America’s Immigration System Comes Down with Covid

Symptoms include more job competition for U.S. workers and increased industrial espionage from China

By George Fishman on September 21, 2022

[Because of covid-related travel restrictions, the number of family-based green cards issued fell over the past couple of years. Any unused family green card slots are added to the employment-based categories for the following year. What were the consequences of that?]

For over three decades, the Immigration and Nationality Act (INA) has generally capped at 140,000 the number of employment-based green cards available each year. (In 1990, Congress increased the cap from 54,000 a year.) As Mark Krikorian, executive director of CIS, has testified before Congress:

“Einstein immigration.” This is what Americans imagine our employment-based immigration categories to be. But like everything else in immigration policy, skills- and employment-based immigration is not what it seems. ... [T]he “highly skilled” workers in question aren’t really that highly skilled, and the “need” for them has little to do with the national interest and much to do with firms seeking cheaper and more compliant workers. In fact, the employment-based immigration category with the highest standards, the category that really does select for the best and brightest around the world, is never fully used, precisely because there are so few people in the world who have such extraordinary abilities. Research shows that, contrary to the claims of tech-industry lobbyists, these workers are not the best and brightest, the cream of the crop, the global elite of talent. ... [T]here’s no reason any employer should be permitted to make an end run around our vast continental labor force ... unless the prospective immigrant in question has unique, remarkable abilities, and would make an enormous contribution to the productive capacity of the nation. ... [We should at the very least] limit skilled immigration to ... “aliens of extraordinary ability” and outstanding professors and researchers. Congress intended this to be the real cream-of-the-crop category. ... [It] accounted for [only 7,078] green cards [in 2020] ([not] including spouses and children). This is the real Einstein immigration, and these are the only foreigners who should be granted permanent residence based on skills or employment.

An addendum to the employment-based green card cap provides for the cap to be increased in any given year by “the difference (if any) between the maximum number of [green cards] which may be issued ... to family-sponsored immigrants ... during the previous fiscal year and the number of [family-sponsored] visas [actually] issued ... during that year.” As my former Department of Homeland Security (DHS) and former Center colleague Robert Law explains:

[I]f fewer than 226,000 [extended] family-based green cards are issued in a fiscal year, the difference is added to the employment-based immigrant total for the next fiscal year. Similarly, if fewer than 140,000 employment-based green cards are issued in a fiscal year, the difference is added to the family-based immigrant total for the next fiscal year.

In most years, the addendum is meaningless, because the maximum number of family-sponsored green cards is almost always issued. However, that was not the case during the first two full years of the Covid pandemic. The American Immigration Council reported that:

The COVID-19 pandemic ... profoundly impacted the ability of foreign nationals to travel to the United States. ... Much of this [was] due to changes to routine operations at U.S. consulates which are intended to reduce the rate of infection and protect U.S. personnel abroad. The Trump administration ... also prevented nationals of specific countries with high rates of COVID-19 infection from traveling to the United States during the pandemic. Further, the Trump administration issued a proclamation ... that suspended the entry of certain immigrants ... [in order] to preserve employment opportunities for U.S. citizens affected by the economic impact associated with the pandemic. The collective impact of the limitations on visa processing and availability sharply curtailed immigration to the [U.S.].

As a result, DHS reports that while in 2019, 709,904 family-sponsored (immediate relatives plus extended family) green cards were issued, the number dropped to 442,708 in 2020 and 451,086 in 2021. Thus, the addendum sprang to life. U.S. Citizenship and Immigration Services (USCIS) announced an increase in the annual cap on employment-based green cards for 2021 to 262,288 and then announced an increase for 2022 to 281,507, stating that “[t]he overall employment-based annual limit for immigrant visas in fiscal year 2022 is approximately twice as high as usual, primarily due to consular closures abroad during the COVID-19 pandemic which led to almost all 140,000 family-sponsored visa numbers going unused during ... 2021.”

Huge Jump in Employment-Based Green Cards

Thus, while in 2020, 148,959 employment-based green cards were issued, the number jumped to 193,338 in 2021. This is quite extraordinary, as in the decade between 2010 and 2019, the number of employment-based green cards issued never fell below 137,855 or rose above 161,110. The cap has surely runneth over. In fact, the cap has runneth over by so much that in a mad dash to hand out all those green cards, USCIS seemed a bit like Lucy Ricardo and Ethel Mertz frantically trying to wrap all the chocolates coming off the conveyer belt at the candy factory. USCIS proudly announced that it “was able to ramp up processing and approve ... employment-based adjustment of status applications [at a rate] of more than 50% above our typical workload ... despite pandemic-related capacity restrictions.”

But Biden’s USCIS bemoaned the fact that “[d]espite [its] best efforts, 66,781 [employment-based immigrant] visas went unused at the end of FY 2021.” USCIS, you have some ‘splainin to do! The agency claimed that:

[T]he key challenges we have faced in processing the extraordinary number of available employment-based immigrant visas include ... USCIS capacity constraints. Due to the COVID-19 pandemic and resource constraints resulting from the prior administration [Never miss an opportunity stick it to the Trump administration, despite this barb making absolutely no sense given that USCIS is funded by user fees!], we face an unprecedented backlog of cases across most forms processed by the agency. All of these forms ... are competing for limited resources and adjudications officers at a time when we need to surge resources to ensure ... use of the unprecedented number of employment-based visas ... and [c]ontinued capacity limitations at [Department of State] DOS consular posts.

But under the INA, these “unused” visas were added to 2022’s family-sponsored green card cap (thus, it is fairer to call them “reused”, or at least “gently used”). In any event, USCIS vowed never again! — “We are dedicated to ensuring we use as many available employment-based visas as possible in FY 2022.” USCIS proudly proclaimed that “[t]hrough July 31, 2022, [DHS and DOS] have combined to use 210,593 employment-based immigrant visas. ... We remain committed to taking every viable policy and procedural action to maximize our use of all available visas by the end of the fiscal year and are well-positioned to use the remaining visas.”

Woohoo! Fabulous! Or is it? First, let’s consider the consequences of this bumper-crop of employment-based green cards for American workers and graduating college students. As my colleague Steven Camarota points out, “immigrants with skill-based visas certainly bring some economic benefits, but one cost is the increased wage and employment competition faced by natives with similar skills”, not a trivial concern when considering “run-of-the-mill college graduates who compete with middle-class natives”.

Second, let’s consider some of the “viable policy and procedural actions” that USCIS plans to use:

Interview Waivers. USCIS will “[c]ontinu[e] to apply risk-based interview waiver determinations for employment-based adjustment of status applications, enabling us to adjudicate most applications without interview”. (Emphasis added.) USCIS regulations require that:

Each applicant for adjustment of status [to lawful permanent residence] ... shall be interviewed by an immigration officer[, which] may be waived in the case of a child under the age of 14; when the applicant is clearly ineligible ... or when it is determined by [DHS] that an interview is unnecessary.

The former Immigration and Naturalization Service (INS) promulgated this regulation to account for “those very limited circumstances when it is determined that an interview is not necessary ... to remove the burden of unproductive interviews ... and to allow [it] to redirect resources to enhance the detection and deterrence of fraud and to reduce the backlog of pending cases.” (Emphasis added.) Unfortunately, it is unlikely that USCIS is jettisoning interviews in order to “enhance the detection and deterrence of fraud”. Robert Law wrote just this February that USCIS “has unveiled a new mission statement that scraps ‘safeguarding [the] integrity’ of adjudicating legal immigration benefits ... as [a] key pillar[] of the agency.” Biden’s USCIS can’t even bear to mention fraud in its mission statement!
The U.S. Government Accountability Office (GAO) explained in a days-old report on problems in USCIS’s Fraud Detection and National Security Directorate (a report that has mysteriously disappeared from GAO’s website — “It may have been relocated, removed or be temporarily unavailable”) that a common type of immigration benefit fraud is:

Employment fraud. Willfully misrepresenting material facts related to employment. Such fraud may be perpetrated by beneficiaries — who may misrepresent their qualifications or submit falsified supporting documents to USCIS — or by petitioning employers, who may create fabricated positions, misrepresent their ability to pay the beneficiary, or create shell organizations for the purpose of perpetrating immigration fraud.

Such fraud is a significant issue. The GAO famously (at least in my mind) stated in 2002 that “[a]lthough the extent of the [immigration] benefit fraud problem is not known, internal and external reports and the views of INS officials indicate that the problem is pervasive and significant” and that “[f]raud unit officials said that it is rampant.” And in 2006, GAO reiterated its concern, finding “that available evidence suggests that [fraud] is an ongoing and serious problem”, noting that “[f]raudulent documents submitted included but were not limited to ... financial statements, business plans, organizational charts, fictitious employee resumes, and college transcripts.”

Priority for Employment-Based Applicants. USCIS is “prioritize[ing] the processing of employment-based adjustment of status applications, including approving overtime, while preserving the integrity of the immigration system and continuing to serve other applicants and petitioners.” Um, based on my experience, this is bureaucratese for “prioritizing the processing of employment-based applications while sacrificing the integrity of the immigration system and ‘disserving’ other applicants and petitioners”.

Live and Work Here Indefinitely. USCIS is “[w]orking collaboratively with DOS to ensure that the dates in the Visa Bulletin have been significantly advanced to allow for the filing and adjudication of sufficient immigrant visa and adjustment of status applications”. What USCIS doesn’t say is that by letting aliens present in the U.S. who are on an immigrant visa waiting list to file applications to adjust status, DHS is in effect allowing the aliens to live and work in the U.S. indefinitely while waiting for a green card to become available. That is why under the INA, “an immigrant visa [must be] immediately available ... at the time [an] application is filed.” Despite this clear statutory mandate, DHS has for years (with the complicity of DOS) been allowing aliens to file adjustment applications when green cards are in no way “immediately available”. Looks like they are doubling down. Sort of undermines Congress’s decision to protect American workers by limiting the number of employment-based green cards available each year, doesn’t it?

Waiving Medical Exams. USCIS is “in collaboration with the Centers for Disease Control and Prevention, temporarily waiving the requirement that the civil surgeon sign Form I-693 no more than 60 days before an applicant files for adjustment of status.” USCIS regulations require that “an applicant for adjustment of status shall be required to have a medical examination by a designated civil surgeon, whose report setting forth the findings of the mental and physical condition of the applicant ... shall be incorporated into the record.” This is done in order to “establish that applicants who are seeking immigration benefits are not inadmissible to the United States on public health grounds.” The results are reported on Form I-693. USCIS seems disinterested in making sure that applicants seeking immigration benefits are not inadmissible on public health grounds.

Relieving Pressure to Raise Wages. USCIS states that “President Biden rescinded the entry ban on immigrant visa applicants abroad, which if left in place would have led to even more unused immigrant visas in FY 2021.” Well, as President Trump explained:

[L]awful permanent residents, once admitted, are granted “open-market” employment authorization ... allowing them immediate eligibility to compete for almost any job, in any sector of the economy. There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply.

Thus, in April 2020, Trump signed a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”. Shortly after taking office, President Biden revoked this proclamation, declaring that it “harms industries in the United States that utilize talent from around the world.” President Trump’s proclamation might have “harmed” industries, if harm means pushing them to improve wages and job opportunities for American workers. But, by the same token, President Biden’s revocation harms American workers by relieving pressure on industries to improve wages and job opportunities for American workers.

Helping the CCP

Third, and finally, the COVID-19 boom in employment-based green cards will inure to the benefit of the People’s Republic of China (PRC) and its extensive industrial espionage efforts in the U.S. As FBI Director Christopher Wray stated in 2019, the PRC “has pioneered a societal approach to stealing innovation [from the U.S.] any way it can, from a wide array of businesses, universities, and organizations.”

Because of the employment-based green cards per-country cap, nationals of the PRC face long waiting lists for most employment-based green cards. The Congressional Research Service (CRS) has estimated that 59,034 nationals of the PRC are on the employment-based green card second preference category (aliens with advanced degrees) waiting list and that the projected wait time for a green card for a newly approved beneficiary is 18 years; by 2030, CRS estimates that the number of PRC nationals on the waiting list will grow to over 173,000 and the projected wait time will grow to 51 years. Similarly, CRS estimated that 19,657 PRC nationals are on the third preference category (generally, aliens with bachelor’s degrees) waiting list and that the projected wait time for a newly approved beneficiary is five years; by 2030, the number on the waiting list will grow to over 64,000 and the projected wait time will grow to 17 years.

Without changes to the law, or aggressive enforcement of existing law, to inhibit industrial espionage by the PRC, the issuance of more green cards to PRC nationals will inevitably result in more of them carrying out industrial espionage at their places of employment in the U.S., as instructed by the Chinese Communist Party. In November 2018, Attorney General Jeff Sessions launched the China Initiative to better counter economic espionage by the PRC. The Biden administration has already shut it down, despite admitting that it “effectively focused attention on the multi-faceted threat from the PRC”.

Is the pandemic over yet?