

ALDEN: Yeah, I’d be happy to. Thanks very much, Alexandra. It’s great to be here with you and to be here with Kathleen. I was actually just prior to this meeting going back to the project that Kathleen and I worked on together many years ago now, in 2008 and ’(0)9. And it was the immigration taskforce—the independent taskforce from the Council on Foreign Relations on U.S. immigration policy that was chaired by—co-chaired by Jeb Bush and Mack McLarty. And I was looking back at our summary at the time. And we were talking about the need for the United States to reform its immigration laws. There are people on the webinar who will remember back in ’06-’07, and again 2012 and ’13 there was a major effort at comprehensive immigration reform.

And this is just by way of providing some background before I’m going to answer your question directly. We wrote: The stakes are too high to fail. If the United States continues to mishandle its immigration policy it will damage one of the vital underpinnings of American prosperity and security and could condemn the country to a long decline in its status in the world. And I’m afraid to some extent that what we are seeing play out today are the continued consequences of the failure to reform our immigration laws when we had these opportunities.

So particularly with the Trump administration, I think, you know, what has surprised some people a little bit is that the administration has been focused not just on cracking down on illegal immigration, not just on concerns over asylum seekers, but is quite suspicious of legal immigration, of the high-skilled immigrants and others that the research shows pretty clearly bring enormous benefits to the United States. And so we saw in April the COVID crisis used as a pretext for shutting off most forms of employment-based green cards and many aspects of family immigration as well.

And then with this most recent announcement this week, the administration is suspending through the end of the year the issuance of H-1B visas, which are used for high-skilled workers, many of them in the tech industry, L-1s, which are intracompany transfers. So a lot of foreign multinationals with operations in the United States have to move—(audio break). The J temporary visas, summer camp counselors, au pairs, there’s some university applications, and others. And then finally I think those are the main ones, but I think there was maybe one other category as well. But Kathleen will fill in.

WALKER: H-2B. It was H-2B.

ALDEN: Yeah. So—oh, sorry, the temporary—(audio break). So this really is—(audio break)—in the United States. And we can talk—(audio break)—

STARR: Actually, Ted, can I interrupt you? Can you redial in? Because we’re having a little—we’re having issues with your connection.

ALDEN: I will try again, thanks. I’ll turn it over to Kathleen. I’ll come right back.

STARR: Yeah. (Laughs.)

WALKER: Oh, fine. (Laughs.)

So where would you like me to pick up, Alexandra?

STARR: You know, Ted just gave us so much information. Why don’t we start with the H-1B? That’s the most recent piece of news that we’ve gotten, right? I’m interested in your take on what impact that will have and whether you can address the issue that the Trump administration puts forward that this, quote, “steals jobs” from American workers, and that’s why they feel obligated to take that step at this time.

WALKER: OK. Let me start with just sort of a recap on the categories because I was having trouble hearing Ted as well.

So what we’re talking about as far as this proclamation that was issued on June 22, and it became effective as to these non-immigrant categories, the four of them, only as well as to their dependents. They are the H-1B, the H-2B, the L-1, and the J-1. As to the H-1B, let’s just talk about what the impact is, but it’s also applicable to these other four categories that we just mentioned. What it’s doing is it’s saying that there are three factors that you have to meet. And if you meet those factors, then you will not be able to enter the United States in those four categories between the effective date, which is the 24th of June, and December 31. So what we’re talking is a pause in the ability to enter the United States, which is governed by the Customs and the Border Protection officers, and a pause in the ability to get visas in these categories from the State Department, which are the consular officials.

So OK. What does it mean regarding, for example, the typical H-1B? And what are these three main factors? Which I think are really hard, and I’d love to hear what Ted thinks about how it’s worded because we’ve been debating it since it’s been issued within the American Immigration Lawyers Association and have several different updates on it, on the interpretation so far.

So the three factors: Am I outside of the United States on June 24? And we’re talking about whether or not I’m subject to this ban on the ability to get in and to get the visa. Am I outside of the United States on June 24? Do I not have a valid non-immigrant visa? We’re not sure if it can be in any category yet. That’s an unknown. Or is it just the four we’re talking about? And finally, do I not have any travel document? And what the heck is that? It’s now been defined by one CDP representative as it’s not a 797 approval notice that allows you to remain in the U.S. It’s not an I-94 admission record. What it is, it’s a boarding foil, pardon me, a transportation letter, or advanced parole? Those are all technical things which we can discuss if you wish.

But so what does it mean for me if I’m outside of the United States and I’ve gotten this approval in the lottery this year for an H-1B cat subject—category approval? It means that I’m not going to be able to get an H-1B appointment to get a visa to enter the United States between June 24 and December 31 unless somehow I meet a national interest waiver—I use “waiver” loosely on that—or if somehow I might be engaged in the food supply chain. So I’m stuck, and so is my employer. I have several clients in that circumstance. So we’re all put on a pause in those circumstances through the end of the year. And we’re struggling to figure out do we have alternatives to be able to bring the individual into the U.S.?

So that’s a lot of disruption. And then for those that are within the United States, remember those three factors that are in the conjunctive, with an “and,” within the United States, the visa, the travel document. So if I’m within the United States and I’m trying to move, for example, like a lot of students on F-1, from F-1 into H-1B effective October 1, if I’m lucky in the lottery, then I’m going to be able to remain in the United States because I transitioned from F to H.

But as far as my ability then to leave the United States and go get a visa if I wanted to be able to travel, we’ve got a debate going on. Can I get the visa in that circumstance, or I’m not going to be able to? And that’s a problem. And then the other problem is renewals, and we’ll talk about that later if you wish. So this is one of those minutiae immigration things that affects us in a lot of different ways and that makes it really complicated to explain.

STARR: Yeah. I think what might be helpful for our listeners is to sort of get a primer as to what these visas—you know, which category applies to which person.

WALKER: OK.

STARR: So do you and Ted want to divide them up? (Laughter.)

WALKER: Whatever Ted prefers.

STARR: Ted, which do you want to take?

ALDEN: Kathleen, why don’t you go ahead because you know the categories in much more detail than I do. I can talk about some of the general impacts. But why don’t you just run down the big ones in terms of H and L and J visas?

WALKER: Let me—OK. We’ll rip through it real fast.

So H-1B, specialty occupation—you’d think that would be simple. It’s not. I’ve got a degree. The job requires a degree, and as the employer is going to pay the higher of the actual or the prevailing wage for the area of intended employment, I want to make sure and say that because you asked me, Alexandra, earlier to address the issue of taking jobs away. I have to pay almost three grand in order to apply for this thing, this H-1B category, and I have to make sure that I meet those requirements on the payment of that wage, and that’s a big investment for an employer if I’m complying with the laws that exist.

The L-1, intercompany transferee. In order for me to be able to do this as an employer, I’m typically showing how I’m growing my business and I’m employing U.S. workers, and I’m bringing experienced individuals from my related company abroad to help me expand my business in the United States. Part of that business plan is normally creation of jobs. Similar to the E visa in some ways, and we have lots of multinational companies with thousands of employees in the United States using the L category. One of my companies that I work with they employ twenty thousand people in the United States. The vast majority are not foreign nationals.

The J-1 category, exchange visitors. Now, there’s a bunch of different subcategories. The ones that we’re talking about that are affected here are interns, trainees, teachers, camp counselors, au pairs, and the summer work travel program, as well as dependents.

So those are the categories impacted and, again, the J program that’s administered through the ECA department of the Department of State has a lot of restrictions on insurance, where the person is going to be, what the person is going to be paid, and you can look that up on the internet. Just J-1, Department of State. You could find out a lot of information about it.

Finally, the H-2B category. Not for agricultural workers. This is for nonagricultural workers in a variety of different positions that are temporary in nature, transitional, where you come in, and there’s a lot of requirements regarding what’s the wage, where are you going to work, what are you going to be doing, and you’re subject to oversight on your site from the government. So that’s the quick rundown.

ALDEN: Let me—if I—if I could just add, Alexandra, I mean, in terms of the broader theme of economic competitiveness, the H-1B and the L visa in particular are absolutely critical to the success of U.S. companies in the tech sector, of foreign companies investing in the United States. I mean, the thing that makes the United States still quite unique among the advanced economies is we’ve got this incredible pipeline that kind of works through our universities.

So you have foreign students, largely, in science and engineering, coming and studying at the best universities, and we’ve got this path that runs through the optional practical training program that this administration also wants to curb, to the H-1B visa and, eventually, though often with very long waits, particularly for people from India, to a green card, and it’s been a powerful pipeline which has attracted the lion’s share of talented scientists and engineers from around the world.

I mean, there was a study from MacroPolo, the think tank at the Paulson Institute in Chicago, last week or the week before—I don’t remember exactly—looking at researchers working on artificial intelligence, and China is graduating far more of those researchers than any other country. But almost half of them are coming to do graduate work in the United States and then 90 percent of those are staying here in the United States.

So the real danger here is that we sever that pipeline and bright potential immigrants thinking about the United States versus other places may say, this is just getting too risky to try to build a life for myself in the United States.

I mean, on the L-1 visa side, every state in the country wants to attract foreign investments critical for job creation. Companies are going to be really reluctant to invest if they can’t bring any of their own executives over to work in the United States, and there is an international competition for that investment.

So, you know, each of these steps, little by little, erodes our competitive position in the world economy and I think to some extent, because this administration has rolled these things out over a very long period of time, it’s kind of snuck up on us a little bit. But if you look at the current situation, it’s by far the most restrictive we’ve seen in the United States since, I don’t know, 1920s maybe. I don’t know what the appropriate comparison. It’s a long time when we’ve been in a similarly restrictive position regarding immigration.

STARR: Actually, and I think a follow-on to that, which we haven’t discussed in detail, is the extended ban on green cards that, you know, was first announced a few months ago and now we’ve been told will extend through the year.

What kind of impact do you think that is going to have on the attractiveness of the United States, you know, as a place to attempt to relocate when you talk about these highly sought after workers?

And then, I guess, also, Kathleen, I’d be interested, too, in your perspective on how this impacts your clients just on—you know, these are real people, right—(laughs)—who are trying to—(inaudible)—here.

WALKER: Yes, it is, people’s lives. We’re playing with people’s lives and creating unpredictability and uncertainty. And often what happens is, you know, for example, something as simplistic as a fiancé visa right now, the proclamation that was issued as to immigrant visas April 23, it doesn’t specifically state that K-1s, which—it’s kind of this hybrid kind of visa for fiancés. It’s sort of like a nonimmigrant visa, but they have immigrant visa overtones on how you get it. And, basically, if you have a fiancé visa already petition approved, you’re stuck, unable to get appointments because the appointments are suspended.

I want to make sure and correct, at least from my perspective, the word or phrase green card, because the permanent resident card that’s issued is done by U.S. Citizenship and Immigration Services, and what we’re talking about are people applying at consular posts. So they’re taking the path, being outside of the United States, trying to get a visa to lawfully immigrate to the United States. They’ve already gone through this preliminary process with U.S. Citizenship and Immigration Services to say, hey, I qualify, and they’re stuck in interminable limbo right now, not knowing how they can immigrate.

Now, this does not apply to certain immediate relatives like, you know, I’m a spouse of a U.S. citizen. However, parents of U.S. citizens are in this limbo. So what’s happened is that people’s lives are totally disrupted. Immigration lawyers are dealing with changes on a day-to-day basis on what an interpretation may be.

We check every day about whether or not certain consular appointments are available, whether it’s on the nonimmigrant side, the part that just was affected in June, or the immigrant side, and we have the overlay from March 20. Consular services have been suspended, both immigrant and nonimmigrant.

So we’ve already been dealing with the inability to get these appointments and now we have this on top of it. So it’s an insane world that we are trying to deal with.

STARR: Yeah. Ted, do you want to address the issue of this decision to suspend green cards and the broader impact that might have?

ALDEN: I mean, I think—you know, I think what’s important to recognize when talking about the Trump administration’s approach is just philosophically how different this is from every administration—Republican, Democratic—for the last, you know, four or five decades. So the Trump administration, fundamentally, sees immigrants as competition for U.S. workers; jobs that are being taken by immigrants are not available for U.S. workers. And so, you know, the suspension of employment-based green cards or the suspension of H-1Bs, it all comes out of that same philosophy that, well, we’re in a jobs crisis—which we are, clearly, right now, as a—as result of the COVID shutdown—we should save all the jobs that are going to be created for Americans.

The problem is, everything we know about the modern U.S. economy suggests that that’s not the way job creation operates. A lot of the jobs are being created at dynamic companies, many of them technology companies that are on the leading edge of the sectors in which they’re working. And having top-rate people, both Americans and people from the rest of thew world, is critical to the expansion of those companies. You look at immigrants in terms of entrepreneurialism—I know you worked on this, Alexandra—you know, they start a lot more companies on a—on a sort of per-person basis than Americans do. So the evidence on this is just absolutely clear that these immigrants are creating a lot more jobs in the United States than they are taking away from other people who might occupy those chairs.

But this administration categorically does not believe that. It has been looking for the past several years to find ways to restrict legal immigration across the board, both temporary visas and permanent in terms of the green cards. And the crisis—the COVID crisis has really given the administration the opportunity it wanted. But I think it’s pretty clear that it will not achieve what the administration hopes it will achieve in terms of preserving jobs for Americans and will harm an economy that is already in deep trouble right now. I mean, we’re already facing a long, slow recovery, I’m afraid.

STARR: Right. The J-1, I know you kind of looked a lot at that visa and the impact it has for U.S. universities. We know a lot of universities that are going to be in a lot of trouble given the virus and enrollment rates. And it struck me—I was, honestly—maybe I shouldn’t have been—I was sort of surprised—(laughs)—to see that on the list. I mean, I don’t want to overstate it, but what kind of impact do you think it’s going to have?

ALDEN: Well, I mean, Kathleen can elaborate on this a little more. I think the J-1 is more for kind of, you know, visiting professors and other things, and I think there may be even be some exceptions there. She can go into the details. What was not included on this list, fortunately, was the F-1 visas for international students. And again, that pipeline I talked about—the foreign students coming to the United States—that’s sort of the first step on that pipeline. So the F visas are not directly affected.

However, we’re already—I mean, what we’ve been seeing for the past several years—sorry, I’m going to back up one more step. If you look at foreign students coming to the United States—going, you know, as far back as we’ve got data to the—you know, into the ’80s and ’70s—it’s been this steady upward trend. Year after year after year, we have more foreign students coming to the United States. There was a little bit of a blip after 9/11 that I wrote about in my book, but then it recovered. Well, since 2015 we have seen a small but steady decline in the number of new foreign students coming to the United States. It’s down about 10 percent since 2015. By comparison, those numbers are up 50 percent in Australia and Canada. So it’s not that foreign students aren’t going abroad; they’re just coming less to the United States. So I think we’ve already seen the effect of previous restrictions discouraging students coming from (sic) the United States. Maybe some of that also has do to with the cost of higher education here. But the numbers have been dropping.

This fall—and I think this is just an effect of the—of the pandemic and the situation of higher education. I’m teaching now, and we’re going to be mostly online in the fall, and so the calculations for students are really different. But the universities are anticipating probably a 25 percent decline in foreign students.

The other challenge on the visa front is going to be—and Kathleen can maybe talk about this a little more—I mean, U.S. Citizenship and Immigration Services depends on fees to operate.

WALKER: Right.

ALDEN: Their fee revenue is way down, and USCIS is about to furlough about two-thirds of its staff. So the processing of student visas, which are particularly important in terms of timeliness—you’ve got to have that visa adjudicated and processed before your academic year starts—I’m expecting real problems this fall with people who thought they were going to be able to come and study in the United States. They’re going to find out they don’t get their visa in a timely fashion.

STARR: Wow.

WALKER: Yeah, and that’s really because of the suspension of visa processing by the State Department. So you’re issued an I-20 from the school as a form, and then what happens is you then take that and your documents and you go apply for a visa. Well, how the heck are you going to do that? The State Department yesterday, in its FAQs that it issued concerning this lovely proclamation, indicated that they are going to think about the problem they’ve got with the ability of students to get in. Now, does that mean they’re going to get staffing? The furlough of the USCIS officers is going to kill us concerning the ability of people to change status when they have to because right now our processing times are—take several months. They just restored premium processing in some categories.

But this is the way to strangulate and to end legal immigration without changing the law. You take away staff. You take away by just these proclamations the ability to do your normal day-to-day tasks. And that’s pretty easy to stop immigration without having to lift a pen to change the law, or to go through the Administrative Procedures Act to change a regulation. And that’s what’s happening. We’re getting changes by fiat, not by the normal process through the Administrative Procedures Act to get new regulations, et cetera. And things happen overnight, like this week on this particular proclamation. I don’t see how that makes us competitive. That makes us sort of like number-one-ranked on the ability to be unpredictable for an employer or a business.

ALDEN: Yeah. And I—and just, you know, to reinforce Kathleen’s point, I think it’s impossible to overstate how contrary this is to the way the United States normally operates, right? You know, we, you know, have a long history of either making these changes through legal changes, through acts of Congress, or through a transparent regulatory process that allows for notice and comment from all the parties that might be affected. But the administration is seizing on the economic situation as a crisis that, you know, it believes empowers it to do these things, and the courts have been fairly deferential. I mean, we can talk about other court cases on this, but the courts have been pretty deferential. They’ve said, you know, at the end of the day, the administration has a lot of authority in terms of who is admitted to the United States. But that doesn’t take away from the fact that it’s a blatant abuse of the way U.S. governments have historically operated in this area.

I mean, getting back to the business connections, one of the things that has made the United States a very attractive place for both domestic companies and foreign companies is that our legal, administrative, and regulatory processes have been quite transparent and predictable. You can’t say that anymore. They’ve become nontransparent and unpredictable. And that’s a tremendous challenge for business. I mean, you talk to company executives and they will tell you, I—you know, I see this a lot in the trade space, which I work on as well—that they can adapt to almost anything if they know what the rules are and they have time to adjust, but these actions that come down in unpredictable ways, very, very difficult for companies to respond to this and adapt effectively.

STARR: Your comment about the judiciary and the role it plays, I think we have a little bit of time before I open it up to questions, and that seems a good segue to the DACA decision that came down. So DACA—you know, which—is popularly—(laughs)—referred to as DACA—Deferred Action for Early Childhood Arrivals—the Supreme Court ruled that the way the administration had attempted to do away with the program did not pass muster. So some seven hundred thousand immigrants who came to the United States when they were underage will be able to renew their status in two-year increments. Even though, you know, I guess there’s the question—there are apparently sixty-six thousand of these kids who were not able to apply when the administration—when this process worked its way through the courts. Can you talk a little bit about the impact of that ruling and, you know, again, American competitiveness, how we treat this cohort of people, like, the broader ramifications that has?

WALKER: Do you want me to take a stab at that, Alexandra?

STARR: Please do.

WALKER: OK. So, just briefly, so the good side is that it creates this alleged open door to be able to renew for those who already had DACA authorization, and it also is sort of transporting us back in time to 2012 when DACA took place so that we believe certain people that did not apply may still be able to as initial applicants. Now, we don’t have that guidance yet. And what we have, unfortunately, is a quick statement from the administration that they plan to end—find a way to end DACA by year end. And I thought—and I’d love to hear what you and Ted think about it—on June 19, when U.S. Citizenship and Immigration Services, an agency under the Department of Homeland Security, posted a press release regarding the DACA decisions of the Supreme Court. And USCIS stated: The decision has no basis in law and merely delays the president’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty—they use that word which is not—(laughs)—not applicable, but anyway—the amnesty program.

So I found that just astounding, to have the agency make that statement. And if I’m sitting here trying to advise people what to do, I know that in December of 2019 that I started reopening administratively closed deportation cases for DACA recipients and scheduling them for removal. I know that in April of 2020 there was a Freedom of Information Act response received by this entity ProPublica, however you pronounce it, indicating that ICE had very broad access to the DACA applications and the information about where people are, et cetera. And you worry about that from an enforcement perspective.

The 2012 guidance for people applying for DACA says I’m supposed to be protected. The information I provide is supposed to be protected and not utilized in an enforcement context, except in more extreme circumstances where there’s enforcement issues related to the individual that have basis and effect. So while we have an open door, I think that anybody trying to advise someone is going to have a hard time explaining here are the pros and cons, here’s what I think, you know, you should do. And people should be cautious.

ALDEN: Yeah, let me—let me just add—and I’d just like to reinforce what Kathleen is saying about the enormous personal impacts of all of these decisions. I mean, you put individuals in an almost impossible situation in terms of making life-altering choices. You know, do you apply for DACA now and somehow expose yourself to the possibility of deportation? But, again, just to back up and to put into context how far we have moved as a country, I mean, I was following the immigration reform debates very closely under George W. Bush and then under President Obama. There was a widespread consensus in the Congress across both parties that legal status for young people who were brought here by their parents, right, they had no moral agency in the decision to come here illegally, that that was something of a no-brainer.

I mean, the DREAM Act if it could have stood as a stand-alone piece of legislation—and it got caught up in all the complexities of trying to fix the whole immigration system, and there was a lot of it that needed fixing, but it would have passed quite easily on its own, I think, anytime during the 2000s and even perhaps into the early part of this decade, the 2010s. But now you’ve got an administration which—and, again, remember, the president for some time after his campaign indicated this wasn’t a step he wanted to take, is now determined to double down, even after the court’s ruling, and try to find some legal way to shove this through.

You know, we know, again, a lot of these DACA-eligible young people are working in the health industry in one way or another. You know, they’ve been doctors on the frontline of the COVID crisis. You know, they’re Americans on everything but paper. They don’t know their home countries for the most part. It’s just—it’s morally quite outrageous, and yet we find ourselves, as a country, in that position. And you know, we can debate the particulars of the Supreme Court decision. It was a pretty narrow, I think, regulatory action. Kathleen can elaborate on that.

But, you know, the fundamental issue is: Why would we want to deport these people? On what grounds? A terrible thing for our economy, a terrible thing for our moral standing in the world, a terrible thing for them as individuals. It’s just a morally indefensible action. And the fact that it’s still on the table here in 2020 is pretty shocking.

STARR: And on that sobering note, I’m going to—(laughter)—

WALKER: We’re really happy now. (Laughter.)

STARR: I’m going to open up for questions.

STAFF: (Gives queuing instructions.)

We’ll take the first question from Eric Pelofsky.

Q: Thank you very much for doing this. I guess I had a couple of sort of quick questions. On the L-1s that are already existing in this country, are they allowed to come and go or does their departure from the U.S., even for a vacation, put it into jeopardy? Two—these two questions are sort of inspired by what you were commenting on—given that a lot of foreign students pay full freight, does this put a lot of our universities and colleges into more economic stress than they’re already going to be? And three, you mentioned about the fiancés not being able to get interviews. I guess I wonder what is the explanation for delaying those kind of visas? Inasmuch as—I guess I would assume that the folks at the White House are not expecting those people to find a more appropriate American to marry. Thank you.

WALKER: If you don’t mind I’ll take the first one. On the L, so what we know at the moment is I’m within the United States on June 24, I have a valid L visa. I travel outside the United States. And I return, I’m eligible to be admitted because I’ve got a valid L visa and I’m not subject to the proclamation. Here’s the tricky part: What if I’m in the United States with a valid L visa on June 24. My visa then expires, and I depart the United States and I have to get a new visa. Am I going to be able to get a new L if I’m qualified for it? We believe the answer to that one is yes.

But get this. State Department yesterday issued an FAQ with an example of somebody outside of the United States—let’s slow down—with an L on June 24, and they come into the United States, the visa expires. Are they going to be able to leave and be renewed? And right now the answer seems to be no. So we’re really going to have to hang on and just be very cautious before you engage in international travel till we get some better information.

On the second part, that’s really more Ted with the issue of students and the logistics and logic, if there any, in this decision, and the impact on universities, which you’ve already said Ted is negative and I don’t think this is going to improve it.

ALDEN: Yeah, I mean, you know, there’s very clearly going to be a significant financial hit for the universities. The fact that foreign students pay, you know, for instance at public universities, much higher tuition rates than the in-state tuition that is paid by American students is an important source of financing for many public universities across the country. And we are—you know, we are going into this fall looking at the biggest financial crisis that the universities have ever faced. I mean, we focus on the public universities because they are—you know, some of the private universities have big endowments, and they can probably ride this out.

But you know, as a result of rising unemployment, falling tax revenues, most states are looking at having to cut their budgets for higher education anywhere between about 15 and 25 percent, which is an enormous cut when you consider most of that is going to salaries at one level or another. I mean, my own institution out here in western Washington, basically all non-tenure track faculty are not going to be rehired for the fall. Course offerings are going to be down dramatically to try to meet the budget targets. States are required to balance their budgets. They don’t have the flexibility that the federal government has to run an ever-expanding deficit.

There’ll be a debate this summer. The Democrats in the House have passed legislation and want to push assistance to the states—so direct contributions going to the states to help them meet their budget shortfalls. That would reduce the impact somewhat. But the Republicans in the House have said they don’t support that. The president has suggested he doesn’t support it. So the universities were looking at a critical budget situation with or without the restrictions on foreign students. You put that on top, and you’re really—you know, you’re facing the worst budget situation that the public universities in this country have faced in many, many decades.

WALKER: The last part of your question related to K-1, those are fiancés. And your question about whether or not they should be getting a better U.S. citizen potential spouse. (Laughs.) So I don’t know about that one. But as far as, you know, is the—is the K-1, fiancé, a threat to the U.S. economy? And I just can’t see that. I mean, the K-1 numbers alone to me are not a threat to the U.S. economy. But of course, the argument was made that immigrants—people applying for permanent residence, eventually they get the green card—are somehow all a threat. And I just don’t think that we can use such broad brushes to come up with a correct analysis of what the economic impact is, and that’s shortsighted in my opinion, to our detriment.

Q: Yeah. Just to—just to be clear, I wasn’t actually suggesting that. I was merely trying to say that I don’t understand—

WALKER: I understand.

Q: —what the intellectual argument would be that—

WALKER: Yeah. We’re not talking—in my opinion—I don’t know the argument, either, and if you can come up with them please, please tell me.

Q: OK. Thank you. Thanks for the answers.

STARR: And thank you for an excellent question—excellent questions, I should say.

So I want to expand the discussion a little bit because this isn’t the only movement we’ve seen on immigration policy recently. I assume you handle asylum cases as well, Kathleen.

WALKER: Not many. I have other—other people do many more than I do, but I can at least be at least—I can give you some information. People are way, way more experienced than I am in this area.

STARR: So, you know, we’ve seen recently that the number of asylum seekers the United States has taken has fallen to I think around eighteen thousand, certainly less than twenty thousand a year. And Joe Biden has, in his—that speech he gave last week, said that he would raise the number to about a hundred twenty-five thousand. I know that probably for the—you know, our audience today this doesn’t impact their businesses as much—

WALKER: Right.

STARR: —but, you know, what kind of signal do you think it sends when the United States has taken a position like this on people seeking asylum and refugees who want to make lives here?

ALDEN: Do you want me to start with this one, Kathleen?

WALKER: Let me just give you two sentences and I’ll turn it over to you, Ted.

I mean, to me, what it means is that we are off course regarding where we stand as a nation from a compassion perspective and historically why we created asylum policy and refugee policy. And it’s to our collective detriment and, in my opinion, embarrassment. And I’ll go ahead and say that. The number of individuals who seek this benefit is proportionately very small to our economy, and I think that it’s a statement about where we place our importance regarding our values by having an asylum policy that is welcoming. And I do not want to put a shroud over the Statue of Liberty. How’s that?

ALDEN: So there are two different pieces of this, just to be clear on. So the numbers, Alexandra, that you were referring to have to do with refugee admissions to the United States. And these are people who are abroad, outside the United States, usually in neighboring countries. There’s a whole formal process that operates through the United Nations High Commissioner for Refugees that involves the U.S. State Department for vetting these people and finding homes for them in countries that are willing to admit them. The United States historically has been quite generous in admitting refugees from around the world, I mean, most famously in the aftermath of the war in Southeast Asia but at many other times. And so the Trump administration’s progressive lowering of the refugee cap to an unprecedented low of eighteen thousand, again, is completely out of character with every other administration of both parties for decades. The actual refugee admissions, I think, are going to be far smaller than that, and some of it is the disruption from COVID.

The other piece of this that hits the news a lot more often is people arriving at the southern border. If you arrive at the borders of the United States and say, look, I’m facing the same dangers that refugee applicants are claiming—you know, I fear going back, being tortured, being persecuted for my political opinions, it’s not safe for me to go back home—then there’s a process for adjudicating that when you arrive at the border. It would be a longer conversation than we can have here, but the—but the process has not worked well for some number of years. There’s a long backlog in the immigration courts that are adjudicating these cases. And the Trump administration has—and this goes back to the Obama administration, to be fair—concerned about people arriving, then being able to stay in the United States while their cases are being heard often, you know, two, three, four years.

So the administration moved initially to persuade the Mexican government to hold these people on the Mexican side of the border while their cases are being adjudicated. That went into effect some months ago. And now, with the COVID crisis, the administration has said we’re not going to process any asylum applications at all, and so they’ve shut down the southern border for asylum applications. So, much as we are closing to all forms of immigration, we are basically closed to refugee and asylum seekers.

And again, that’s just such a dramatic move from where the United States has been historically, which is seeing itself as a champion in providing a safe haven for people who are fleeing persecution. It was a big part of our message to the world during the Cold War. So the fact that we have moved so far from that is quite disturbing.

STARR: So is there another question in the queue?

STAFF: Yes. We’ll take the next question from Wasaf Chadhawi (ph).

Q: Hi, guys. Thanks for putting together such a useful forum today for all of us with different sets of questions.

Just to—not to kind of take the same thread, but maybe for a different group of people, do you foresee any legal options that U.S. LPRs who are applying for their spouses’ green cards, for example, via consular processing and they’re awaiting interviews, that they can seek? Given that this law does not seem to be ending anytime soon and there’s a potential of it being even expanded further, are there any legal options they can seek on humanitarian grounds?

STARR: That seems like a question for Kathleen.

WALKER: (Laughs.) Yeah. I mean as far as what we’re talking about on—let’s go back to the April proclamation, is what you’re talking about when you mention immigrant visas. And so we know that they have an exception for spouses of U.S. citizens, but we don’t have that same exception for legal permanent residents. So you’re left with—I mean, you’re left with the concern about whether or not I can go ahead and try to get a national-interest exception depending upon what the person might be doing. Might have—a medical spouse, for example, would be an example where we may be able to get an appointment. But other than that, I mean, we have—the American Immigration Lawyers Association right now, among others, is considering a lawsuit concerning this current proclamation, and we’ll see how that progresses and if anybody might benefit from it. But that’s only in a very nascent stage.

So I wish I had a great answer of, yes, there’s a secret exception or clue that you can follow. And right now, no, we don’t have it.

STARR: So I’m going to ask you guys to look forward—(laughs)—because I think we need some positive things to talk about, or potentially positive things. Obviously, we do not know what’s going to happen in November, but I have heard amongst people that, you know, if there were to be a President Biden and if the Democrats were to take the Senate, that, quote, I’ve heard—I’m going to quote here—“Democrats have learned their lesson” and that they would prioritize immigration reform. Now—(laughs)—Kathleen has probably heard this too many times. But do you think that there might be a moment arriving where we might see changes? And what kind of changes would you like to see? Now, I know we’re—we don’t have a tremendous amount of time, and I’m sure the list is long, and I know you and Ted served on a task force—you guys did a phenomenal job, and I hope that blueprint is pulled off the shelf again. But what are your thoughts on that?

ALDEN: Do you want me to—

WALKER: We didn’t manage to get there in the Obama administration, Ted. Why would that—why would that change? I mean, unless there’s serious control that shifts, both in the House and the Senate. What—

ALDEN: I mean, I think—yeah, clearly there would have to be a serious shift in control. But I do think if we have, you know, a strong Democratic showing—if they take the Senate and the—and the White House—I think the debate will be very different. So, again, to contrast what we were dealing with when we were on the task force, Kathleen, I mean, you had, I think, by and large, both Republicans and Democrats pretty sympathetic to the idea of comprehensive immigration reform, and Republicans very concerned about the enforcement piece. You know, the huge increase in the number of unauthorized migrants through the ’90s and early parts of the 2000s, concerned about border security in the wake of 9/11.

And so the magic formula there seemed to be some blending of immigration enforcement at the borders, at the workplace, monitoring overstays, all those issues, plus the positive reforms in terms of changing some of the categories, opening up U.S. immigration, providing a path to citizenship for unauthorized immigrants.

I don’t think that’s going to be where this debate starts if the Democrats take the White House. I suspect it’s going to be much more can we move on a series of discrete pieces. No more effort to create a grand bipartisan compromise.

The Republican Party is not the same Republican Party. It has no interest in a grand bipartisan compromise on this issue. So the question would be what are the pieces where the Democrats can muster a majority, maybe if they need to in the Senate get a few Republican votes to push these things forward.

I mean, I do think action by Congress is absolutely critical. I mean, to take this back a bit to where we started, which is the uncertainty this causes for business in the United States, the uncertainty this causes for people thinking about coming and making their careers here, if all we were to get in a hypothetical Biden administration was a series of administrative actions that undid many of, you know, what was—many of the things that were done during the Trump administration, that wouldn’t provide any more security than the current situation we’ve got because then, presumably, a new administration could undo those with the stroke of a pen again.

So we are desperately in need of congressional reform to the laws, both because they’re terribly out of date and ill-suited in many respects, but also just to offer some kind of certainty, going forward, on what the rules are going to be here in the United States, which, as you can tell from Kathleen’s various examples, immigrants have no idea. Very, very hard to know how you can get on the right side of the law anymore, and that’s a terrible situation to be in.

STAFF: We’ll take the next question from Jim Dingeman.

Q: Yeah. Thank you.

You know, I’m looking at the polls of Republican voters in various border states and they, historically, have been overwhelmingly against undocumented immigrants. And we have an unprecedented situation we’re going through right now with, first, the COVID crisis, then, literally, tens of millions of people out of work, and then the reaction to George Floyd.

And I’m wondering what the panel thinks about this bouillabaisse, which is so unpredictable, so—who knows what’s going to happen next—tomorrow, a week from now—that can change things, and what I find interesting is the juxtaposition of opinion about favorability to immigration with Black Lives Matter. You see the Pew polls. It shows that.

So I’m wondering what you guys think about what is happening right now and what could happen in terms of changing perhaps those hard-headed people in the Trump coalition that have very tangible interests because they feel these undocumented people are threats to the precariousness they have in terms of jobs.

WALKER: I’d like to just—you know, just a brief retort on that. When you think about what did not get included right now as far as these categories that are restricted for entry—nonimmigrant categories—the H-2A, the agricultural workers, are not included in this ban, and you know that the H-2B category is utilized by President Trump, among others, to help out in providing essential workers.

To me, when we talk to the ranchers—for example, the dairy people, people in agriculture—and then we’re talking about IT, legitimately, that they cannot find someone with a particular expertise—and Ted already mentioned in his conversation with us today as well as in the article he wrote about the importance of artificial intelligence and how that’s been a focal point in China—if we’re really trying to be competitive and provide jobs, the statistics regarding immigration support the fact that immigrants create jobs. That’s a hard thing for people to get their head around right now.

But we’re cutting off—what is that expression? Cutting off your leg or other body part to spite your face because you’re not considering the whole situation and how the country has benefited by immigrants. What’s going to work in my state, in Texas? We have a lot of people that are very pro-immigrant but, still, we’re in a horrible economy right now.

So my pitch is job resources coming from immigrants and trying to document that. Whether or not that logic works is a different issue on some people. But that’s all I can do as an attorney and trying to provide information for people to digest.

Ted, you are way more the policy person than I am. So I’d love to hear what you say on this.

ALDEN: I mean, you know, I think those are all excellent comments. I mean, if I go back to our task force report, you know, we argued at the time that, you know, a proper immigration system would have some flexibility to adjust according to economic conditions, right.

I mean, when—you know, when you have very high rates of joblessness in the United States is not a time when you want to be expanding immigration dramatically. You don’t want to be cutting it off entirely either for all the reasons we’ve talked about here today. But if you had a flexible system, you would probably try to turn the tap off a little bit when unemployment was high here and turn it back on more when unemployment was lower.

A lot of countries do that. We don’t have that flexibility here because the laws are—or the numbers are actually written by Congress, and Congress has been unable to change. The question about, you know, unauthorized migrants, it’s been front and center now in the debate in this country for twenty-five years. I think if you look at the numbers it’s far more under control than it has ever been before.

I mean, even as joblessness came down following the Great Recession to historically low levels, the number of people crossing illegally did not increase in significant ways as you would have expected. Most of the people arriving at the border now are asylum seekers. It’s different grounds. They’re saying they’re fleeing persecution. Clearly, there are economic migrants among them.

But I think the illegal migration piece is far more under control than it’s ever been before. That southern border is more secure than it’s been in any of our lifetimes. There is still room, I think, for much better enforcement at the workplace. We still don’t have a really adequate and workable workplace enforcement system.

But it seems to me we’ve moved a long way from some of those practical conversations about how to find the right balance between a general openness to immigrants, a(n) awareness of how much they have brought to this country and making sure we have a reasonable rule of law. I would like to get back to that conversation rather than the sort of absurd claims we have from this administration that cutting off legal immigration is somehow going to help workers in the United States. We know pretty clearly from the evidence that that’s just not true.

STARR: So I think we’re at the end of our time. I want to thank our terrific panelists, Kathleen and Ted, for joining us today and for all of you—(laughter)—out there on Zoom. And I believe that this is recorded, right. So people can access it later.

But, again, thank you for joining us, an uncertain time, and thanks for terrific panelists.

ALDEN: Thanks very much, Alexandra. Great to be with you, Kathleen.

WALKER: Thanks, Alexandra. Thank you.

ALDEN: Thank you.

WALKER: Take care.

 

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