Will 2023 be "annus horribilis" for U.S. immigration law?
This post will discuss the significant headwinds to U.S. immigration law in 2023, with a focus on Employment-Based (EB) immigration law challenges -- Too many people chasing too few options.
In a speech in November 1992, Queen Elizabeth II used the term “annus horribilis” to describe that year. The speech was made just after a devastating fire had swept through Windsor Castle and after a series of challenging events and disclosures in the media involving multiple members of the Royal Family.
I think, sadly, the term may fit well what we are about to face in 2023 in U.S. immigration law. I certainly hope I am wrong, but I believe there are a number of significant headwinds for anyone trying to make their way through what is — even in the best of times — a dysfunctional and opaque system (a bit like the UK royal family?!)
For every aspect of U.S. immigration law, it seems that there are just too many people pursuing too few options.
The U.S./Mexico Border
While my main focus in law practice is Employment-Based (EB) immigration, I do recognize that the dominant issue for many people is the U.S./Mexico border. In fact, I think a large number of Americans (including nearly every elected official from one of our two major political parties) considers the U.S./Mexico border as synonymous with the word “immigration.”
Record numbers of migrants continue to come to the U.S./Mexico border, increasingly from all parts of the world, definitely not just Mexico and Central America. The calendar year we have just completed, 2022, was a year of record border crossers, and there is no indication things will slow down in 2023.
At least as of the time of this writing (on December 31, 2022), the Biden Administration continues to use a Trump Administration Covid/public health policy called Title 42 to limit people who come to the southern border from some countries from applying for asylum. Title 42 basically turns them away at the border.
But even with the ongoing use of Title 42, border cities like El Paso seem increasingly unable to handle the volume of migrants. Complicating the situation is that the current muddled policies at the Southern Border are tied up in a variety of lawsuits that go from federal district courts to federal appeals courts to the U.S. Supreme Court, and back again.
The law seems clear that people who come to the border have a right to apply for asylum; but the law also did not contemplate the volume of people coming now and the system is clearly overloaded.
There is a lot of nuance that is often lost in the public debate, and certainly not understood by the migrants themselves; but I think there is perhaps an emerging consensus that changes need to be made to reflect the current reality, but so far we have not seen clarity by our elected officials on what policy changes should be pursued. These failures certainly pre-date the Biden Administration but President Biden is our President now, and so we look to him and his Administration for leadership and direction on these issues. Neither major political party seems to have a viable, practical policy solution. Both parties have factions that definitely like campaigning on the ‘issue’ as opposed to resolving it.
The abdication of policy making by elected policy makers is increasingly apparent, and I find myself in support of Justice Gorsuch, a Trump appointee to the U.S. Supreme Court, who wrote recently:
“But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.” - Dissent in Arizona v. Mayorkas
Maybe it is obvious, but I believe the ongoing crisis at the U.S./Mexico border will continue to be the biggest challenge for U.S. immigration law in 2023 and until we get some stability at the border I believe it will be hard to improve other parts of the system.
The new G.O.P. (Republican) House Majority
The U.S. House of Representatives will be controlled by the Republicans starting in just a few days. The new House will convene on January 3, 2023, pursuant to the 20th Amendment of the U.S. Constitution.
The conventional wisdom is that Kevin McCarthy will become the new Speaker of the House and he has basically vowed not to take up immigration legislation during his time as Speaker, at least in this Congress with President Biden as President.
Further, several members of the new Republican (G.O.P.) majority have indicated that they want to hold hearings and potentially impeach the Secretary of the U.S. Department of Homeland Security (DHS). Impeaching a sitting cabinet secretary is, in my view, not necessarily conducive to promoting the better administration of U.S. immigration law. It would be ‘theater’ presumably to raise attention and support among base voters, but I don’t know if anything good would come from it in terms of policy development and implementation. Meanwhile, the crisis at the border persists, and as referenced below, other aspects of our immigration system face oversubscriptions and backlogs.
Given the new G.O.P. House majority, and also the likely emergence of more official candidates for President in the Republican party, we are not likely to find ‘relief’ from our immigration woes in the new Congress.
The H-1B Cap
In March 2023, USCIS will conduct the annual H-1B cap lottery. This will be the 4th year that USCIS will conduct the H-1B cap lottery through an electronic registration system.
On the plus side, the registration system makes it much easier to participate in the lottery.
But on the minus side, the registration system makes it much easier to participate in the lottery!
The ease of the system increasingly floods the lottery with speculative and duplicate submissions. There is a similarity between the crisis at the Southern Border and the H-1B cap lottery in that both face so many more people than the system was built to accommodate.
The following are metrics on the H-1B cap lottery filings in the prior 3 years of the electronic registration system:
March 2022 lottery = 483,927 registrations;
March 2021 lottery = 308,613 registrations;
March 2020 lottery = 274,237 registrations.
In 2020, for the first electronic registration lottery, Donald Trump was still President in and we were just entering the pandemic shutdown period.
In 2021, we also were just starting to really emerge from the pandemic.
So it was earlier this year, in March 2022, that we had our first real post-pandemic H-1B cap lottery and we ended up with an jaw-dropping 484k filings.
That is 484k H-1B cap lottery submissions for just 85,000 new H-1B visa numbers. Not very good odds!
For a variety of reasons, I think we will see a NEW RECORD of H-1B cap lottery filings in March 2023, meaning that a person’s chance of success in being chosen in the lottery will be lower than ever.
Traditionally the H-1B temporary work visa was the principal work visa for professionals and used extensively by F-1 international students who wanted to transition into U.S. employment after completing a U.S. degree. But that ‘track’ seems increasingly grim.
I plan to write soon and in more detail about the various reasons why I think the H-1B cap lottery submissions will likely be much greater this year than last; but overall the long odds of the H-1B cap lottery is a big reason I think we need to brace for a “horrible year.”
PERM Labor Certification
Despite some relatively high profile layoffs and hiring freezes earlier in the fall announced at some big technology companies, and despite a generational rise in inflation and a corresponding rise in interest rates by the Federal Reserve, the U.S. job market remains strong and frankly the envy of the world. Employers have lots of job openings and initial jobless claims remain steady. Just last week the Wall Street Journal had a detailed story about how quickly laid off tech workers are getting re-hired.
Looking at the graph above, and consistent with statements made by Federal Reserve Chair Jerome Powell on November 30, 2022, at the Brookings Institution, there has actually been a “net plunge” in immigration. (See Powell quote below). The lack of immigrants combined with ‘excess’ retirements and Covid deaths/long Covid mean U.S. employers are actively looking for both seasonal help and ‘permanent’ help and trying to utilize legal immigration. This means employers generally must go through the labor certification programs run by the U.S. Department of Labor (DOL) for both temporary, seasonal workers (H-2) and year-round, “permanent” positions. But DOL has been unable to keep up with the increased volume of cases and the wait times for processing 9141 prevailing wage requests and 9089 PERM labor certification applications are basically at all-time slow processing.
The current DOL Secretary does not seem to realize this is a problem in his department and although DOL officials closer to the Foreign Labor Certification unit seem to recognize the problematic nature of the increasing backlog, there is no clear indication how things are going to improve in 2023.
Rather, it seems likely the wait times for both 9141 prevailing wage requests and 9089 PERM applications will get longer - not shorter - in the new year, as demand increases.
Again, like we see with the asylum system at the Southern Border, or in H-1B cap lottery submissions, there are just too many cases for a finite system not prepared for the volume. The DOL backlogs are particularly frustrating in light of the fact that the historic labor shortage should mean that the DOL labor market test goes quickly, not slowly; and the historic basis of the PERM program was to be a program dependent on attestations and audits, akin to the IRS and tax filings but it has become an adjudication process similar to USCIS filings where there is some amount of manual review.
Employers really need to plan ahead and anticipate the ‘new normal’ of processing times for PERM.
The Visa Bulletin
I have written regularly about the Visa Bulletin in the last few months, particularly raising alarms that more categories and nationalities are facing cut-off dates, including categories (and nationalities) who have not traditionally had to face Visa Bulletin cut-off date backlogs.
I fear that the cut-off dates we have already started seeing will continue throughout 2023 and I think there is a real possibility that cut-off dates will turn to “unavailability” dates this spring or early summer, meaning that some categories of EB immigrant visas will be unavailable later this year.
The ‘new normal’ for Visa Bulletin backlogs is going to be a rude awakening for employers and individuals who have not been paying attention.
Visa Processing/International Travel
In the year we just completed, 2022, the U.S. Department of State has re-calibrated to try to meet the demand for visa appointments. The U.S. consulates have waived more and more visa interviews and are increasingly open to “third country national” processing. Things have improved for sure through the course of the year but we are nowhere near the pre-pandemic norms.
Backlogs for appointments remain and very recently U.S. consulates had to stop conducting visa appointments in China due to Covid concerns and just this week the Biden Administration will start limiting who can come from China to the United States. For those of us who were engaged in immigration back in early 2020, there is an eery, deja-vu feeling to these developments.
While hopefully these very recent issues are limited to China, I think we have to brace ourselves for ongoing and dynamic developments. After 3 years of being ‘very’ locked down, China has re-opened quickly just before the mass travel associated with Lunar New Year. Certainly the re-emergence of closed consulates and travel bans could be part of the “horrible year” ahead.
CONCLUDING THOUGHTS
I am a broken record on this point but in my view the most important concept to understand in U.S. immigration law is that there is a limited supply of options to immigrate legally and excessive demand.
For various reasons the demand seemed extreme in 2022 and the forces that were at play in 2022 will likely exist again in 2023, layering backlogs on to backlogs and oversubscriptions on top of existing oversubscriptions.
And while this is obviously self-serving, the point of this newsletter is to do my bgest to write and analyze what is happening and hopefully help people navigate the U.S. immigration system for success.
We can always remain hopeful that elected policy makers will recognize the shortcomings of our existing system and devise some improvements to help address the mismatch of limited supply and excess demand.
No matter what - the sun will rise tomorrow. And hey, just be glad with a prognosis like this, I wasn’t a guest at your New Year’s Eve party!
