At the House hearing at which I testified, Congressman Chip Roy (R‑TX) asked, “How many people immigrate to other countries each year?” Center for Immigration Studies’ Robert Law—former chief of the Office of Policy and Strategy for U.S. Citizenship and Immigration Services—told him that the United States grants more green cards than “the rest of the world combined.” Fortunately, I was able to respond and explain that this is wildly inaccurate. The United States definitely does not permit more immigration than the rest of the world combined, and it is not close.

At the time, I explained that at least ten times more immigrants went to other countries than went to the United States during the most recent 5‑year period available, but new numbers from the United Nations (UN) show that even this figure was too generous to the United States. From July 2019 to July 2020, the UN estimates that the United States accounted for none of the growth in the global immigrant population: 0 percent of the net increase of 9 million immigrants worldwide were immigrants in the United States in 2020. According to the UN estimates (using Census Bureau data), the U.S. immigrant population stopped growing altogether from July 2019 to July 2020.

Figure 1 shows that in the 1990s, the U.S. did account for the majority of the growth in the world immigrant population (defined, for consistency across countries, as people living outside their birth country). From 1990 to 1995, nearly two-thirds (63 percent) of the growth in the global immigrant population came from U.S. immigrant population growth. From 1995 to 2000, it was 52 percent. It then dropped to a quarter from 2000 to 2005. By 2015 to 2020, it was down to 7.5 percent. But from 2019 to 2020, the United States stopped being a net contributor to world immigrant population growth.

Figure 2 shows the net increase in immigrants worldwide and the net increase in immigrants in the United States during each period since 1990. The increase in immigration outside of the United States was the main contributor to the decline in the U.S. share of global immigration. However, U.S. immigrant population growth also declined in absolute terms from a high of nearly 6.4 million from 1995 to 2000 down to 2.5 million from 2015 to 2020 (and a negative roughly 30,000 from 2019 to 2020).

The UN uses a slightly different definition of an “immigrant” than the U.S. Census Bureau. In order to allow for comparisons between countries that have different citizenship rules, the UN includes all people born outside of the country, even though some of those people may receive citizenship at birth, either by being born citizen parents or in an overseas territory. It also treats people born in territories as immigrants if they move to a home country (and vice versa). But these differences do not change the overall picture: accounting for them increases the U.S. share of global immigrant population growth by only about a half a percentage point.

It is also true that the UN data only measure the net increase in the immigrant population—that is, inflows minus outflows—not just the gross inflow of immigrants to the United States or worldwide. The UN does not have comprehensive data on flows of immigrants, but the Organisation for Economic Co-operation and Development (OECD) does have data on flows for 37 countries from 2016 to 2019. These data show that the United States accounted for just 12 percent of the immigration flow among those countries in 2019, and that is without data for more than 150 countries including the Gulf States which lead the world in foreign-born share of their populations.

Robert Law did specify that he was talking specifically about permanent residents. But even if we limit this analysis, the United States does not come close to a majority of the flow of legal permanent residents worldwide. In fact, in 2020, U.S. immigrants accounted for just 14 percent of immigrants becoming permanent residents in just the OECD—down from 27 percent in 2009. At no point during this time did the U.S. share ever approach a majority of all permanent residents. Again, this dataset leaves out more than 150 other countries. The U.S. share of total legal permanent immigrants is almost certainly well below 10 percent worldwide.

The new data from the UN shows that the United States does not permit more immigration than the rest of the world combined. Indeed, the United States ranks low in terms of net immigration and foreign-born share of the population compared to other wealthy countries, and it is losing the race for talent around the world. Other countries are increasing immigration, and the United States has gone the opposite direction. Congress and the administration need to seize the opportunity to change this dynamic.

Immigrant workers seeking a green card—which denotes legal permanent residence in the United States—now face more than a three-year wait to make it through the government’s regulatory morass. Paying a $2,500 fee could cut this wait to “only” 2 years and 5 months. The government has added nearly 16 months to the average green card process since 2016, with more than a year added in 2021 and 2022 alone. These processing delays come on top of the time to wait for a green card cap slot to become available under the annual limits (which can be many years). They also do not include the time spent to comply with regulations prior to the first filing step. This prefiling period can take months.

Total green card processing times

• • 2022 Regular Processing Time: 1,171 days, 39 months, 3.2 years
    • If paying the $2,500 premium processing fee: 862 days, 29 months, 2.4 years
  • 2016 Regular Processing Time: 705 days, 23 months, 1.9 years
    • If paying the $2,500 premium processing fee: 567 days, 19 months, 1.6 years

Most employer-sponsored immigrants pass through a six-part series of bureaucratic steps. Employers must initiate the process, but the employee must participate in each stage.

1. Prefiling stage: This stage requires the applicant and employer to gather the necessary documents to prove their eligibility for a green card. This includes proof of degrees, the employer’s ability to pay, and work experience letters. These letters must contain detailed information from the employee’s job duties and tenure, and there is no particular reason why a past employer would want to provide this information.
   • 2022 Time: The public has effectively no information about how long this stage will take. Attorneys say that it could take anywhere from a few weeks to several months.
2. Prevailing wage determination: The Department of Labor evaluates the job duties, skill requirements, and location of the job to assign a specific occupational classification, skill level, and area code. Based on these factors, DOL uses its Online Wage Library to issue a prevailing wage determination. The average wait for the prevailing wage has nearly tripled since 2016.
   • 2022 Time: 182 days, 6 months
   • 2016 Time: 76 days, 2.5 months

3. U.S. Worker Recruitment: Under DOL regulations, employers must also recruit U.S. workers through a specified process that involves multiple newspaper advertisements. They must conduct interviews of applicants if their resumés meet the “basic” criteria, even if they do not meet all the criteria.
   • 2022 Time: 149 days, 5 months (from the prevailing wage determination)
   • 2016 Time: 131 days, 4 months

4. Labor certification: Employers must then apply for a labor certification from the DOL, which will certify that no “minimally” qualified U.S. worker responded to the job advertisements and that the employer did the required steps.
   • 2022 Time: 213 days, 7 months
   • 2016 Time: 180 days, 6 months

5. Employer petition: Employers must then file a petition with the Department of Homeland Security (DHS). DHS will verify that the worker is qualified for sponsorship and confirm the employer’s ability to pay. This is one of the few procedures where employers can pay to skip the waiting. The regulations allow an employer to pay a $2,500 fee (compared to $700 normally) to receive a response in 15 days (unless the government wants additional information).
   • 2022 Time: 324 days, 11 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee
   • 2016 Time: 180 days, 6 months
     • 15 days, if eligible for and able to pay a $2,500 premium processing fee

Here is where the employee would wait for a cap number to become available under the annual limits.

6. Green card application: The green card application (Form I‑485) is the request for the employee to adjust status (usually from a temporary work visa status) to legal permanent residence. The worker must undergo a background check, medical screening, and confirm that the original job offer still exists.
   • 2022 Time: 303 days, 10 months
   • 2016 Time: 165 days, 5.5 months

The process is leading to massive processing backlogs in the employer-sponsored immigration system. Again, these processing backlogs are in addition to the backlog of workers waiting for a cap spot to become available. We don’t know how many people are going through the recruitment stage, but the total employer-sponsored processing backlogs at the Department of Labor and the Department of Homeland Security have more than doubled since 2016.

With a process this long, it is no surprise that well over 90 percent of immigrants must already be in the United States to obtain employer sponsorship. These delays create a de facto requirement for employees to use an H‑1B or other temporary work visa before they can access a green card. In other words, the true government processing time is much longer when you factor in the time it takes to obtain a temporary work visa before an employer begins the green card process.

Sadly, the Department of Labor is gearing up to finalize a rule very soon that, among other problems, will take more resources away from processing prevailing wage applications. It is also planning to release another rule that will directly complicate prevailing wage determinations for green cards and H‑1B visas. This is the exact opposite of what the government should be doing to alleviate the processing delays in the employer-sponsored immigration system.

Indeed, all these procedures are wholly unnecessary. Employees with a green card can negotiate fairly for wages since they can leave to find another employer. There is no reason to require U.S. worker recruitment since immigrant workers create an equivalent demand for U.S. workers elsewhere in the economy. Employers can judge a worker’s qualifications better than a government entity. Requiring health screenings and background checks of workers who were already screened abroad and who are now living in the United States for years is just absurd.

America will lose the global competition for talent when other countries grant green cards in a matter of a few weeks or months, not years. It’s time for the U.S. government to radically streamline its immigration system and eliminate unnecessary burdensome procedures.

Identifying and analyzing arguments against increased legal immigration has been one of the core components of my job over the last decade. Most of those arguments are flimsy. The effect of immigrants on wages is small and to the benefit of complementary native-born American workers. Immigrants are less criminally inclined than native-born Americans. Immigrants and their descendants assimilate quickly into American culture. The threat of terrorist attacks carried about by foreigners on U.S. soil is real but also small and manageable. But one argument stands out to the point where I’ve co-authored academic papers, working papers, and a book with Cambridge University Press addressing whether immigrants could reduce long run economic growth in the United States and “kill the goose that lays golden eggs.”

The Golden Goose argument goes something like this: Immigrants typically come from poorer countries. There are several reasons why these destination countries may be poor, such as unproductive economic and political institutions, a culture that is somehow inconducive to economic growth, endemic corruption, violence, or other factors. If the immigrants to, say, the United States were to bring those anti-growth characteristics with them from their home countries, then they could affect U.S. institutions, culture, corruption, violence, or other features of our rich society such that long-run growth is slowed in the United States, halted entirely, or even reversed. In that case, the predicted economic benefits of liberalized immigration wouldn’t materialize and there could even be a net cost.

The Golden Goose argument isn’t supported by the evidence. The quality of economic and political institutions either improves or remains unchanged after large increases in immigration. The impacts of immigration on culture, corruption, and violence are all small. This is particularly difficult to measure in the case of culture as the state of the academic literature on this point is weak and unpersuasive for a whole host of methodological reasons, so perhaps there is another method that could reverse our conclusions, but I’m doubtful.

One of the chapters in my book is about how immigration has affected economic institutions in the United States over the long run. In the course of conducting this research, I made a figure of unionization rates and immigration over time that shows a striking inverse relationship (Figure 1). In our book, we theorize that immigrants reduce unionization. Unions are and have been an important force for progressive policy changes in the United States. Workers who join a union become more progressive, more skeptical of the benefits of market, and more anti-trade. Part of the effect of joining a union can be explained by self-selection (people who are already anti-market are more likely to join) but most of the shift in opinion can be explained by changes in opinion after becoming a member. Thus, we argue that immigrants result in better and more free economic institutions by undermining labor unions that typically push for the opposite.

There is much research on how immigrants affect unionization, but much of it analyzed narrower questions and not the political or policy impact. After our book was published, I worked with Town Oh and Artem Samiahulin to see how immigrants affect unionization in the United States as a first step in seeing whether immigrants affected unions enough to change national policy in a better direction.

We published a working paper recently on the first step in this endeavor. Our method was to employ the national skill-cell approach that George Borjas and others used to investigate how immigrants affect wages. The national skill-cell method uses regression analysis to estimate how immigrants with a certain level of education and experience in the labor market affect wages of American workers with the same level of education and experience. This is called the national skill-cell method because each level of education and experience produces a cell for natives and for immigrants on the national level. The benefit of this method is that it allows for directly estimating how immigrants compete with native-born Americans who have the same level of education and experience across the entire country. This is important because many workers don’t compete against other workers – tomato pickers don’t compete with astrophysicists, for instance. Thus, other methods may miss how immigrants affect labor markets. Labor economists who study immigration use this method to see how substitutable immigrant workers impact the wages of native-born American workers. Our insight was to apply the national skill-cell method to see how a change in the number of immigrants in each cell affected unionization rates for Americans rather than wages.

We found that immigration reduced union density by 5.7 percentage points between 1980 and 2020, which accounted for 29.7 percent of the overall decline in union density during that period. This effect was concentrated in the private sector and for male workers with a smaller effect for female workers and no effect on public sector unionization. We found this happens because immigrants have a lower preference for unionization and because immigrants increase diversity in the workforce that, in turn, decreases solidarity among workers and raises the transaction costs of forming unions. Friedrich Engels, communist theorizer and co-author with Karl Marx,

[W]rote that immigrants in the United States ‘are divided into different nationalities and understand neither one another nor, for the most part, the language of the country.’[1] Furthermore, the American ‘bourgeoisie knows … how to play off one nationality against the other: Jews, Italians, Bohemians, etc., against Germans and Irish, and each one against the other.’[2] Engels even went to far as to argue that open immigration will delay the socialist revolution for a long time as the American bourgeoisie understood that “‘there will be plenty more, and more than we want, of these damned Dutchmen, Irishmen, Italians, Jews and Hungarians’; and, to cap it all, John Chinaman stands in the background.” [3]

Our working paper on how immigrants affect unionization is the first step in investigating whether immigrants have a positive institutional effect on economic freedom by undermining labor unions. Of course, it’s just a working paper at this point – which is essentially a rough draft we posted to get comments, criticisms, and other feedback from experts. Perhaps my co-authors and I committed errors or oversights that would affect our findings – please let us know if you find some.

Here are other potential problems we need to consider that you, dear reader, could help with:

1. Perhaps unions reduce immigration rather than immigration reducing unions. When unions are strong, they successfully lobby and vote to reduce legal immigration, but when they weaken then opposite interests in favor of immigration liberalization gain ascendancy.
2. The national skill-cell method may be appropriate for estimating the impact of immigrants on wages, but not for estimating the impact of immigration on unionization.
3. Quasi-natural experiments based on the Mariel Boatlift or others may reveal more about how immigrants affect unions than a national skill-cell approach.
4. Perhaps we should have looked at occupations rather than skill-cells.
5. Other problems.

On June 6, the Government Accountability Office (GAO) issued their latest report on operations at internal checkpoints operated by Customs and Border Protection (CBP), previously requested by Senators Pat Leahy (D‑VT), Patty Murray (D‑WA), Gary Peters (D‑MI) and Representative Bennie Thompson (D‑MS). Among the key findings:

• About 75 percent (12,194) of U.S. citizen drug seizure events involved marijuana only. About half of checkpoint events in which Border Patrol seized drugs from U.S. citizens (8,098 of 16,315) included the seizure of a personal use quantity of marijuana and no other drugs. Of particular note, CBP officials told GAO investigators that U.S. Attorney’s offices in their sector generally do not prosecute people for possessing personal use quantities of marijuana. (p. 27)

So CBP agents are making stops and seizures of minuscule amounts of marijuana in order to tout the “achievement” to their superiors and the public. And 91 percent of the time, those drug “busts” involved U.S. citizens. (p. 25)

Other GAO findings:

Officials also said that some sectors may prioritize seizing vehicles as a punitive consequence for drug possession or smuggling, for example, while other sectors may not. (p. 29)

Implication: get stopped with a dime-bag of “weed” and CBP agents might seize your car to make “an example” of you, especially if you live in or near El Centro, Laredo, or the Rio Grande Valley in Texas.

And CBP’s data collection on checkpoint encounters? A bureaucratic train wreck, according to GAO:

In our prior work, we found issues with the reliability of Border Patrol’s data on checkpoint activity, and in this review we found the agency continues to have them. 53 Specifically, we found that Border Patrol agents at checkpoints inconsistently documented certain checkpoint activity data, including data on apprehensions of smuggled people, canine assists with drug seizures, seizures of trace amounts of marijuana, non-drug property seizures, and attempted checkpoint circumventions. Further, agents did not consistently document the people involved in enforcement actions at checkpoints. Additionally, Border Patrol developed a tool to collect information about the outcomes of secondary inspections at checkpoints, but only about half of its checkpoints used the tool because it was not required, resulting in unreliable data on the outcomes of secondary inspections. (pp. 29–30)

In other words, if you’re pulled over for a secondary inspection and CBP agents rough you up, it may or may not get documented. 

There are lots of other gems in this 95-page GAO report, but the overall takeaway is clear. CBP internal checkpoints remain constitutional rights violations stations, where taxpayer money and CBP personnel are squandered in a performative version of the “Drug War”–complete with punitive private property seizures and pointless arrests of American citizens.

The checkpoints should be defunded and the CBP agents manning them sent to the border where they belong, and where they will not be harassing American motorists just trying to get to their desired destinations.

Since this article was published, the State Department published immigrant visa refusals for employment-based immigrant visas for 2022, which show that the denial rate has plummeted. For 2022, just 945 were denied out of about 40,000 employer-sponsored EB‑2 and EB‑3 immigrant visas (half of which are primary applicants).

U.S. consulates deny a large majority (61 percent) of employer-sponsored immigrant visas for prospective legal permanent residents because it claims to have found a problem with their job offers. The denials reverse labor certifications and petitions approved by the Departments of Labor (DOL) and Homeland Security (DHS) and contrast with rare denials by DHS (4 percent) for workers applying for green cards while already inside the United States. Although this astounding denial rate has existed for decades, the State Department has never publicly explained it, and no one has previously reported on it.

It appears that the denials are so high partly because the department grants so little weight to earlier approvals by DOL and DHS. The much greater difficulty in obtaining a green card abroad has important consequences for U.S. immigration. It encourages many immigrants to apply for easier-to-obtain temporary visas, which unnecessarily uses limited cap spots under those programs, while others may give up on legal immigration and seek to enter illegally.

Legal immigrants to the United States have two ways to receive a green card (denoting legal permanent residence). The first way is to obtain an immigrant visa from the State Department authorizing travel to the United States at a U.S. consulate or embassy abroad. The other approach is to adjust from temporary to permanent status in the United States. Employer-sponsored immigrants usually obtain a temporary work visa and only then proceed through the employer-sponsored green card adjustment of status process in the United States.

In 2021, 161,451 employer-sponsored immigrants adjusted status in the United States, while just 15,026 (9 percent) received immigrant visas abroad. The ease of obtaining temporary work visas over difficult immigrant visas certainly contributes to this huge disparity. Employer-sponsored green cards typically require a permanent labor certification from the DOL, a process that currently takes more than 500 days to complete at great expense and risk. Then employers submit a petition to DHS requesting approval for the worker to apply, either domestically or abroad.

Since the green card or immigrant visa application is the final step and follows vetting by two different departments, denials should be rare, and they are for workers in the United States. DHS denied just 4 percent of employer-sponsored immigrants seeking adjustment of status to permanent residence in 2021. But it’s a completely different story at consulates abroad. The State Department does not report the total denial rate for employer-sponsored immigrants under every ground of ineligibility. It only reports denials under the labor certification ground of ineligibility. The labor certification ground only applies to employer-sponsored immigrants in the EB‑2 and EB‑3 categories (which excludes the EB‑1 category that has a lesser number of outstanding researchers, executives, and people with extraordinary ability). Immigrants are only denied under this ground if the State Department claims to have found a problem with their job offers.

Figure 1 shows the number of immigrant visa approvals and labor certification denials for EB‑2 and EB‑3 immigrants since 1992, when these categories were first implemented. It excludes denials that were eventually overturned. As it shows, denials shot up in 1995 and stayed extraordinarily high through the present. Another significant spike occurred in the 2000s when denials eventually reached an all-time high of 79 percent in 2009. It has come down somewhat since then, but both in 2019 and 2020, 61 percent of applicants were denied. These denials occurred because the State Department claimed to have found a problem with their job offer. If all the different grounds for denial were included—such as misrepresentation, public charge, and criminal bars—the denial rate would be even higher.

The contrast between processing abroad and the processing domestically is stark. Since 2008, about 8 percent of employer-sponsored immigrants were denied while adjusting status. Meanwhile, workers abroad were about 8 times more likely to be denied. The average denial rate abroad was 63 percent. The domestic statistics include the EB‑1 category, which includes some very prominent individuals, but these applicants are only a minority of the total and would not explain the difference. In any case, the domestic statistics include all grounds for a denial, not merely because of a problem with the job offer, so the low domestic denial rate would be even lower if these other grounds could be set aside. Unfortunately, DHS does not record the grounds for denial in any electronic way, so it cannot produce those statistics.

The overall immigrant visa denial rate (which also includes family and diversity lottery programs) has averaged about 14 percent over the last decade, far below the denial rate for immigrants sponsored by employers. It is extremely difficult to maintain a denial rate of this magnitude because applicants adapt to improve their applications rather than throw away their money on a denial. Every person who applies for an employer-sponsored immigrant visa has already navigated two difficult processes with the DOL and DHS and is highly motivated to receive an approval, particularly since they are abroad.

It’s not possible to say exactly why these denials are taking place. The State Department does not list the specific reasons for rejecting DOL’s labor certification nor does it provide a breakdown of denials by consulate or nationality or in any other way. Some problems could show up at the consulate that DHS or DOL may have initially missed. The petitioner may have failed to disclose a familial relationship with the immigrant as DOL requires or perhaps the petition claimed that the immigrant could speak English very well, but during the immigrant visa interview, the applicant struggled to communicate. But these issues could easily come up domestically during an adjustment of status as well, and there is no reason to suspect that they would constitute a majority of all cases.

I reached out to a few people who might know why this is happening, and one former consular officer told me:

The negative attitude toward DOL and [DHS] adjudicators among [consular officers] is pretty endemic to the foreign service. I’ve had too many conversations with fellow [consular officers] where I’ve reminded people that the starting point should be that those agencies are doing their jobs and it is in most cases a waste of time to re-adjudicate or second guess. This is backed up in the [Foreign Affairs Manual] in certain sections, but not all. Instead, the starting point is that those agencies are “just approving everyone” without meaningful review, therefore State has to save the world by using its unique ability to personally interview the applicant (who, in any case, is not the best source of evidence for the petitioner’s intent).

Another former consular officer with 15 years of experience gave a more specific reason:

the relative high denial rate and low overcome rate on these [immigrant visas] reflects the perception on the part of many [immigrant visa] units that the labor certification process, as administered by DOL and reviewed by [DHS], is deeply flawed and being abused by some employers and employees. Consular personnel dealing with [immigrant visa] cases are applying a much more narrow interpretation of whether or not the applicant reasonably intends to work for the employer.

These comments are extremely concerning because they express a deep-seated hostility toward the DOL-DHS employer-sponsored process, questioning the legitimacy of all approvals. One reason that the Foreign Affairs Manual lists as grounds to doubt whether an immigrant actually intends to actually work the job listed on the labor certification is particularly worrying: “the applicant has never worked before or has never worked in the same type of business as that of the prospective employment.” Besides the employer, both DOL and DHS have already reviewed applicants’ qualifications and approved them. The State Department should not be denying people for seeking different types of jobs than their jobs in their home countries.

If employer sponsorship were so rife with fraud that the State Department needed to deny a large majority of employer-sponsored immigrant visas, surely the nonimmigrant visa denial rates would be similar. But they are not anywhere close nor have they ever been. During the mid-2000s, the H‑2B denial rate reached a record high of 28 percent, but has since fallen to 6 percent, and most of these denials are based on concerns about visa overstays, which are not an issue for green card holders. Nonetheless, as expected, employers and workers adjusted, and the denial rate fell anyway. Yet the last time the EB‑2/EB‑3 immigrant visa denial rate was as low as the H‑2B record high was 1994 (Figure 3). This also means that the State Department cannot explain the lower domestic green card denial rate by claiming that the nonimmigrant visa denials weed out the fraud.

The upshot is that these denials simply should not be happening at this astounding rate. Two different agencies have already vetted these workers, yet the State Department is reversing their decisions. All three departments involved in employer-sponsored system blatantly discriminate against permanent immigration system, adopting more favorable, streamlined rules for the temporary system, and that’s bad for everyone. The agencies are directly incentivizing employers and immigrants to unnecessarily use the temporary work visa system. This not only delays the immigrant’s receipt of a green card. It also takes a temporary visa cap spot away from some worker for whom a temporary path makes more sense. The State Department’s blockade on employer-sponsored immigrant visas should end.

The Department of Homeland Security (DHS) will finalize a rule this week that increases the H‑2B summer visa cap by 35,000. The rule comes 12 weeks after employers filled the cap and 7 weeks after H‑2B workers were supposed to arrive. Although the decision to increase the cap by a record amount is very positive, and the increase follows our recommendation and cites much the same evidence for the increase, DHS is simply choosing not to release nearly half of the 66,792 visas Congress authorized, and its delay in issuing the rule means that nearly half the season will be wasted before any workers arrive.

Although DHS has repeatedly wasted H‑2B visas authorized by Congress, the country is now facing the most extreme labor shortage in living memory. It is impossible to imagine another year having a stronger case for using all the H‑2B visas. As I’ve explained here, demand for H‑2B visas, job openings in the most common H‑2B industry, the unemployment rate in the most common H‑2B occupation, wages in that occupation, and the certification rate for H‑2B jobs are all setting records.

Yet DHS not only provides no explanation at all for its decisions 1) to delay issuing the rule or 2) to waste the visas—it barely acknowledges that it did delay or will waste visas. The law grants DHS the authority to raise the H‑2B cap by the highest number of returning workers exempted from the cap by Congress in prior years. In a footnote, DHS explains that there are two apparently equally valid approaches to decide how many returning workers were exempted:

The highest number of returning workers … was 64,716, which represents the number of beneficiaries covered by H‑2B returning worker petitions that were approved for FY 2007. DHS also considered using an alternative approach, under which DHS measured the number of H‑2B returning workers admitted at the ports of entry (66,792 for FY 2007)

But then—without explaining what number it is deciding to use—DHS simply asserts that:

The highest number of H‑2B returning workers approved was 64,716 in FY 2007. In setting the number of additional H‑2B visas to be made available during the second half of FY 2022, DHS considered this number, overall indications of increased need, and the availability of U.S. workers, as discussed below. On the basis of these considerations, DHS determined that it would be appropriate to make available up to 35,000 additional visas.

So DHS arbitrarily selected the lower of two equally valid numbers, considered providing that number, but then went with a much lower number because of “considerations.” What were those considerations? Later, DHS explains:

[This number] reflects a balancing of a number of factors including the demand for H‑2B visas for the second half of FY 2022; current economic conditions; the general trend of increased demand for H‑2B visas from FY 2017 to FY 2021; H‑2B returning worker data; the amount of time remaining for employers to hire and obtain H‑2B workers in the fiscal year; concerns from Congress, state and local elected officials, U.S. businesses, chambers of commerce, and employer organizations expressing a need for additional H‑2B workers; and the objectives of E.O. 14010 [instructing DHS to enhance access to visa programs for nationals of the Northern Central American countries.]

These considerations all seem to support using all the H‑2B visas. None obviously justify a lower cap. The closest might be the “amount of time remaining for employer to hire and obtain H‑2B workers”—which is basically saying “because we wasted so much of the year, we don’t think H‑2B employers will use the visas, so we’re going to preemptively trash them.” This is an astonishing admission, but more importantly, DHS is not required to guess how many visas will get used. According to the bill Congress passed, DHS can set the cap high enough to assure that the “needs of American businesses” are met. It doesn’t need to guess the exact need.

The rule is 141 pages, and it mentions high job openings, low unemployment rates, high demand from employers, and much else, but it includes absolutely nothing at all that would explain its decision not to make available all H‑2B visas. In fact, the rule requires H‑2B employers to prove “permanent and severe financial loss” if they don’t get workers. DHS is effectively saying that it is willing to impose “permanent and severe financial loss” on employers rather than issue all these visas.

DHS is also requiring employers to re-advertise these positions to U.S. workers (who already turned them down and have literally millions of other, better options for permanent, not seasonal, employment). Its reason for requiring employers to re-recruit U.S. workers is that the Department of Labor’s labor certifications have become “stale” since it is now 7 weeks after the workers were supposed to arrive. In other words, DHS is using its own delay in issuing the rule to impose more costs on U.S. employers. This may be the closest we will ever get to an explanation for the delay.

The Biden administration had a full year to fix the process for the H‑2B supplemental cap, and it failed to do so. The rule was as late and as arbitrary as last year’s rule (see Table 1). Congress must fix this inexcusable mess. It should simply exempt returning workers from the H‑2B cap as it did in 2005, 2006, 2007, and 2016. A bipartisan bill—The H‑2B Returning Worker Exemption Act—would do just that. But it should at a minimum require the administration to make its determinations within 1 week of Congress authorizing an increase. There is just no reason to delay.

Note: DHS previously increased the H‑2B cap for FY 2022 by 20,000 for the first half of the year. Of this amount, 17,185 were issued. If these numbers were counted as reducing the 66,792, DHS would be wasting “only” 15,607 visas as opposed to 32,792. But as I previously explained, the authority for the 1st half increase came from an extension of the FY 2021 authority under which only 22,000 were used, leaving up to at least 44,792 visas available. It was possible to interpret this authority (as DHS appeared to) as permitting it to use the authority up to the maximum of 66,792. DHS chose to only offer 20,000.

DHS does not directly discuss this issue in the new rule, but in the language quoted above, DHS seems to adopt the somewhat lower 64,716 as the maximum permitted since it considered that number as the amount it would increase, which means it is not counting the 20,000 toward the maximum permitted. This is the correct interpretation. The limiting language in the statute (“not more than the highest number of H‑2B returning workers”) only caps the use of specific authority provided in that bill. It does not apply to other authorities outside of that bill. Besides the FY 2021 authority, there are also some other minor exemptions to the H‑2B cap that are not subject to that limiting language. 

A recent Tucker Carlson segment argued that the increase of illegal immigrants coming across the border in recent years caused the rise in homicides in Houston, Texas. Using crime data given to me by the Texas Department of Public Safety that identifies arrests by the immigration status of the arrestee as well as county, crime, date, and other information, I was able to check Tucker’s claim.

Here, I focus on homicide arrests (not individuals arrested, but total arrests) by immigration status in Harris County, Texas by month. Arrests are used because they are closer to the date of the actual homicide than convictions, so if an increase in illegal immigrants caused more crime then we’d see it in arrests before convictions. I have previously used these data to investigate illegal immigrant criminality in Texas. Unfortunately, I do not have data on homicide arrests by city in Texas, but Harris County is the county that contains Houston. I also incorporated CDC WONDER data on mortality to identify homicides on the county level for Harris County, Texas.

Figure 1 shows that homicides are up overall in Harris County, that arrests for native-born Americans are also up, and that arrests for illegal immigrants are flat.

First, homicides are up substantially in Harris County. The number of homicides climbed from 421 in 2019 to 563 in 2020. CDC WONDER data for 2021 only run through September, but there were already 97 more homicides by that point in 2021 than there were at the same point in 2020. There was a slight upward trend from 2013 through Summer 2019, but the number of homicides started to increase and then shot up dramatically in the first half of 2020.

Second, arrests of illegal immigrants for homicide are steady in Harris County from January 2013 to September 2021 with an average of about 1.5 per month. Since January 2020, there were only 1.2 arrests of illegal immigrants for homicide per month in Harris County. From January 2013 to the end of 2021, illegal immigrants accounted for just over 10 percent of Harris County’s population and 7.6 percent of arrests for homicide. It’s unlikely that illegal immigrant learned how to commit homicide and not get arrested.

Third, arrests of native-born Americans for homicides have skyrocketed. In 2019, there was a monthly average of 17.5 arrests of native-born Americans for homicide which climbed to 23.6 in 2020 and averaged 30.1 for the first 9 months of 2021. Since January of 2020, there was an average of 26 arrests of native-born Americans for homicide in Harris County.

Fourth, the number of arrests of illegal immigrants for homicide is tiny so it might be difficult to say anything other than there aren’t many arrests of illegal immigrants for homicide. But doesn’t that show that Tucker Carlson misidentified the cause of the rise in homicides in Houston?

Whatever the cause of the increase in homicides in Houston, it appears to be entirely driven by native-born Americans. Illegal immigrants are substantially less likely to be arrested for homicide than native-born Americans, especially since the increase in homicide in Harris County.