DHS Uses Footnotes, Definitions, and Other Nuances to Expand Migrant Flows

By David North on February 28, 2023

My colleague Elizabeth Jacobs has written about the numerous loopholes in the Biden proposals about the southern border that deliberately weaken our ability to control the illegal traffic there.

Similarly, USCIS has issued a disconnected set of procedural nuances, altered definitions, and even footnotes to prevent or slow the departures of no-longer needed H-1B workers or to otherwise expand migration. Both of these operations, at the border and within USCIS programs, tend to swell the nation’s population and, more important to the nation’s corporations, to loosen labor markets, thus depressing wages for American and foreign workers alike. All would seem to contradict the administration’s posture as a friend of the American worker — if obliquely.

Whereas the Biden administration’s plans for the borderlands get front-page attention, one needs to be a detective (with some help from his friends) to expose the USCIS gambits, five of which are worth mentioning. They are:

  • A footnote expanding the definition of H-1B occupations;
  • A new policy defining where one can file for a renewed H-1B visa;
  • Allowing universities to define STEM occupations;
  • Defining who is, and who is not, 21 years of age, a new wrinkle; and
  • Defining alumni as students, an old, established wrinkle.

I have not seen any writing on the combination of these five activities, but all fit into what appears to be a larger (and largely hidden) administration plan to expand migration whenever possible. Let’s deal with these five sleights-of-hand one at a time; some are better documented than others; some are newer than others; with one exception, Congress had no hand in these maneuvers.

Footnote Expanding the Definition of H-1B Occupations. Perhaps the best hidden of the five maneuvers, and one of the newest, was reported on February 22 by TechGig, an India-based website. It dealt with the one-time requirement of the H-1B program that most of its visas had to go to those with at least a bachelor’s degree, a demand strengthened by the Trump administration. Here’s a quotation from the article:

A USCIS website footnote clarifies that it is not USCIS policy to restrict positions that qualify for H-1B petitions as was proposed by the Trump administration (ruled unlawful).

On the USCIS website, under H-1B Specialty Occupations, the agency recently added a footnote on occupations that “usually” require a bachelor's degree. That footnote reads: “‘Normally,’ ‘common,’ and ‘usually’ are interpreted based on their plain language, dictionary definitions. They are not interpreted to mean ‘always.’”

A lawyer for the Fragomen law firm (here in the U.S.) is quoted as commending the near-secret change; this means, given that firm’s pro-corporate bias, that it is bad news for U.S. workers.

Definition of Where an H-1B Visa Can Be Renewed. For a long, long time an alien wanting to renew her or his H-1B status had to do so in the home country. This was a useful bit of public policy as it decreased the value of the visa to the worker (making the program a little less attractive to her) and gave the alien a chance to think through the question of which country she wanted to live in. DHS has now started a pilot program that would allow H-1Bs and other nonimmigrants to renew their visas in this country.

Allowing Universities to Define STEM Occupations. The broader the definition of STEM occupations, the more aliens can get jobs in the H-1B and OPT programs, with STEM meaning science, technology, engineering and math, and OPT meaning the Optional Practical Training program. While most, maybe 85 to 90 percent of H-1B jobs, are numerically limited, the minority (in universities and non-profits) are not; similarly, there are no limits at all in the OPT program, so a looser definition creates more jobs for aliens — government-subsidized jobs — and fewer jobs for citizens.

Rather than directly — even in a footnote — changing definitions, USCIS has allowed the nation’s universities to decide what is STEM and what is not, as we reported several years ago. The pressure to expand what counts as a STEM degree related to both the accounting profession and to economics.

Defining Who Is, and Who Is Not, 21 Years of Age, a New Wrinkle. Normally, one’s 21st birthday is defined as exactly 21 years after one is born, but not in the current immigration world.

There are numerous would-be immigrants who will be admitted by a change in the law, and in the regulations on this point. In many classes of potential immigrants, the children of the principal immigrants can be admitted on the parent’s or parents’ coattails provided that they have not yet reached their 21st birthday. In some cases, because of delays on the part of the parents or on the part of Homeland Security, a “child” “ages out of eligibility”.

With all that in mind Congress has passed something called the Child Status Protection Act (CSPA), which changes how the 21st birthday is defined, and here it gets complicated. The State Department has (for some obscure reason) two sets of tables for determining when visas become available to applicants, one is the Dates for Filing Chart and the other is the Final Action Date Chart, with the latter producing fewer visas for the 20-somethings than the former. Now the Dates for Filing Chart can be used when it would benefit the “child” in question.

When the would-be immigrant is in a class that has no ceilings, such as immediate relatives of citizens, this will increase immigration; when there are ceilings, it will re-order the flow of migrants without (I think) increasing the total number of admissions.

Defining Alumni as Students. The Bush II administration set in motion the Optional Practical Training program, which was expanded by the Obama administration and preserved by the Trump and Biden administrations. Central to OPT is the definition of alien alumni as "students" again, for one year after graduation for most areas of study, or for the first three years after graduation for those majoring in STEM fields. Since these alien workers are now “students” again their employers are given a pass on the payroll taxes that fund the Social Security, Medicare, and the federal unemployment insurance programs.

So, the government gives an 8 percent tax break to employers who hire OPT workers rather than citizen or green-card workers. Amazing but true, a federal subsidy available only to employers who discriminate against their fellow Americans.

This is probably the second biggest of the foreign worker programs, with perhaps 200,000 subsidized alien participants at all times. Only the H-1B program is larger.

The moral of this story is: Beware of open-borders types carrying dictionaries.

The author is grateful to Matthew Bonness, and other tipsters who have asked to be nameless, for their assistance with this post.