U.S. Immigration Law (2000 to 2024): A Quarter-Century of Policy Failure
This post identifies highlights (and lowlights) that have impacted U.S. immigration law since 2000, with a focus on EB (Employment-Based) Immigration. Subsequent posts will drill down on details.
Since the start of the 21st Century, U.S. political leaders of both parties have failed to address the nation’s immigration laws. And things have become worse. The only consensus is that basically no one is happy with the current system.
Broadly speaking, I believe there are 3 areas that should be considered (again, broadly speaking):
How to Manage the U.S./Mexico Border; and
How to Deal with the Undocumented Population already in the United States; and
How to Develop an immigration system that meets the needs of our country’s employers, including the need for certain manual labor (like farm workers) and attracting top talent. This third issue also ties into the demographic challenge that the United States, like most “rich” countries face, namely not enough native-born population growth.
The two major political parties are so at-odds about how to legislate around the above 3 areas that nothing has really been done in Congress for pretty much all of the 21st Century, and the lack of attention to these things have just made conditions worse.
Both sides seem to think they are winning on the issue and are therefore not incentivized to compromise. Over the course of the last quarter century immigration went from being a bipartisan issue (with skeptics in both parties) to all the skeptics and restriction-oriented people in the Republican party.
Importantly, major national events and of course elections have impacted how U.S. immigration law has developed (or more precisely, NOT developed) in the 21st Century.
This post only provides a bullet-point chronology of topics that I hope to discuss in more detail in the coming weeks and months. It is not meant to be comprehensive but hopefully lays out some of the key points, again with a focus on EB immigration topics.
2000: AC21. This law created all kinds of benefits to employment-based immigrants. It passed through 2 Republican-controlled Houses of Congress and was signed by a Democratic President (Bill Clinton).
2000: The Life Act. This law importantly extended the date for 245(i) benefits to April 30, 2001. Also passed by 2 Republican-controlled Houses of Congress during the lame duck in December 2000.
2001: Terrorist Attacks on 9/11. This event really changed the trajectory of U.S. immigration law and policy in ways we may still not fully appreciate.
2004: Re-election of President Bush. He was supposed to take up social security reform and immigration reform in his second term. Neither happened.
2005: PERM labor certification starts. PERM was started to deal with fraud in the old system along with the huge backlogs that came after 245(i).
2006: Failed CIR Act of 2006 (passed the Republican US Senate, died in the US House).
2008-2009: Great Financial Recession (GFR). The slow recovery after the GFR and the acceleration of income inequality in the United States seems to have pushed more strident extremes on immigration policy that continue to this day. Prior to Obama there were immigration skeptics in the Democratic party (including Bernie Sanders!) and there were pro-immigration Republicans (remember Spencer Abraham?)
January 2009: President Obama wins and gets a filibuster-proof Congress. He focuses on Obamacare and not immigration reform.
November 2010: “Shellacking” - Big Republican win by the Republicans to take control of the U.S. House of Representatives. This was the Tea Party election in response to Obamacare.
2012: DACA and the Re-election of President Obama.
2013: Failed Gang of 8 Immigration Bill (passed the US Senate, died in the US House). This seems to be a significant development because the populist defeat of the Gang of 8 bill could be seen as the birthplace of the Trump policy positions on immigration. There was a feeling after the 2012 defeat of Mitt Romney that Republicans needed to be more ‘enlightened’ on immigration and the Gang of 8 bill was a product of that ‘enlightenment’ - but it was defeated by the U.S. House and immigration skeptics in the Republican party have basically succeeded in purging the party of pro-immigration viewpoints.
November 2014: Republicans take back U.S. Senate and retain U.S. House for final 2 years of Obama’s second term.
November 20, 2014 (after the election): The obscure and easily forgotten (but extremely important) Jeh Johnson memo. This memo, entitled, “Policies Supporting U.S. High Skilled Businesses and Workers” basically created the impetus for the “2 charts” idea for the Visa Bulletin and Matter of Dhanasar, as well as STEM OPT.
2015: The October 2015 Visa Bulletin and the introduction of 2 charts and the USCIS pushback.
2016: Matter of Dhanasar.
2016: AC21 regulations (after only 16 years!)
2016: The Election of President Trump. The Trump Administration was very effective at putting its policy preferences into effect within the U.S. immigration system but this is also the period when EB immigration attorneys started to litigate and push back, and that openness to litigating has continued into the Biden years.
2020 (FY2019): The pandemic and closing of U.S. Consulates.
2020: The October 2020 Visa Bulletin.
2021: The Election of President Biden and the undoing of various executive actions by President Trump.
2021: Unused EB immigrant visa numbers for FY2021 and FY2022.
2022: Biden Administration’s Dhanasar “Force Multiplier” memos and policy guidance.
2022-2023: Expansion of Premium Processing to all categories of I-140s.
2022-2023: EB I-485 Processing at Field Offices, which means USCIS processes EB I-485s much faster to avoid the embarrassment of unused immigrant visa numbers that occurred during FY2021 and FY2022.
2024: The Expansion of Cut-off Dates on the Visa Bulletin to EB-1 India and EB-1 China and EB-2 Rest of World (ROW) - perhaps a permanent feature of the Visa Bulletin barring new legislation or an enlightened view of Chart B.
2024: The Biden Border Bill passes the U.S. Senate and dies in the U.S. House, similar to the Gang of 8 bill in 2013 and the CIR bill in 2006; but I have seen very little analysis about how the bills keep getting more restrictionist, which seems to me a clear sign that the restrictionist argument is winning. Those of us who support immigration are supposed to pretend we are winning but every time a big bill passes the Senate, it is worse than the bill before it (but still not ‘good enough’ for the Republican U.S. House).
I apologize that this post is deficient in many ways.
The mantra, “Do not let the perfect be the enemy of the good” resonates, I believe, with all EB immigration professionals and it could also be the mission statement of this newsletter.
For a long time I had hoped to write something very comprehensive about this timeline but I never find the time!
So I am putting it out there now as essentially an outline for further discussion.
Thanks for taking time to read this.