DHS Should Act Like a Judge, Not a Salesman, on Immigration Issues

By David North on February 25, 2022

The Department of Homeland Security should act like a judge on immigration issues, not as a salesman. It should be impartial and handle individual cases within the existing law.

If, in the framework set by Congress, one set of visas is not used much, it should let the cards fall where they may and not (to mix metaphors) tilt the pinball machine.

That fairly obvious piece of advice is frequently ignored by DHS. The most recent case developed last week when it issued a notice encouraging aliens stuck in line for third preference employment-based immigration visas, EB-3s, to apply for EB-1 or EB-2 visas on the grounds that while EB-3s are hard to come by, the more rarified EB-1 and EB-2s categories have, generally, no backlogs.

It is a little like an employer telling a job applicant “feel free to exaggerate your skills on your resume.” DHS is, in effect, encouraging the more or less average applicant, who is appropriately in EB-3, to seek admission as a truly skilled, or even extraordinary worker, in classes EB-1 and EB-2. That’s not what Congress had in mind when it established numerical limits on various classes of migrants.

The numerical limits were designed to weigh various family relationships and levels of employment skills so that some sort of rough equity among them could be obtained; in the EB categories, Congress decided that it wanted to obtain a certain mix of skill levels, leaving the admission of unskilled people to the much larger family categories. DHS has now decided to blur those priorities.

While it should be permissible to seek a lower EB class, i.e., a higher rating, if your skills have changed over the years, such as securing a PhD, the thrust of the latest policy advice seems to be: let’s get as many immigrants as possible. All of this is pretty much hiding in the bureaucratic language used:

USCIS Guidance on Requests for ‘Transfer of Underlying Basis’ Between Employment-Based Categories

U.S. Citizenship and Immigration Services (USCIS) is encouraging eligible applicants to consider requesting to transfer the underlying basis of their adjustment of status application to the first or second employment-based preference categories, because there is an exceptionally high number of employment-based immigrant visas available in these categories during this fiscal year (Oct. 2021 through Sept. 2022).

The overall employment-based annual limit for fiscal year 2022 is approximately twice as high as usual, because that limit includes all unused family-sponsored visa numbers from fiscal year 2021, which was approximately 140,000.

This is no ringing call to the talented of this world — bring your skills to the promised land and we will give you a green card. It tells aliens already here (i.e., those adjusting status) to gild their resumes so that they can achieve permanent status.

Although the policy advice is regrettable, it is keeping with other migration decisions made by the Biden administration.