Trump Ignores Jobs Data To Extend H-1B Visa And Immigration Bans

Donald Trump ignored the low unemployment rate in computer occupations and other economic data to continue proclamations banning the entry of H-1B visa holders and nearly all categories of immigrants. The extension (until March 31, 2021) of the proclamations issued in April and June 2020 shows the danger of the authority under section 212(f), which critics say has allowed the president to override significant parts of U.S. immigration law based on personal ideology.

On April 22, 2020, the Trump administration used 212(f) of the Immigration and Nationality Act to suspend the entry of almost all types of immigrants, including employment-based immigrants, in a proclamation. In Gomez v. Trump, litigation by the American Immigration Lawyers Association and its partners resulted in Judge Amit P. Mehta striking down the State Department’s policy of not issuing or reserving visas for FY 2020 Diversity Lottery winners. However, the judge upheld the proclamation itself and suspending the entry of immigrants using section 212(f).

On June 22, 2020, the administration followed with a proclamation to prevent the entry of H-1B, L-1 and other temporary visa holders. A decision on October 1, 2020, halted the June 2020 action for many employers, but difficulties at U.S. consulates have limited the ruling’s impact. The Trump administration appealed the decision. The appeal is scheduled to be heard on January 19, 2021.

In the October 1, 2020, opinion, U.S. District Judge Jeffrey S. White cited a June 2020 National Foundation for American Policy (NFAP) analysis that showed between January and May 2020 the U.S. unemployment rate in computer occupations had remained stable and actually declined in occupations that lined up with those of H-1B visa holders (based on government H-1B occupational data). That information, contained in plaintiffs’ attorney Paul Hughes’ declaration, was available at the time the administration issued the June 2020 proclamation. The NFAP analysis also found, “During the 30-day period ending June 9, 2020, there were over 639,000 active job vacancy postings advertised online for jobs in common computer occupations, including those most common to H-1B visa holders.”

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“The Presidential finding in the text of the Proclamation, such as it is, is not supported by any review or report proffered by Defendants,” concluded Judge White. “Rather, although its stated purpose is to aid the domestic economy by providing job opportunities for United States citizens, the Proclamation completely disregards both economic reality and the preexisting statutory framework.” He noted, “The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that large number of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers.”

The economic case against the proclamation has grown even stronger since the ruling on October 1, 2020. The unemployment rate for individuals in computer occupations was 2.3% in November 2020, compared to the 3.0% unemployment rate for computer occupations in January 2020 (before the pandemic spread in the U.S.), according to an analysis of the Bureau of Labor Statistics’ (BLS) Current Population Survey by the National Foundation for American Policy. In a broader category, computer and mathematical occupations, the unemployment rate declined from 3.0% in January to 2.4% in November 2020, according to BLS.

As of November 17, 2020, there were 731,762 job vacancy postings advertised online in the previous 30-day period for jobs in the most common computer occupations that typically require at least a bachelor’s degree, according to Emsi Job Posting Analytics. That represents a 17% increase for job vacancy postings in the most common computer occupations since May 2020, with 11 of 12 occupations displaying an increase in active job vacancy postings since May.

On December 1, 2020, Judge White cited National Foundation for American Policy analyses in his opinion vacating regulations to restrict H-1B visas issued by the Department of Labor and the Department of Homeland Security. Judges ruled against the Department of Labor in two other cases, also for violating the Administrative Procedure Act. In all three cases, judges decided that the unemployment rate and other data in the computer occupations most H-1B visa holders worked conflicted with the Trump administration’s assertion that an economic emergency existed.

On the same day that the president claimed he must extend the two proclamations because of the employment picture, Donald Trump released a video in which he boasted about the strength of the economy and employment in the United States. “The proclamation’s message about the economy is also contradictory for the president,” noted CNN. “In a video posted to his Twitter account earlier Thursday, in which the resident touted the growth of the U.S. economy, he bragged about the unemployment rate and said the number is ‘heading a lot lower’ than the current 6.7%.”

The national unemployment rate has dropped by more than 50% since the first proclamation was issued, falling from 14.7% in April to 6.7% in November 2020. For reference, the national unemployment rate between 2010 and 2014 was above 6.7% almost every month. That indicates how unprecedented it is to claim a need to block immigration due to the unemployment rate.

There is no evidence immigration increases the unemployment rate. A study by economist and University of North Florida Professor Madeline Zavodny for the National Foundation for American Policy found,  “On the contrary, the evidence points to the presence of H-1B visa holders being associated with lower unemployment rates and faster earnings growth among college graduates, including recent college graduates.”

An earlier study by Zavodny concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group.” Zavodny explained: “Immigrants may boost consumer demand, start their own businesses, and reduce offshoring . . . of manual-labor intensive jobs in the U.S.” She also points out immigrants tend to work in different sectors, in different parts of the country and even other labor markets within a state.

Indications are that eliminating the two proclamations, along with the travel ban on people from primarily Muslim countries, will be among the Biden administration’s early actions on immigration. “Rescinding the proclamations need not go through notice and comment rulemaking,” said Jesse Bless, director of litigation at the American Immigration Lawyers Association, in an interview. “Biden will only have to find that the suspension of entry applied to certain foreign nationals is no longer detrimental to the interests of the United States.”

Economic facts should play a role in policymaking. Businesses, immigrants and their families almost certainly believe Donald Trump’s decision to continue the administration’s two proclamations despite the economic evidence is an example of fact-free policymaking.