Education Spending, Social Security and Immigration

In looking at news reports over the last several weeks, several jumped out at me. A couple discussed immigration and social security, and several more discussed immigration and education spending. These are two very different issues, but both are being impacted by immigration – both those coming with documentation and those coming without.

First, in terms of those coming to the US with documentation. In terms of the article on Education spending, that is not really addressed because, according to the article, those people are paying taxes, etc., so they are paying for their educational costs. Regarding social security, immigrants coming to the US on valid non-immigrant and immigrant visas are helping to keep our Social Security system solvent. Why is that? According to the article in the Motley fool:

Most people legally migrating to the U.S. tend to be younger, which is an extremely important point. These are people who will spend decades in the labor force contributing to Social Security via the payroll tax. The 12.4% payroll tax on earned income (wages and salary) was responsible for providing approximately $981 billion (90.1%) of the $1.088 trillion in revenue Social Security collected in 2021. 
The intermediate-cost model in the 2022 Trustees Report — the “intermediate-cost model” is what the Trustees view as the outcome likeliest to happen — is based on average annual total net immigration of 1,246,000 people.  Between July 1, 2012, and June 30, 2017, fewer than 955,000 total net migrants entered the U.S. annually, according to data from the World Bank.  If net migration into the U.S. continues to fall, or even steadies at these reduced levels, it’s all but a certainty that Social Security’s funding shortfall will grow.

Motley Fool, January 28, 2023

As can be seen, immigrants to the US, in general, are younger, thereby providing more productive years in which they are earning taxes and paying into the system. And in fact, the lowering levels of immigrants being allowed in legally is HURTING our ability to fully fund Social Security.

What about those coming in without documentation? Surely they are costing us more money? The answer is not relatively that easy. In terms of education, because of a Supreme Court case from 1982, Plyer V. Doe, 457 U.S. 202, ALL children are eligible for free public education, including those without documentation. So States are required to spend money to educate those who come to the US and are age-eligible for public education (under the age of 21). How much does this cost? It is difficult to figure out exactly, but looking at the figures that The Hill used in a recent article, here is what it comes out to:

The Pew Research Center says that the number of illegal immigrants expelled under Title 42 – which allows the government to expel immigrants during a public health emergency – declined during 2022, from about 50 percent to about a third. That would leave some 1.5 million.

There was another estimated 600,000 who avoided border patrol in 2022, for an estimated total of 2.1 million new undocumented immigrants living in the country.

If we use TRAC’s estimate of 37 percent being children, that’s about 777,000. Of course, not all of them are school age. If we subtract, say, a third of them for being too young to enter public school, that leaves us with about 513,000 school-age children.

Multiply that times the average cost of a public education, $14,840, and that equals about $7.6 billion in new public education costs for just one year’s worth of undocumented children. And while the migrants have spread out across the country, a relatively small number of states and cities must cover most of those costs. 

The Hill, 1/31/2023

While the article goes on to say that the adults who come over without documents will eventually work, maybe, and equivocate about whether they can legally work or will work, the article does present a stark picture of approximately $7.6 billion in additional costs every year. Again, however, this is not the full picture. While those who ENTERED this year may not be able to contribute immediately, there are other people in the US without documentation – how much do they contribute? Well, again, according to the Motley Fool article:

What’s more, a study from New American Economy showed that undocumented workers contributed $13 billion in payroll tax revenue in 2016. These undocumented workers either used a friend’s or family member’s Social Security number to obtain work, or their employer failed to properly vet the worker. Either way, more than 1% of Social Security’s annual revenue derives from undocumented workers, yet not one cent of benefits from traditional Social Security will be returned to these workers.

Motley Fool

So while there may be $7.6 billion in education costs a year, there is $13 billion in payroll taxes – which more than covers those costs. In addition, our Social Security system is receiving 1% of its annual revenue from these sources, and these are people who will never see any of that social security money.

As stated at the beginning of this article, it is tricky to look at the costs and benefits of immigration, either for those who come with documentation or those who come without documentation. But overall, almost every study has shown that there is a net benefit not just to those who come over with the correct papers but also to those who have entered without documentation. Hopefully, someday, our politicians will look at our immigration system and how much it is hurting our economy and our society and start making policies based upon that instead of the current climate of scare politics being used to frame the immigration debate.

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Can we afford to not reform our immigration system?

Photo by Andrea Piacquadio on Pexels.com

While reviewing immigration news this week, two articles jumped out at me. Both were about the importance of immigration to the US economy.

The first was in Yahoo! Finance and reported on a press briefing by the Secretary of Labor on the November Job Numbers. During this briefing, he (the Secretary) first highlighted the fact that there was overall growth in job levels and well as in average hourly earnings, but that the unemployment rate remained quite low, at 3.7%. According to the Secretary, this showed that the current US Immigration system, allowing only a very limited number of skilled workers in every year, is a threat to our economy. (Link to article here). The Secretary also noted, that during his travels across the country, while talking to businesses, he repeatedly heard that businesses are desperately looking for employees and cannot find them. Considering there are approximately 10.3 million open jobs in the US, many for skilled worker, it is no wonder that they cannot find employees and no wonder that they are very in favor of immigration reform.

In addition to showing the need to fix our broken immigration system, these numbers also showed that, as of yet, there was no rush of US Citizens looking for employment once pandemic restrictions eased and people started going back to acting normally, which economists thought could happen and would ease the current employee crunch.

The second article discusses a speech given by the Federal Reserve Chairman, Jerome Powell at the Brooking’s Institute , in which he touched on the state of our economy, immigration, and the potential for a recession. It quotes Mr. Powell saying:

The truth is that the path ahead for inflation remains highly uncertain. For now, let’s put aside the forecasts and look instead to the macroeconomic conditions we think we need to see to bring inflation down to 2 percent over time.

In the labor market, demand for workers far exceeds the supply of available workers, and nominal wages have been growing at a pace well above what would be consistent with 2 percent inflation over time. Thus, another condition we are looking for is the restoration of balance between supply and demand in the labor market.

The second factor contributing to the labor supply shortfall is slower growth in the working-age population. The combination of a plunge in net immigration and a surge in deaths during the pandemic probably accounts for about 1-1/2 million missing workers.

Jerome Powell

When looked at together, both these articles paint a strong economic argument for everyone to be in support of immigration reform and expanding our current immigration system. Instead of hurting our economic situation, immigration helps. Study after study has shown this, and these two prominent government officials are simply stating the obvious at this point – in order to keep from sliding into more of a recession we need to reform immigration now.

EB-2 Backlogs for All Countries as of December 1, 2022

The December 2022 Visa Bulletin was released today. In the new bulletin, the Department of State has determined that the EB-2 category needs to be backlogged somewhat because of demand. As a reminder, the EB-2 category includes employer-sponsored applications for positions that require an Advanced Degree (Master’s or higher degree) as well as the National Interest Waiver (NIW) self-sponsored applications.

As of December 1, 2022, the FINAL ACTION DATE for all EB-2 cases will be November 1, 2022. This means that only those I-140 EB-2 applications filed prior to November 1, 2022, would be able to have their Adjustment of Status application (I-485) approved (assuming that you had already filed the adjustment of status before December 1, 2022).

As of December 1, 2022, the DATE FOR FILING will be December 1, 2022. USCIS has indicated that it is using the Dates for Filing in December – this means as long as you filed the I-140 before December 1, 2022, you can file your I-485 at that point. However, every month USCIS re-looks at which table it should use to determine filing dates. USCIS decides between allowing people to file the I-485 based upon the Dates for Filing OR the Final Action Dates, and we do not know, as of yet, if, after December, USCIS will continue to use Dates for Filing or not. We will update you as we find out.

The above means that, as of December 2, 2022, there will no longer be ANY concurrent filing of the I-140 NIW and the I-485 allowed. This applies to everyone, regardless of where you were born, and this is a major change for everyone on very short notice. Please contact us if you need more information or help to file quickly.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult a lawyer instead of a blog. Thank you.

Breaking: USCIS extends automatic extension of EADs from 180 days to 540 days

USCIS will issue a temporary final rule providing that the automatic extension period applicable to expiring EADs for certain renewal applicants who have filed Form I-765 will be increased from up to 180 days to up to 540 days from the expiration date stated on their EADs.

This increase will be available to eligible renewal applicants (all renewal applicants who could take advantage of the 180 day period can also take advantage of the new 540 day period) with pending Forms I-765 as of 5/4/22, including those applicants whose employment authorization may have lapsed following the initial 180-day extension period, and any eligible applicant who files a renewal Form I-765 during the 540-day period beginning on or after 5/4/22, and ending 10/26/23. The temporary final rule will be published in the Federal Register on 5/4/22. Comments will be accepted through 7/5/22.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS transferring almost ALL EB I-485s from TSC and NSC to the National Benefits Center

Image from Immigration Impact

USCIS has majorly reconfigured how it is handling I-485s based upon I-140s. For all I-485s based upon I-140s EXCEPT Employment Based Category 4 cases (religious workers and some other special immigrants), USCIS is transferring the I-485 cases from the Texas Service Center and the Nebraska Service Center, where they are currently handled, to the National Benefits Center.

Here is what AILA has learned of the process:

EB Form I-485 cases already with officers will continue to be adjudicated at the NSC and TSC, as will Requests for Evidence (RFEs) that have already been issued. NSC management has not provided a timeframe for how quickly individual cases will be transferred to NBC, but they informally indicated that approximately a thousand cases per week are already being shipped and that the number is expected to rise sharply. Members are reporting that they have started to receive transfer notices for their clients’ I-485 applications followed by the online case status update. This is described as a long-term jurisdictional change directed by USCIS-HQ, and NSC, TSC and NBC are all in the process of implementing it.

AILA Practice Alert: AILA Doc. No. 22040104 | Dated April 1, 2022

Will this actually work to bring down processing backlogs and shorten the time frames for cases? Certainly it should help with I-140 timeframes, as it frees up TSC and NSC to adjudicate more of those cases. In terms of the I-485 cases, that will remain to be seen – but it is a hopeful move that they are consolidating these cases, both for the speed of adjudication and for consistency in adjudication. However we will need to wait and see what happens. We will keep you updated.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Local USCIS Office Personnel being pulled out to help Afghan Refugees

USCIS has indicated that some local USCIS office personnel are being pulled out of the local offices to go to US Military bases to help process the incoming Afghan Refugees. In the local DC Field Office all September (or, at least, many) appointments have been cancelled so that personnel can help with the refugees, and the same may be true in other field offices. If you received a cancellation notice recently, this very well may the reason.

It is also likely that, at least those cases that require an interview, such as family based cases, may take a little longer to have those interviews scheduled because of this need, so keep that in mind as well.

In other news, Immigration Briefs now has a podcast as well. You can find us under the name Immigration Briefs on iTunes, Spotify or in other podcast feeds. If you cannot find it in your favorite podcast player, let me know via info@immigrationbriefs.com. Thank you.

New Administration Halts Implementation of Pending Regulations, Withdraws Travel Ban

The incoming administration has issued an order halting the implementation of all proposed rules that are not yet final for 60 days (so until March 20, 2021). This includes the DOL wage change rules as well as the USCIS changes to the H-1B process (see a description of these rule changes here). Hopefully, the rule changes will be withdrawn, but we will keep you updated on that.

Another USCIS change in terms of H-1B’s is now withdrawn. USCIS had a proposed amendment that had not yet been published in the Federal Register, which would have changed the rules in terms of the employer-employee relationship and third party placements (a description of the rule can be found here). However, the executive action by the Biden administration has automatically withdrawn all rules not yet published. Hence, this rule will not be implemented.

Additionally, through an executive order, the Biden administration has withdrawn the executive order and Proclamations that banned the entry of people from certain countries (mostly Muslim) and allowed for heightened scrutiny in many cases. In addition, the order has also included a provision requiring the Embassies to re-open cases denied because of these Executive orders and re-adjudicate them as well as ordering the Embassies to clear out their backlogs quickly. However, as of yet, the ban on issuance of immigrant visas and some temporary visas because of the Covid pandemic is still in place, as are the travel restrictions from Europe and other countries with high infection rates. If you have any specific questions about whether a particular order affecting your immigration or a family member is still in effect please contact me and I am happy to help.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS and DOL re-issue new H-1B selection process and new Prevailing Wage calculations as Final Rules

Just this week, USICS and DOL issued new final rules that will take effect in 60 days. Before getting into the details of the rules, it is important to note that the new Biden administration has stated that it will halt implementation of new rules for at least 60 days (we do not know if this is added onto the already established start date or is from the date of the order – we will have to see) and may or may not revoke or revise the rules during that period. Also, the rules will probably face lawsuits as well so whether they are actually implemented or not remains to be seen.

A post describing the new laws in detail is here (for DOL Rule) and here (for USCIS rule) if you are interested in a more in-depth explanation. As a summary:

(1) the New H-1B registration policy would allow USICS to select cases based upon the salary being offered (favoring those with higher salaries) instead of purely a random lottery.

(2) the new DOL Prevailing Wage Regulations would raise the salaries at all levels of prevailing wage. However, DOL did amend the regulation a little so the current level 1 (which is at the 17th percentile of the wages) would be raised to the 35th percentile, level 2 (currently at 34th percentile) would be raised to the 53rd percentile, level 3, currently at the 50th percentile) would be raised to the 72nd percentile, and level 4, currently at the 67th percentile) would be raised to the 90th percentile. This means, basically, the new level 1 is almost equal to the old level 2 – that is going to be how much higher wages required under this new scheme will be across the board.

As soon as hear anything in terms of lawsuits or the new administration putting these new rules on hold, we will certainly let you know.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS New Public Charge Rule and I-944 Form Back in Force

On September 11, 2020, the Second Circuit Court of Appeals limited the scope of the preliminary injunction on the USCIS new public charge rule issued by the New York State District Court. The Court of Appeals changed the injunction from nationwide to only applying to New York, and two other states in the jurisdiction of the Court (it was a little more complicated than that, but this was the result). When the New York District Court first entered its nationwide injunction, USCIS immediately stopped enforcement of the new rule and no longer required the new I-944 form. Because of the ruling of the 2nd Circuit Court of Appeals, there was speculation that USCIS would re-implement that rule. It took two weeks, but USCIS has finally re-implemented the public charge rule. In a statement put out yesterday, USCIS indicated that any case filed since the new rule was put out and before October 13, 2020, that did NOT include the I-944 and/or supporting documents would be issued a Request For Evidence for the documentation. Come October 13, 2020, however, any case received by USCIS without the I-944 and supporting documents would be rejected.

For those not familiar with the new rule, USCIS changed its longstanding public charge rule to expand the types of public support that could affect the ability of someone to show that they would not likely become a public charge. In addition, USCIS greatly expanded the documents required for it to make a determination on whether someone would become a public charge. Under the new rule, a new form, the I-944 form, was required for immigrants which required information on all assets and liabilities for each applicant as well as proof of health insurance, marketable skills, language skills, and credit score and report. Once USCIS had all the required information and documents it would balance the positive and negative factors to determine if it felt someone would likely become a public charge. In addition to the above, many of the non-immigrant forms also now include certain questions on public charge issues as well.

We will update you with any other changes or update to this rule. And remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Biden wants to Roll Back the Immigration Policy changes made by Trump. Will that be possible in his first four years?

There was a recent, very interesting article published by NPR that highlighted the problems that may be faced by the Biden administration (if he wins the election) in rolling back the changes implemented by the Trump administration. You can read the full article here.

While there were several possible barriers raised by the article that could stand in Biden’s way of changing such immigration policies, the biggest, and hardest barrier to break through, in my mind, is the culture that has been created at USCIS, ICE, CBP and other related agencies. According to the article:

“That isn’t something that’s a light switch. You can’t change culture within an organization that vast overnight,” says Angela Kelley, senior adviser to the American Immigration Lawyers Association. “So I agree that it’s going to be a long, long road.” 

CBP produced an ominous, fictionalized video on the Border Patrol’s YouTube channel that depicts a Latino migrant who had just escaped from agents, attacking and knifing a man in a dark alley. The video was released at a time when Trump has been stoking fears about violent immigrants at his campaign rallies. For an example of how the Border Patrol is marching lockstep with the White House, look to a video titled “The Gotaway,” posted earlier this month. 

NPR inquired why the video was made and why it was removed a week later before being re-posted. Border Patrol Chief Rodney Scott said in a statement that the video was produced “to enhance awareness that effective border security helps keep all Americans safe,” and it was briefly pulled because they misused copyrighted materials.

NPR, Morning Edition, September 14, 2020

Changing such a culture will take time. While changing those at the top will help change the policies the officers act under, getting those changes to be implemented by officers, and getting them to change their attitudes will take quite a while, especially at ICE and CBP. USCIS may be somewhat easier to crack as the officers there are not dealing with deportation or apprehending people on a daily basis and are not necessarily as hard lined (although, most likely, some are as well). Changing the policies at USCIS may be enough to allow officers to change the way they adjudicate cases without to much time passing.

Again, according to the article:

“I don’t think it’s realistic that Biden in four years could unroll everything that Trump did,” says Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank in Washington, D.C. 

“Because of the intense volume and pace of changes the Trump administration enacted while in office, even if we have a new administration, Trump will continue to have had an impact on immigration for years to come,” Pierce says.

NPR, Morning Edition, September 14, 2020

While, overall, it may take a long time to affect all these changes, I do think, that there are some basic policies that could be changed much quicker (in terms of USCIS). First, the requirement of an interview for all cases – that could be changed very quickly. In addition, some of the more hardline looks at H-1Bs could also be changed rather quickly, as could the removal of harmful Executive Orders that limit immigration. So there is a lot that could be done relatively quickly as well.

We must also remember, that, if Biden is able to get Congress on his side as well, and a new immigration law is passed, that could significantly increase the rate at which changes can be made both inside USCIS as well as inside ICE and CBP (if such a law limits their jurisdicition and ability to act inside the law).

Overall, it could take longer for many changes, especially those at the border to be fully put in place. While some changes, those that primiarily are implemented by USCIS, may be able to be implemented earlier. We shall see what happens in November and what happens in January, should there be a change of administration.