United States: Employment-Based Immigration For The Second Half Of 2023: Why Major Legislative Changes Are Not Likely

There have been a number of pieces of legislation introduced in the US House of Representatives and US Senate this year. None are the sort of comprehensive immigration reform measures that have been introduced in the past. That is not to say, though, that several of the bills are not far reaching in scope. In March, Senate Judiciary Committee Chairman Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) reintroduced their H-1B and L-A Visa Reform Act that among other provisions would impose new wage, recruitment and attestation requirements on employers of H-1B and L-1 workers.¹The following month, Representatives Andy Biggs (R-AZ) and Tom McClintock (R-CA) introduced the Stopping Border Surges Act that in addition to increasing border security measures, the bill would "take aim at employers that hire undocumented immigrants, including by ramping up the requirements for them to electronically verify that their employees have permission to work in the U.S."² In early May, Rep Linda T. Sánchez (D-CA) introduced the U.S. Citizenship Act of 2023. And in late May, Reps. María Elvira Salazar (R-FL) and Veronica Escobar (D-TX) introduced an updated version of the Dignity Act (H.R. 3599)that is probably the broadest of the bills we've seen this year including provisions focused on border security, undocumented aliens, asylum and employment-based immigration.

Whatever the merit of these bills, there is no chance of any of them, or any other major immigration legislation, becoming law. While there have been attempts to pass comprehensive immigration reform and some bills have even passed a chamber of Congress, none of these efforts have been successfully passed and signed into law since the late 1990s when the last major bill – the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 – went into effect in 1997.³ The closest Congress has come since then in 2013 when the Senate overwhelmingly passed the so-called Gang of Eight's bill with bipartisan support only to see it die in the House.⁴ More targeted measures such as the American Competitiveness and Workforce Improvement Act (ACWIA) and others have been enacted since the late 1990's, but those have become far more difficult to move over the years as the politics have become more tribal and perception of the situation at the border has worsened since then.

In my view, the fact that the US is heading into another presidential election cycle will just make the possibility of passing any meaningful immigration legislation, let alone a comprehensive reform bill, just that much more difficult. Immigration has become a "third rail" in American politics and some of the candidates running for office will certainly make the issue a significant party of their messaging. In other words, do not expect to see passage and enactment of any major immigration legislation during this Congress, and certainly not any legislative changes affecting employment-based changes. I believe that there are three reasons for this:

The Border: While the end of Title 42 did not bring on the influx of migrants that many feared, issues surrounding refugees and asylees will continue to dominate the politics of immigration. Moreover, the "border crisis" has created a public perception that affects how other aspects of immigration – is perceived. Certain politicians claim that migrants pose a danger to the country and its citizens. The focus on the border provides politicians the opportunity to ignore significant issues facing the country's legal immigration system and the fact that many US companies still suffer from a worker shortage. Title 42, for example, provided for the expulsion of migrants who had been in a country where COVID and other communicable diseases were present. The result: "by the end of [2021], there were close to 2 million fewer working-age immigrants in the United States than there would have been if pre-pandemic immigration continued unchanged."⁵ As long as the border dominates the political discussion around immigration, efforts to improve employment-based immigration will continue to be a lesser priority.

Divided Congress: Immigration is among the most complex and difficult issues for Congress. Agreements within and between Democrats and Republicans are tied to specific issues and disagreements on other immigration and security issues are prevalent among the same officials. The last election and the members of the House who now lead the relevant committees just make this more difficult as they have histories of opposing progressive changes to employment-based and other immigration programs. Further, the simple fact is that many Republicans and Democrats are focused more on border-related issues and changes on other aspects of immigration are unlikely to advance without progress on that.

The 2024 Election: Immigration will most certainly be a major issue in next year's election, especially with former President Donald Trump seeking re-election. This issue is currently seen as a potential vulnerability for current President Joe Biden. A recent article from Reuters has suggested that public frustration over his handling of immigration, has lowered his overall approval rating to 40%.⁶ Even more to the point, Biden's handling of immigration has received a meagre 26% approval rating according to Reuters. Therefore, the Administration is not setting simplifying or easing employment-based immigration programs as a priority. In March 2023, the administration issued a fact sheet of the immigration-related measures addressed by the administration in its first two years.⁷ Amid such titles as "Enhances Border Security and Immigration Enforcement", "Address the Situation at the Southwest Border", "Supports America's promise to Refugees", and "Bolsters Hemispheric Economic Investment and migration Management Efforts," one searches in vain for any updates on the numerous employment-based immigration initiatives outlined in the U.S. Citizenship Act of January 2021. Further, the Administration's Unified Agenda of Regulatory and Deregulatory Actions which reports on the actions administrative agencies plan to issue in the near and long term notes several regulations that being drafted which could restrict or add significant cost to some employment-based visas and other immigration programs.

To sum up, while it is unlikely that legislative-based reform in employment-based immigration will happen in the remainder of 2023, immigration itself is likely to be a major factor in the run-up to the 2024 election year. Even though the ambitious bills introduced into Congress indicate that (certain) Congresspeople recognize the need for comprehensive reform, it is more likely that employment-based immigration will take a backseat to issues related to the border in the upcoming election year.

Footnotes

1. "Durbin Grassley Introduce Bipartisan H-1B, L-1A Visa Reform Legislation to Protect Workers and Stop Outsourcing of American Jobs." U.S. Senate Committee on the Judiciary, March 27, 2023: https://www.judiciary.senate.gov/press/dem/releases/durbin-grassley-introduce-bipartisan-h-1b-l-1-visa-reform-legislation-to-protect-workers-and-stop-outsourcing-of-american-jobs

2. Suzanne Monyak. "House Republicans Release Sweeping Immigration Bill." Roll Call, April 17, 2023: https://rollcall.com/2023/04/17/house-republicans-release-sweeping-immigration-bill/

3. https://en.wikipedia.org/wiki/Illegal_Immigration_Reform_and_Immigrant_Responsibility_Act_of_1996

4. https://en.wikipedia.org/wiki/Gang_of_Eight_(immigration)

5. Vanessa Yurkevich. "America needs immigrants to solve its labor shortage.' CNN.com, December 22, 2022: https://www.cnn.com/2022/12/22/economy/immigration-jobs/index.html

6. Jason Lange. "Biden's approval rating at 40%, Americans concerned about immigration." Reuters, May 10, 2023: https://www.reuters.com/world/us/bidens-approval-rating-40-americans-concerned-about-immigration-reutersipsos-2023-05-09/

7. "FACT SHEET: President Biden's Strengths Border Security, Enhances Legal Pathways and Provides Resources to Enforce Our Immigration Laws." White House, March 9, 2023: https://www.whitehouse.gov/omb/briefing-room/2023/03/09/fact-sheet-president-bidens-budget-strengthens-border-security-enhances-legal-pathways-and-provides-resources-to-enforce-our-immigration-laws/

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