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Immigration Law

4 ways the Biden administration can improve the employment-based immigration system without Congress

Dan Berger, Steve Yale-Loehr, Emily Hindle, and Hun Lee, January 28, 2021, Brookings

"Despite our collective decades of experience in immigration, our heads have been spinning. The immigration world is very much in flux as numerous court cases challenge Trump administration immigration changes, and COVID-19 has led to the rethinking of some established practices. For instance, the week before the inauguration, the Trump Administration announced a new compliance office to oversee STEM OPT (36 months of work authorization for international students in science, technology, engineering and math). At first there was fear – would the new enforcement effort discourage students from choosing the United States to study? An article in Forbes magazine the day before the inauguration wondered what tack the Biden Administration would take. Those interviewed hoped the new OPT oversight program could actually be used to send a strong message to international students, and provide much needed support and assistance to schools, students, and ultimately the employers seeking to hire them.

Following on this example, the Biden Administration can dramatically improve the employment-based immigration system in the United States, without help from Congress, based on specific strategies that we lay out below.

This article recommends specific actions that the Biden administration should take to support employment-based immigration that do not need congressional action. In drafting, we noticed that: (1) many others had written on this general topic, ranging from simple bullet points to long discussions; and (2) structural change will lead to longer-term improvements more than individual actions.[1] Specific recommendations are a moving target, and one more reason why we focus instead on structural changes to help our economy attract and retain needed international essential workers. While humanitarian and family immigration categories may deservedly take much of the initial immigration attention of the Biden administration, employment-based/student immigration is particularly important for economic growth. As the Biden Administration is facing demands from many stakeholders on how to reform the immigration system, we reviewed plans from 14 organizations published after the 2020 election to help focus the discussion on employment-based/student immigration. We found four trends and present them here: (1) remove impediments to immigration; (2) improve the predictability of the immigration system; (3) resume the use of discretion by immigration officers; and (4) expand customer service. Those 14 plans are linked below with summaries, and we believe they align with the general Biden immigration goals. It is our hope that positive changes in this policy area will occur, particularly as the majority of Americans support legal immigration.

We have chosen to include in this analysis F and J visas for international students and scholars, even though they are not technically part of the employment-based immigration categories.  International students face hurdles to work in the United States after graduation, even though many studies demonstrate the economic value of international students and scholars. Just recently, the National Center for Science and Engineering Statistics noted that forty percent of doctoral degrees awarded in science and engineering last year went to temporary-visa holders, and former UN Ambassador Samantha Powers argued in Foreign Affairs for using the U.S. immigration system to promote ‘academic excellence.” Forbes magazine has recently taken the same approach we do in grouping employment-based visas and student visas in looking forward to the Biden agenda."