Closing the Golden Door and Burning Down the House

How the Trump Administration’s Xenophobic Immigration Policies are Dismantling our Immigration System Without a Single Act of Congress

Monday’s presidential proclamation extending and expanding an existing worldwide green card ban to include a ban on entry for potentially hundreds of thousands of temporary, high-skilled, seasonal and other workers is the latest action by the Trump administration to fundamentally dismantle our legal immigration, naturalization, refugee, and asylum systems built by Congress over more than half a century. Since their first week in office, the Trump administration has been laser focused on tearing down immigration programs without a single act of Congress and, as announced in the Trump regulatory agenda, the administration is promising so much more this year. Now, the federal agency responsible for processing immigration requests — U.S. Citizenship and Immigration Services (USCIS) — is on the verge of collapse with two-thirds of its workforce facing potential furlough as a result of Trump’s xenophobic immigration policies.   

Below is a summary of some of the major changes that have severely limited the family- and employment-based immigration system (which is the way 80% of green card holders obtain their status), restricted naturalization, dismantled refugee, asylum and other humanitarian programs, destroyed the Diversity Visa Program, and limited access to U.S. university education by foreign students.      

Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “The modern U.S. immigration, naturalization, refugee, and asylum systems, built by Congress over more than half a century, are being dismantled by the Trump administration. And now with USCIS — the agency responsible for processing immigration requests — facing realistic threats of furloughs for two-thirds of its staff, the damage being done could become permanent, or at least take years to recover from. Every part of our immigraiton system has been touched, and in many cases, almost completely undone. This was already happening before the pandemic, but now the Trump administration is using the pandemic to justify an accelerated destruction of legal immigration, naturalization, refugee, and asylum systems. Unable to get much of  their agenda passed by Congress, even when Republicans controlled both chambers, they are closing the golden door and building a wall around the country, both physical and bureaucratic. With just a few months left before the end of the Trump administration’s first term, they are burning down the house and gutting the infrastructure and agencies that are needed to process immigration requests when and if our immigration system recovers from four years of Trump administration attacks.”

David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said:  “Since Trump took office his administration has engaged in a methodical and ruthless scheme to end legal immigration through legally suspect administrative rule making, agency guidance, restrictive visa adjudications and delay. Trump has made it his mission to all but destroy family unity and employment based immigration. Most recently the Trump administration has cynically exploited the COVID-19 pandemic to deprive American citizens and residents the opportunity to reunite with loved ones and denying American business the ability to compete in a global economy.  Simply put, Trump has built an ugly imposing wall around Ronald Reagan’s ‘shining city upon a hill’ and torched it.” 

Family-Based Immigration  

Current immigration law allows U.S. citizens to petition USCIS to bring their parents, spouses, minor children, adult children, and siblings to permanently reside in the U.S. (albeit with significant backlogs and delays for certain categories). The same is true of lawful permanent residents (“green card” holders), but only with regard to their spouses and minor children. Before the pandemic, President Trump closed down parts of these programs for certain countries, first through the “Muslim Ban,” issued one week into his Presidency and then the “Africa Ban,” issued on January 31, 2020. After the pandemic, President Trump issued a new proclamation on April 22, 2020, this time not limiting it by country, but expanding it across the world. Without any consideration of a safe way to reunite families during a pandemic, the new proclamation bans entry into the United States of any spouse or child of a green card holder and any parent, adult child or sibling of a U.S. citizen from anywhere in the world, with very few exceptions. The ban lasts through December 31 and may be extended, according to the proclamation.  

These proclamations are in addition to a new regulation that, if applied to recent family-based immigrants, could have barred more than half of them from reuniting with family inside the U.S. based upon a wealth, health, and age test. Furthermore, there are other planned regulations listed on the Trump regulatory agenda that will affect the family-based immigration system. In addition, many other policies*** have already been implemented in the last three and half years that, little-by-little, limit family-based immigration:

• 4/17/18:  When USCIS determines that primary evidence is unavailable or unreliable, the agency may require DNA tests as evidence of a full- or half-sibling relationship in any petition or application for an immigration benefit in which a sibling relationship is required to establish eligibility.
• 5/15/18:  USCIS no longer waives interviews for fiancé-based adjustment cases.
• 8/13/18:  USCIS coordinates with ICE to arrest spouses of U.S. citizens at USCIS interviews.
• 10/16/18:  Form I-693 (Report of Medical Examination and Vaccination Record), required for a green card, is now valid only when a civil surgeon signs it no more than 60 days before the date an applicant files the application for the underlying immigration benefit; and USCIS adjudicates the application within 2 years from the date of the civil surgeon’s signature.
• 11/30/18:  USCIS requires more interviews for removal of conditions on lawful permanent residency by presuming interview unless there are specific factors; under previous policy no interviews were presumed unless there were certain fraud or other similar factors present.
• 1/31/20:  USCIS shifts to requiring citizens residing abroad to file Form I-130 (Petition for Alien Relative) online except in very limited circumstances.

Employment-Based Immigration 

Like U.S. citizens trying to reunite with family members in the U.S., U.S. employers, with few exceptions, will not have access to high-skilled immigrants who are abroad through the employment-based green card process under the April 22nd presidential proclamation. To top it off, on June 22, 2020, the President issued a new proclamation that bans the entry of temporary, high-skilled, seasonal and other workers, and intra-company transferees of U.S. and international companies with U.S. offices. Monday’s Proclamation also requires various agencies to issue new legally suspect restrictive regulations and policies on H-1B visas, employment-based green card programs, and various work permits. These actions come on top of multiple other actions*** already taken to limit high-skilled, temporary foreign workers in the U.S. over the last three and half years that have resulted in a much higher petition denial rate and much greater scrutiny, in addition to more regulations announced in the upcoming Trump regulatory agenda:

• 3/13/17: USCIS restricts H-1B eligibility for computer programmers.
• 4/3/17: USCIS increases “targeting” of site visits to detect H-1B fraud.
• 4/3/17: USCIS creates an email address for reporting H-1B fraud.
• 8/9/17: USCIS redefines “affiliate” and “subsidiary” for ACWIA Fee so that more have to pay much higher fees for H-1Bs.
• 10/12/17: USCIS begins requiring I-129 applicants to file their petitions in the location of the company’s primary office in an effort to prevent forum shopping in adjudications by USCIS processing centers that appear more favorable.
• 10/23/17: USCIS instructs its adjudicators not to give deference to its previous eligibility determinations. 
• 11/8/17: USCIS adopts more restrictive test for identifying “function managers”in effort to limit ability of multinational corporations to transfer corporate managers to the U.S.
• 11/20/17: USCIS narrows the definition of TN economist.
• 12/29/17: USCIS tightens requirements for establishing a qualifying relationship of affiliated multinational businesses in effort to restrict transfer of multinational executives, managers and specialized knowledge personnel to the U.S.
• 1/24/18: USCIS prohibits OPT work at third-party locations.
• 2/15/18: USCIS restricts employers’ outside counsel from signing H-1B applications.
• 2/22/18: USCIS requires complete itineraries for H-1Bs at third-party worksites.
• 3/19/18: USCIS restricts one-of-three-year work requirement in the U.S. in multinational EB-1 cases.
• 3/20/18: Premium processing suspended for six months.
• 3/23/18: USCIS makes it clear that multiple H-1B filings by “related entities” for the same beneficiary is prohibited.
• 5/15/18: USCIS no longer waives interviews for employment-based adjustment cases, slowing down the green card process.
• 8/26/18: Premium processing suspension extended and expanded.
• 8/31/18: Premium processing fee increased from $1225 to $1410.
• 9/14/18: Increased O visa scrutiny by allowing labor unions to submit negative consultation letters directly to the agency regarding an individual’s eligibility for an O visa.
• 11/15/18: USCIS clarifies L-1 one-of-three-year rule that will delay L-1 eligibility.
• 1/31/19: USCIS changes sequence of H-1B visa cap-subject lotteries to maximize selection of advanced-degree holders.
• 4/25/19: CBP further restricts Canadian L-1 applications at the border.
• 6/4/19: USCIS begins rejecting H-1B petitions without petitioner’s or applicant’s name and primary U.S. office address.
• 10/31/19: Premium processing fee increased from $1410 to $1440.
• 3/20/20: Premium processing suspended.

Naturalization

The Trump administration has also made multiple changes*** to naturalization requirements that restrict naturalization eligibility, even for those serving our nation in the military:

• 7/26/17: USCIS expands fingerprinting requirements to applicants over age 75.  
• 10/13/17: DOD restricts naturalization requirements for those serving in the military.
• 4/18/18: USCIS updates policy to implement Sessions v. Morales Santana, choosing a more restrictive policy than necessary to clarify that the same physical presence requirement applies to a child born out of wedlock outside of the U.S. to a U.S. citizen parent regardless of the gender of the U.S. citizen parent (applying the higher standard applicable to fathers).
• 6/11/18: USCIS launches a large-scale denaturalization operation.
• 10/12/18: USCIS clarifies that applicant spouse and his or her U.S. citizen spouse must have been living in marital union for at least three years immediately preceding the date of filing for naturalization and that termination of the marriage at any time before the applicant takes the naturalization oath makes the applicant ineligible under INA § 319(a).
• 11/15/18: USCIS begins requiring biometric information for Form N-565 applicants seeking naturalization/citizenship replacement documents.
• 12/12/18: USCIS tightens procedures for approving Form N-648, the Medical Certification for Disability Exceptions to the civics and English requirements for naturalization.
• 4/19/19: USCIS clarifies that marijuana offenses remain a conditional bar to establishing good moral character for naturalization applications.
• 12/10/19: USCIS implements Attorney General’s decisions tightening naturalization requirements.
• 12/13/19: USCIS tightens and clarifies good moral character definition.
• 2/26/20: USCIS now requires applicants for naturalization that are absent from U.S. for more than 6 months to overcome presumption that continuous presence has been broken, instead of one year.

Humanitarian – Asylum, Refugee, and Other Humanitarian Pathways to the United States

Asylum:  Under the law created by Congress decades ago, people fleeing persecution and arriving at our borders have had a right to apply for asylum in the United States. Attacks on this asylum system came early and often and continue under the Trump administration. In total, the Trump administration has issued more than 30 policies or taken other actions affecting asylum, as compiled by the National Immigration Law Center. The result — just two people were granted asylum in an almost two month period earlier this spring, in comparison to the 25,000 average number of grants of asylum in previous years. The following Trump policies are the key culprits:

• January 2017: Executive order sets blueprint for ending asylum and orders agencies to issue regulations and policies on asylum.
• February 2017: USCIS raises standard to be approved in first step of asylum process – credible fear determination.
• July 2017: End of Family Case Management Program (FCMP) which allowed asylum-seeking families to be released from detention while their asylum cases are pending and considered; provides services to ensure they follow through on asylum requirements; almost 100% appearance rate.
• April 2018: Family separation policy officially implemented and 5,000 children are taken from parents, with many parents deported without children and yet unknown number of other separations.
• June 2018: U.S. Attorney General decision to end asylum for women and others seeking protection from domestic and/or gang violence.
• June 2018: Arbitrary end to policy allowing asylum seekers to be released on parole on a case-by-case basis.
• September 2018: Proposed rule to dismantle key protections for children seeking asylum, including a requirement that kids be released from detention within 21 days.
• September 2018: “Metering” confirmed in DHS Inspector General report.
• November 2018: Bar to asylum seekers who cross between border checkpoints (enjoined).
• January 2019: Migrant “Protection” Protocol (MPP), a.k.a. “Remain in Mexico,” which requires asylum applicants to wait in Mexico for immigration hearings and until decision.
• July 2019: Border enforcement officers begin conducting credible fear interviews with a 47% passage rate vs. 80% with USCIS asylum officers.
• July 2019: Safe third country agreement with Guatemala which facilitates removals of asylum seekers to Guatemala despite fact that Guatemala is a country where thousands escape seeking asylum in the U.S.
• July 2019: Transit ban to U.S. asylum which bars asylum for anyone traveling through another country before arriving in the U.S. unless they apply there first (and get rejected).
• September 2019: Safe third country agreements with Honduras and El Salvador which facilitates removals of asylum seekers to Honduras and El Salvador despite the fact that Honduras and El Salvador are countries where thousands escape seeking asylum in the U.S.
• November 2019: New fee proposal to impose new asylum application fee of $50.  Only three other countries impose fees on asylum – Iran, Fiji, and Australia.
• January 2020: Implementation of expedited deportation programs with little due process that make it virtually impossible to access counsel and information to make a successful asylum claim and appropriately defend it.
• March 2020: Public Health Service Act action to use pandemic to bar asylum applications at the border.
• March 2020: Fee hike for asylum immigration court proceedings which would raise fees in immigration court by up to 800% and impose historic fee on asylum applications.
• June 2020: Proposed comprehensive asylum regulation overhaul which aggregates most Trump asylum actions of the past 3.5 years into one regulation.  
• June 2020: Finalized rule to double the wait time for asylum seeker work permit from 180 days to 365 and limited by how they entered the U.S. Despite law establishing the right to apply for asylum at ports and in between ports of entry, new rule would limit work permit to only those who apply at ports of entry where metering may be in place. 

Refugee:  Over the last 40 years, the U.S. has been a leader in resettling refugees, setting the example for the rest of the world. The U.S. successfully resettled more than 200,000 refugees in 1980, more than 100,000 each year between 1990 and 1995, and more than 80,000 in 2016. A low point came after 9/11 when only 27,000 refugees were resettled, but the refugee program recovered and by 2010 almost 80,000 refugees were resettled. Then, along came the Trump administration and the Muslim Ban placed a pause on refugee resettlement to the U.S., resulting in just 53,700 resettled refugees in fiscal year 2017. In the next few years, those numbers continued to drop as the Trump administration limited the numbers of refugees – 45,000 in fiscal year 2018; 22,500 in fiscal year 2019; and just 18,000 in fiscal year 2020.

Other Humanitarian Programs:  The Trump administration has been busy making it more and more difficult to obtain either temporary or permanent protection in the U.S for various reasons.  

• DACA:  The Trump administration has attempted to end DACA protections for 700,000 young people brought to the U.S. as children.
• TPS:  The Trump administration has ended Temporary Protected Status for over 400,000 people, most here for two decades.
• Victims of crime:  Despite Congress’ creation of a visa for victims of crime who assist law enforcement, the Trump administration has increased the possibility of deportation before the visa application is even reviewed, is rejecting applications for silly, bureaucratic reasons such as requiring answers to every question on an application even if it does not apply to the individual applicant, and encouraging law enforcement not to support victims in their visa application process. There is more to come based upon the administration’s regulatory agenda.  
• Unaccompanied children:  The administration has also made it more difficult for children escaping persecution on their own to obtain protection in the U.S. by denying Special Immigrant Juvenile visa status to 18-20 year-olds, tightening other requirements through policy changes, and is preparing a new regulation on Special Immigrant Juvenile status, according to the Trump regulatory agenda.     

Diversity Green Cards

For three decades, the immigration law has ensured that our immigration system benefits the U.S. and potential immigrants by ensuring immigrants come from all parts of the world, not just those that have been highly represented in the past. The Diversity Visa Program is a set aside of green cards for immigrants coming from countries who are under-presented in the family- and employment-based immigration systems. Pre-pandemic, the Muslim and Africa Bans closed this program to some countries. Without developing and implementing a program to safely keep the program open, President Trump virtually shut it down by barring entry of anyone from anywhere in the world through the Diversity Visa Program under the April 22nd proclamation through December 31, 2020 with the possibility of extension, under Monday’s proclamation. This will have a profound impact on the number of African legal immigrants the U.S. allows in.   

Foreign Students

In 2018, more than one million foreign students studied in the U.S., contributing $41 billion to and supporting 458,290 jobs in the U.S. economy. Since the beginning of the Trump administration, visas for foreign students*** have been under attack and at least three more regulations are forecasted in the Trump regulatory agenda.   

• 4/5/17: Requires students to extend B-1/2 status if USCIS is delayed in adjudicating change of status to student. 
• 4/17/17: USCIS requires more careful review where provisional graduation certificates are being used in adjudication.
• 8/9/18: USCIS grows definition of when unlawful presence begins to accrue for foreign students, creating severe immigration consequences for students without their awareness.
• 8/17/18: STEM OPT users cannot be placed at third party worksites.
• 9/28/18: USCIS issues reminder of serious consequences of status violations within the “cap gap” period.

***Source:  Immigration Policy Tracking Project, Guttentag, Immigration Policy Tracking Project (entries updated as of April 30, 2020).