House Democrats introduced the American Dream and Promise Act (H.R. 6) yesterday. The primary focus on the legislation—like the Dream Act in the Senate—is to provide a path to citizenship for immigrants brought to the country as minors. Unlike the Dream Act and last Congress’s version of H.R. 6, however, this year’s version extends the path to citizenship to “legal dreamers,” foreign-born children of temporary workers who can grow up in this country in temporary status that they lose at age 21.

Along with many of the legal dreamers themselves, I’ve long advocated for this change, and it will have major implications not only for the kids, but for their parents and the entire employment-based system if this bill becomes law.

Related Study

Deregulating Legal Immigration: A Blueprint for Agency Action

President Trump went to unprecedented lengths to restrict legal immigration in his one term—but the system was overly burdensome and expensive long before him. President-elect Joe Biden will have the opportunity to reverse these actions and deregulate this system. Here is a compendium of 30 proposals by 15 authors—including several of America’s leading immigration law experts—to help the Biden administration operate the immigration system as openly and efficiently as the law allows.

Read the Reforms

Previously, H.R. 6 had only allowed someone who was “inadmissible or deportable” to qualify unless they were in Temporary Protected Status (TPS), a temporary status mostly for immigrants without any other legal status. But the new American Dream and Promise Act greatly reduces this unfair discrimination against legal residents. The new language will allow anyone who “is the son or daughter of an alien admitted as a nonimmigrant” under the E‑1, E‑2, H‑1B, and L‑1 temporary work visa programs.

The H‑1B program is for skilled employees of U.S. businesses working in specialty occupations. They must have college degrees. Their children are eligible to come with them and grow up in the United States in H‑4 dependent status. Their employers can sponsor them for green cards. On their 21st birthday, however, they lose H‑4 status and their place in the green card line and the have to self-deport or find another status such as a student visa.

The L‑1 program is for skilled intracompany transfers by multinational companies, and they also may bring their minor children. L‑1 and H‑1B visa holders awaiting green cards are mainly from India. I have estimated that about 100,000 currently in line will age out and lose their chance to become citizens through their parent’s employer’s petition. Overall, there are more than 255,000 dependents awaiting employment-based green cards.

The E programs are for “treaty traders” who are engaging in business operations in the United States, and many are business owners. As Angelo Paparelli details in our “Deregulating Immigration” paper, the Department of Labor makes it very difficult or impossible for entrepreneurs to self-sponsor themselves for green cards, so they can spend decades here with no chance to become permanent residents or U.S. citizens. Their children also lose status at their 21st birthday.

Legal dreamers would still have to meet the other requirements in the bill: continuous presence in the United States since January 1, 2021, under the age of 18 when first coming to the United States and continuous presence since then, graduated from a U.S. high school or is enrolled in a U.S. high school or college, and has not committed certain crimes. While legal dreamers often travel internationally, the bill allows for breaks of up to 90 days and 180 days cumulatively. It also excludes any travel authorized by the Department of Homeland Security (DHS)—which, if the government adopts a reasonable interpretation, should include all travel under H‑4 or other lawful status provided by DHS. Those who have already aged out and were forced to leave the country would also be allowed to apply for a green card from abroad if they departed the country on or after January 20, 2017 if they had been physically present for at least four years.

According to the plain text, the applicant’s parent does not need to currently be in H‑1B, L‑1, or E statuses. Many legal dreamers’ parents have left the United States or received their green cards after the child aged out. The text only states that the applicants must currently be the son or daughter of someone “admitted” under those classifications, but the language doesn’t say either “who is” or “who was” admitted. Since it doesn’t specify, it should include both groups (that is, anyone ever admitted under those classifications) since, in order to exclude one or the other, the language would need to explicitly state so. 

While it should include the vast majority of dreamers, it’s worth noting that the bill does leave out some legal dreamers who are children of workers under other temporary statuses, such Os for those with extraordinary ability, Fs for student workers and graduates of U.S. universities working under Curricular Practical Training and Optional Practical Training programs, Ps for professional athletes, Js for various classifications of exchange program workers, Rs for religious workers, and TN workers who work in the same jobs as H‑1B workers but who have citizenship in Canada and Mexico. That’s an oversight that hopefully could be corrected by the House Rules Committee or the Senate.

Nonetheless, the American Dream and Promise Act has greatly improved from last Congress by including the large majority of legal dreamers in the United States. By allowing them to obtain U.S. citizenship, they will eventually be able to sponsor their parents for green cards outside of the hopelessly backlogged employment-based system. Freeing both the parents and kids from the needlessly bureaucratic and controlled temporary statuses would hold great economic benefits for this country.

Beth Bailey has a provocatively titled and incomplete piece at The Federalist about illegal immigration and crime. Bailey laments the lack of data on illegal immigration and crime while linking to some of our research that estimates illegal immigrant incarceration rates and ignoring excellent criminal conviction and arrest data from Texas that show remarkably low rates of criminality. Bailey does make an excellent point: There aren’t enough criminal data on illegal immigrants.

There are many reasons to collect more and better data on immigration in general and illegal immigration specifically. First and foremost, the truth is valuable. Second, many of the claims made by different sides in the immigration debate are empirical. Wise policy decisions require several inputs and one of them is accurate data and information. Not too much data, but enough to answer questions and make informed policy decisions.

Third, there are many conspiracy theories about immigration partly driven by a paucity of information. Some pro-immigration advocates are worried that more data transparency will worsen public perceptions of immigrants and they have been critical of reports that reveal uncomfortable truths, but they have it exactly backwards. More information can help dispel persistent myths because the reality is almost always less bad than conspiracy theorists imagine. These justifications apply to legal immigration as much as they apply to illegal immigration.

Before listing suggestions for data that should be made available or created, many of which come from the mind of Austin Kocher from TRAC (we had a few productive email exchanges about this topic), it’s important to emphasize that data should be transparent no matter which side of the immigration debate it helps. The Trump administration claimed that it was interested in immigration data transparency but only if it served its policy objectives, so the administration released poorly explained reports about immigrant incarceration focused entirely on the federal prison system that added more confusion than clarity. The Biden administration should just release all the data that it has, preferably in microdata form, along with codebooks to explain the variables while letting policy analysts and others crunch the numbers.

Below are suggestions for which data the Biden administration should release or begin to collect to increase data transparency to better inform the public and policy makers. Much of the information requested below can be released in ways that protect personal privacy. Just to repeat, many of these come from Austin Kocher and I don’t want to take credit for all of them.

1. Illegal immigrant incarceration, criminal conviction, and arrest numbers by state, county, crime, and year. Texas already makes this data available and it would merely require states keeping the results from identity checks made during arrests and convictions.
2. The number of E‑Verify queries and outcomes per month by location of the new hire. There is evidence that businesses in states with E‑Verify mandates do not follow the law, but that could partly be explained by the way the system counts locations. Currently, many staffing firms manage E‑Verify for employers and run the checks offsite. As a result, an Arizona employer who hires employees through a staffing firm based on California might have all of their new hires run through E‑Verify but the queries would be reported in the physical location of the staffing firm rather than the employer. In macro data, it may look like many employers are not running new hires through Arizona’s E‑Verify but they are being E‑Verified. It’s time to resolve this puzzle.
3. The number of corruption charges, arrests, and convictions for every federal law enforcement agency. This is especially important as related data indicate that Border Patrol agents are likely the most corrupt federal law enforcement officers.
4. The number of complaints, investigations, and their outcomes for all Department of Homeland Security employees.
5. Detailed immigration histories of foreign-born people convicted of terrorism offenses (not terrorism-related offenses). The immigration histories of terrorists are haphazardly released anyway, it might as well be done systematically. It certainly would have saved me a ton of time.
6. The number of American citizens detained by Immigration and Customs Enforcement (ICE) or erroneously removed from the United States. If the citizen is foreign-born then their immigration history should also be available. Much of this information is already in the public but it should be released systematically.
7. Annual counts of the number of H‑1B visa holders in the United States, not just estimates.
8. Annual estimates of the illegal immigrant population updated as soon as American Community Survey data are available. The last such update was for 2015. Pew, the Center for Migration Studies, and others publish estimates, but government data are more broadly believable.
9. Espionage and espionage-related convictions by immigration status, country of origin, and other important demographic and biographical details. This information is vitally important as fears of Chinese espionage are driving much of the immigration debate. Releasing this data would also have saved me a lot of time.
10. The number of applications and the outcomes of applications for discretionary forms of relief to ICE.
11. All information recorded on I‑213 forms, which record information on deportable and inadmissible aliens.
12. Data from the consular processing of visas, including the number of applications at each consulate for each visa as well as the outcomes, rejections, and reasons for rejections.
13. Data on the number of investigations started and the outcomes of those investigations for every type of visa fraud for all visas.
14. The numbers of deaths and injuries of migrant workers on each work visa as well as information about the employers where they work.
15. Executive Office for Immigration Review should start to publish its annual reports again with new quality control measures to make sure the data are reasonably accurate.
16. Proper digitization of all alien A‑Files.

Making the above data available would reduce the number of Freedom of Information Act (FOIA) requests, reduce the scale and scope of conspiracies surrounding immigration, and allow attorneys, advocates, researchers, and others to discover facts about immigration without filing FOIA requests. President Biden has committed his administration to identifying and fixing the root causes of migration, but those won’t be fixed with big government programs or foreign aid. They will only be resolved when American voters are satisfied. Reducing the scope and scale of conspiracy theories as much data as possible will do more than foreign aid to strike at the root causes of immigration and our terrible policy response to it. Data transparency is the first step in reducing immigration-related conspiracy theories.

Yesterday, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas updated the press on the Biden administration’s efforts to “replace the cruelty of the past administration,” especially the Trump administration’s “Remain in Mexico” program where asylum seekers were stuck in Mexico for months. Yet in practically the same breath, Mayorkas articulated an even worse policy: Wait in Mexico.

Of asylum seekers, he said, “They need to wait. But they need to wait with a particular goal in mind. We are not saying don’t come. We are saying don’t come now.” He clarified that if they don’t wait, DHS will use the Center for Disease Control’s (CDC’s) “Title 42 authorities and return them to Mexico, and we have done that.” If Remain in Mexico was cruel, is “Wait in Mexico” better? Definitely not.

Under the Trump administration’s Remain in Mexico policy known as the Migrant Protection Protocols (MPP), immigrants who crossed were returned to Mexico to await a hearing date north of the border. At a final hearing after months or years living homeless in Tijuana, Juarez, or Matamoras, an immigration judge could at least theoretically grant them asylum and entry into the United States.

Under the Biden administration’s Wait in Mexico policy, immigrants and families dumped back into Mexico would not even receive a hearing date to await. They do not enter the asylum process at all. All they get from the Biden administration—beyond a push in the back on their way out the door—is the vague promise that at some undefined future time this administration will do… something to make things better.

Because DHS is hardly accepting in any of those returned under Remain in Mexico (despite celebrating ending it), the Wait in Mexico returnees are right now sitting with them in literally the same “squalor” that Biden denounced during his campaign. Biden insisted that he opposed making anyone wait for asylum in another country, and yet here is his DHS secretary announcing a worse version of the same idea.

Mayorkas says that DHS is “obligated” to expel asylum seekers under the Wait in Mexico program because a Centers for Disease Control (CDC) declaration that found that anyone crossing without documents posed a threat to public health during the COVID-19 pandemic. Yet the CDC’s own health experts rejected the order, and the only reason the CDC signed the order is because the Trump White House forced the agency to do so.

“We were forced to do it,” one former official who worked on public health told CBS News. “We exhausted all of the options. We delayed. We slow-rolled. We flat out said there’s not a public health justification. We said no. And then we were told, ‘Do it.’ So, at the end of the day, your options are to resign in protest or sign it. And if you resign in protest, the next person is just going to do it anyways.”

More than seven dozen public health experts at leading public health schools, medical schools, hospitals and other institutions wrote a letter in January to the Biden administration that denounced the purported health basis for the expulsions. “Imposing restrictions on asylum seekers and other migrants based on immigration status is discriminatory and has no scientific basis as a public health measure,” they wrote.

They noted that while the CDC order claims that all asylum seekers would need to be held in “congregate” settings where COVID-19 could spread, the fact is that DHS has the authority to process asylum seekers without detaining them. The health experts told DHS that the science supports alternative procedures, including testing, distancing, masking, and releasing people. DHS could also move more of its intake procedures outdoors.

Nonetheless, the Biden CDC last month said in a regulatory notice that the CDC expulsion order was based on the “most current information” regarding COVID-19. That wasn’t correct at the time, and it certainly isn’t correct now.

DHS Secretary Mayorkas is bragging about its end to Remain in Mexico—which hasn’t ended and will take months to end at the current pace that immigrants are being admitted—yet before that policy is even over, it is instituting a Wait in Mexico program that has all the threats and disadvantages of Remain in Mexico with none of the upsides.

President Biden and Mexican President Andres Manuel Lopez Obrador (AMLO) will be speaking today about immigration and other topics. AMLO is expected to propose that the United States and Mexico partner to create a new guest worker visa program to allow Mexicans and Central Americans to lawfully work in the United States. According to reports, AMLO proposes that such a program should be 600,000 to 800,000 annually.

This proposed program would be based on the Bracero program, according to AMLO. Bracero was the nickname for a temporary guest worker visa program that allowed Mexican farm workers to work temporarily in the United States. The Bracero program began with a bilateral agreement between the United States and Mexico in 1942 as the U.S. draft and war mobilization greatly reduced the supply of labor for lower marginal product occupations like agriculture. It ended in 1964 after lobbying from labor unions.

As a bilateral agreement, the Mexican government regulated emigration on its side and the United States government regulated the in-migration on its side. Both sides regulated the migrant’s wages, duration of employment, age of workers, health care, and transportation from Mexico to U.S. farms. Employers sold transportation, housing, and meals to the migrants for a low price. Employers also had to deduct ten percent of the migrant’s wages from their paychecks and deposit them in an account that would be turned over to migrants once they returned to Mexico. The deduction ensured compliance with the rules of the program and at the insistence of the Mexican government so the migrants would return.

The Bracero program did not limit the number of Mexican migratory workers so long as the government’s conditions were met. As a result, nearly five million Mexican workers used the Bracero program from 1942, when the first group of 500 braceros arrived at a farm in California until the program’s cancellation in 1964. During the early phase of the program during World War 2, the United States government acted as the arbiter and distributor of the Mexican workers to American farms – heavily subsidizing the movement and not requiring total reimbursement for government expenses on medical and security screenings.

The Bracero program became more rigid and regulated in the late 1940s. As a result, Mexican illegal immigrants began to enter in large numbers to work on American farms after the war. By 1952, there were approximately 2 million Mexican illegal immigrant workers in the United States. In 1951 and 1952, the U.S. government began two major reforms to the Bracero program: The first was to make sure that American farmers could hire as many Bracero guest workers as they demanded. The second was to make sure that any Mexican workers who wanted to work on U.S. farms were able to do so legally.

To the credit of the Border Patrol and Immigration and Naturalization Service (INS) at the time, they listened to the complaints of employers and tried to design their enforcement and visa programs to work with economics rather than against it. INS Commissioner Joseph Swing noted that in the late 1940s and early 1950s, employers in the Rio Grande Valley referred to the Border Patrol as a “Gestapo outfit” that wrenched their willing illegal workers away from employment. Swing realized that he would have to enlist the cooperation of employers and migrants to solve the problem. In other words, he would have to address both the supply of illegal immigrant workers and the demand for them.

Swing said, “If there is any employer who cannot get legal labor all he has to do is let either the Department of Labor or Immigration know and we will see that he gets it … I am quite emphatic about this because I know I am going to run into some opposition in Southern Texas.” And he followed through on his promises. The Bracero program’s flexibility increased over time as the Border Patrol and INS realized that the Bracero program was an indispensable component of reducing illegal immigration by providing a lawful means of migration to substitute for illegal immigration.

The Bracero program was astonishingly successful at reducing illegal immigration. The number of apprehensions of illegal immigrants, a proxy measurement for the illegal immigrant flow, dropped consistently as the number of guest worker visas increased (Figure 1). Illegal immigration rose and fell over that time in response to economic conditions and enforcement on both sides of the border, but the number of visas available did more than any other factor to reduce the flow. During the mid-1950s, when the number of Bracero guest worker visas increased the most, each new visa displaced about three illegal immigrant entries by pushing them into the legal market. Shortly after the Bracero program ended in 1964, the number of illegal immigrants increased rapidly because American employers still demanded their services.

In addition to granting Bracero guest worker visas to new Mexican migrants, the INS and Border Patrol also gave them to illegal Mexican immigrants already present in the United States. Border Patrol and INS agents would often arrest illegal immigrant workers and give them a “spot legalization” at their employment sites, recording their identity information and handing them a work permit. Other times, the officers would arrest the illegal immigrants, drive him down to the border, and make them take one step across the border and come back in as a legal bracero worker, a process referred to as “a walk-around the statute.” Both spot legalizations and walk-around the statute were part of the euphemistically labeled process of “drying out” the illegal immigrants by legalizing them, a reference to the then-common racist term “wetback” to describe illegal Mexican immigrants.

In combination with the legalization of Mexican workers and the increased and deregulated visa for new entries, the U.S. government also increased enforcement through Operation Wetback. That enforcement operation was designed to identify and deport illegal immigrants in combination with granting many of them Bracero work visas. The goal of increasing the number of visas and enforcement at the same time was to exchange illegal workers for legal workers, in Swing’s words. He achieved that goal. For example, farmers during the 1953 harvest in the Rio Grande Valley only employed 700 legal guest workers compared to 50,326 legal guest workers employed there in 1954. At every opportunity, Swing praised farmers and gave them credit for substituting legal Bracero workers for illegal immigrant workers, saying the “accomplishment of this task would have been impossible without the generous cooperation extended to the effort by ranchers, farmers, and growers.”

The combination of a legal migration pathway with consequences for breaking immigration laws incentivized Mexican migrants to come legally and for U.S. farmers to eschew the black market. As a result, the number of removals of illegal immigrants in 1955 was barely three percent of the 1954 numbers. Those who previously would have entered unlawfully instead signed up to become Braceros and farmers who would have earlier hired illegal immigrant workers only hired legal migrants.

The INS made low cost for migrants to get guest worker visas and used the Border Patrol to funnel illegal migrants and would-be illegal migrants into the legal system. The immigration agencies sometimes liberalized the system even beyond what Congress intended through the legalizations and granting of border crossing cards. Increased lawful migration, flexibility, and enforcement funneled migrant workers into the Bracero program and reduced the illegal immigrant population by an estimated 90 percent and cross border flows by 95 percent. The existence of a legal visa for lower skilled Mexican migrants was essential to the decrease in illegal immigration as the INS and Border Patrol understood at the time.

Problems with the Bracero Program and New Challenges Today

Creating a new Bracero program today would reduce illegal immigration, increase border security, and help grow the economy on both sides of the border. But the Bracero program also had some serious problems that should be fixed with the creation of a Bracero-inspired program today. The first problem is corruption. The Bracero program was managed by both the Mexican and U.S. governments. On the Mexican side, there were problems with corruption as some government employees demanded bribes from Mexican Braceros in exchange for being approved for a work permit. Many migrants were so incensed by this that they tried to get Bracero work permits on their own, leading to scenes where U.S. Border Patrol agents were helping Mexican migrants enter the United States while facing down the opposition of Mexican police and military personnel who were trying to stop them from emigrating.

The second problem is portability. Compared to today’s H‑2 visas, Braceros could move between employers easily. Still, any workers in a modern Bracero program must have as much portability as possible – preferably the same amount as native-born American workers. There are few serious violations in H‑2 visa programs today, but those violations that do occur would likely vanish if workers could switch employers without facing regulatory barriers or losing their lawful status. After all, the best defense against an abusive employer is the employee’s ability to switch jobs.

The third major problem with the Bracero program was that it was only for agricultural workers. That may have been sufficient in the 1950s, but it won’t be good enough today. Only about 4 percent of illegal immigrants work in agriculture today while 8 percent work in transportation, 14 percent in production and maintenance, 16 percent in construction, and about one-third in services. Thus, any new visa would have to funnel migrants to the jobs where they would actually work rather than just agriculture.

The fourth major problem is that the current H‑2 visa program is already very good at reducing illegal immigration from Mexico. The number of Mexican illegal immigrants is increasing since Title 42 closed the border and resulted in the immediate return of illegal immigrants to Mexico, but that will return back to pre-COVID numbers as soon as Title 42 is rescinded and the incentives faced by migrants return to normal. The major problem going forward is channeling Central Americans into the legal migration system by creating a visa for them. My colleague David Bier and I have proposed various ways to increase the number of visas for Central Americans without decreasing the number for Mexicans. AMLO wants more visas for Central Americans so they don’t travel illegally through Mexico anymore.

The fifth major problem is reciprocity. Not many Americans want to work in Mexico, but allowing them to on very easy and generous terms could convince some Americans that a new bilateral agreement based on the Bracero program is “fair.” Michelangelo Landgrave has researched the issue of migration reciprocity between the United States and Canada, with the finding that Americans support more Canadian immigration if there is reciprocity whereby Americans can also work in Canada. This approach should be incorporated into a bilateral agreement with Mexico that allows Americans to live, work, and invest in Mexico with very few legal barriers.

Everyone’s incentives are aligned to reduce illegal immigration by liberalizing immigration. Americans want to hire migrant workers, the Mexican government wants to make it easier for Central Americans to get U.S. work permits so they don’t cross Mexico illegally, and the end of the COVID border emergency would jumpstart Mexican temporary migration to its previously high levels. The only group with power that is not potentially interested is the Biden administration. The only major provision missing from President Biden’s U.S. Citizenship Act was a large and temporary guest worker visa program – let’s hope that was a temporary oversight.

It’s time for Democrats to bite the bullet, ignore complaints from their labor union allies, plug their ears to nativist complaints, and create a big temporary guest worker visa program to get control of the Mexican border. Enforcement alone will never do it, as the present situation shows. The border is practically closed and apprehensions are increasing. The only way that Biden can fix immigration is if American voters support him and they will only do that if they perceive the border to be under control. But they will only perceive the border to be under control if immigration is liberalized enough so that virtually all would-be illegal immigrants will start coming in legally. Thus, the Biden administration needs to bite the bullet and create a huge guest worker visa program for Central Americans and Mexicans to secure his pro-immigration legacy and create the necessary preconditions for sustainable reform.

Conclusion

It’s heartening that AMLO is asking the United States to create a new guest worker visa program. By allowing illegal immigrants to get work visas, by not punishing them or employers for coming forward, and by making work visas available to future migrants, almost all future and current illegal immigrants could be funneled into the legal market without a large increase in enforcement. This was the policy followed in the 1950s and it worked. With some tweaks today, a modern Bracero program could virtually end illegal immigration and increase border security without an increase in fencing, the number of Border Patrol agents, or other security improvements. The only question is whether the Biden administration wants to do it.

Last year, Congress authorized the Department of Homeland Security (DHS) to effectively double this year’s H‑2B visa cap for nonagricultural seasonal employers in landscaping, forestry, seafood, and other industries. Employer requests exceed the initial cap on February 12, but in over two weeks, DHS has announced no plans to release any additional visas. This failure compounds President Biden’s ongoing error of not rescinding Donald Trump’s H‑2B visa ban on some types of H‑2B workers.

Employers will need their workers by April 1, so the administration has barely one month to notify employers of the new process, employers to re-request workers including whatever new evidence DHS requires, the State Department to issue the visas, and the workers to arrive. By waiting this long, DHS is risking that employers will not receive their workers in time, disrupting important business operations during a time of economic recovery. The Department of Labor (DOL) Inspector General has found that H‑2B delays “have serious adverse effects on business owners and local economies.”

While President Trump justified his visa ban on certain H‑2B workers on protectionist economic grounds, the fact is that all H‑2B jobs are offered to U.S. workers for more than two months prior to the H‑2B workers receiving their visas. Only if no U.S. workers applied would the Department of Labor (DOL) certify the jobs as unfilled and available for H‑2B workers. As Figure 1 shows, H‑2B jobs are routinely not filled by U.S. workers, and in 2020, DOL certified a record percentage of jobs as unfilled: 93 percent.

In the top industries, the percentage of certified jobs was even higher. While there are many H‑2B occupations, the top three in 2020 were landscapers (46 percent of certified jobs), forestry workers (7 percent), and meat and seafood cutters and trimmers (7 percent). Among the top three industry-occupation combinations, the certification rate was even higher: 96–98 percent.

There is no economic justification for forcibly keeping these jobs unfilled. When immigrants quickly fill difficult-to-fill positions, they increase demand for other jobs elsewhere in the economy that U.S. workers are more likely to want. By quickly filling these jobs, immigrants grease the wheels of the economy, allowing production to resume much faster—which opens up more desirable jobs for Americans.

DHS should reject Trump’s primitive protectionist policies and focus on rapidly increasing economic growth, which would benefit everyone in the United States. From 2017 to 2019, the Trump administration failed to increase the H‑2B cap to the extent that Congress authorized it. The largest increase available is 64,716, and the largest increase allowed was only 30,000 in 2019, and in 2020, it failed to provide any visas.

There is no reason for the Biden administration to take this same limited approach. DHS should adopt these two recommendations:

1. Increase the H‑2B visa cap to the greatest extent possible to guarantee that no jobs go unfilled, costing the U.S. production and overall job growth. When Congress initially adopted this supplemental visa provision in 2017, it did not expect that the administration would cap it. It was supposed to be based on a “determination that the needs of American businesses cannot be satisfied in fiscal year 2021 with United States workers who are willing, qualified, and able to perform temporary nonagricultural labor,” which is already what the DOL certification shows.

2. Set aside up to 10,000 visas for Guatemalans, Hondurans, and Salvadorans, as a way to channel some workers into a legal alternative to illegal immigration. DHS had planned to release additional visas this way in 2020, but then cancelled the supplemental cap entirely.

Using the supplemental cap is the easiest way to ease the economic burden of the H‑2B cap. But the administration has other ways as well, as I explain in my H‑2B paper as well as in our extensive list of executive actions for the Biden administration. The administration has the ability to certify H‑2B jobs for three years as opposed to a single season, freeing up cap space each year. It can also authorize the spouses and older minor children to work, and it could allow workers to extend their stays beyond the current 3‑year regulatory limit (as the Trump administration did for certain industries in 2020).

These reforms would allow the H‑2B program to reach its highest economic potential, which is extremely useful during the economic recovery. The Biden administration has already rescinded the protectionist ban on immigrant visa recipients for future legal permanent residents partly on the grounds that “the suspension of entry…. does not advance the interests of the United States. To the contrary, it harms the United States including…. industries in the United States that utilize talent from around the world.” This same rationale applies both to the H‑2B visa restrictions and the delay on issuing supplemental H‑2B visas. He should act on both issues immediately.

E‑Verify is systematically unable to enforce workplace immigration laws. E‑Verify, which is an online government program that allows employers to check the work authorization of their new hires to supposedly exclude illegal immigrant workers, “was promised as the silver bullet to immigration problems” according to former Arizona Republican state senator Rich Crandall. “E‑Verify was going to solve our challenges with immigration,” Crandall said. Or at least, that’s what the advocates told him. Now advocates and U.S. Senators like Tom Cotton (R‑AR) and Mitt Romney (R‑UT) have introduced a national E‑Verify mandate that would force all businesses to use the system when making a new hire.

As it often turns out, the advocates and the politicians they influence are wrong. E‑Verify doesn’t work because it is a very easy-to-fool system – to say nothing of its errors in falsely identifying illegal immigrants and the huge regulatory cost that it imposes. Businesses take the risk of getting around E‑Verify by not using it in states where it is legally mandated. They also look the other way when the documents are questionable – often for good legal reasons. The government cannot expect every business to become specialized at identifying whether particular documents are actually owned by the applicant holding them.

An illegal immigrant worker who presents somebody else’s legal work documents gets approved because E‑Verify only checks paper, it doesn’t check the person holding it. This obviously incentivizes identity theft. Making scarce government documents necessary for certain market activities creates a black market for those documents. It’s no coincidence that Arizona, which mandated E‑Verify for all new hires in 2008, had the highest rate of reported identity theft in the United States. Nor is it a coincidence that identity theft really took off nationally after the 1986 Immigration Reform and Control Act required employment verification via the I‑9 form.

Illegal immigrant workers also “rent” legitimate documents from legal workers. One survey-based paper found that immigrant farmworkers estimated that 50 to 70 percent of their coworkers used loaned documents whose procurement is usually arranged by a supervisor, friend, colleague, or a fourth party. It turns out, that fourth party likely includes staffing agencies hired by businesses to administer E‑Verify and other employment requirement schemes for new hires.

Currently, some shady staffing agencies hire illegal immigrants by lending legitimate identifications to them. They try to avoid using E‑Verify but it’s easy to see how this business model will expand dramatically if E‑Verify were to become mandatory. Even if the business owners themselves don’t want to dip their toes into this black market, many employees will be tempted if they could make $300 for each identification they lend. If Congress were to ever mandate E‑Verify nationwide, one should expect that price to rise along with surging demand created by that government system.

E‑Verify and employment verification are effective subsidies of identity theft and identity loans in myriad ways that we are just beginning to understand. Hopefully, Congress won’t ever give us a reason to fully understand how adaptive shady operators in a black market can be.

President Joe Biden rescinded Donald Trump’s presidential proclamation banning new immigrant visas for most new legal permanent residents coming from abroad. Trump justified the ban based on old, disproven economic protectionist arguments. He claimed immigrants would take jobs. During his campaign and in this proclamation, President Biden rejected this idea. Yet incongruously, he’s keeping an identical ban on temporary work visa holders.

The State Department issued nearly 290,000 fewer immigrant visas in the categories that the ban targeted during the year that it was in effect. If they are not from a country on which Biden has imposed a countrywide entry ban—mostly Europe, South Africa, Brazil, China, and Iran—these immigrants will now be able to immigrate to the United States. This is great news for them and for the Americans with whom they plan to associate.

Altogether, the banned categories saw a 90 percent decline in visa issuances over the last year. The family-sponsored categories saw an average decline of 94 percent, while employees of U.S. businesses were least affected (partly due to a favorable court decision that exempted employees of members of the National Association of Manufacturers and the Chamber of Commerce). 83 percent of the banned immigrants were family members of U.S. citizens and legal permanent residents.

Spouses and minor children of U.S. citizens were exempt from the ban, but they also saw a decline in the number of visas issued due to the travel restrictions. According to a government filing this month, the State Department had nearly 473,000 documentarily qualified family-based immigrant visa applicants—presumably some of these cases will ultimately turn into denials, but this will be a huge undertaking for the consulates to process.

Four ideas to help with this backlog (mostly borrowed from our one-time Cato author David Kubat):

1. The government should use “parole-in-place” authority to waive the requirement to travel to consulate abroad for certain applicants who would otherwise be eligible to adjust in the United States if not for the fact that they initially entered without inspection (illegally).
2. It should adjudicate applications for waivers on grounds of inadmissibility before conducting the interview to save time and streamline the process. Under the current process, the State Department waits until after they’ve taken your fingerprints, medical evaluation, and other documents and then get denied. Only then do you restart the many months-long process of trying again.
3. It should allow for remote or virtual interviews to speed the interview process. Remote immigration court hearings are already happening.
4. It should waive as many interviews as possible for applicants with no red flags and a history of travel to the United States.

As Figure 1 shows, the number of immigrant visas had already declined by more than a quarter before the pandemic. This means that even without the visa bans, the new administration will have to go further to rescind the numerous restrictions on legal immigration that led to that decline.

Of course, the other major visa ban—on the most common nonimmigrant work visa categories for skilled and seasonal nonagricultural workers—is still in effect. President Biden states in his order revoking the immigrant visa ban, “The suspension of entry…. does not advance the interests of the United States. To the contrary, it harms the United States including…. industries in the United States that utilize talent from around the world.” These lines apply just as much to the nonimmigrant visa ban, yet Biden has chosen to keep it.

The nonimmigrant visa ban and immigrant visa backlog are just two of the numerous issues that Biden will have to address to get the legal immigration system back to what it was pre-Trump. There are also country-specific entry bans on Europe, South Africa, Brazil, China, and Iran that lack any health basis. The public charge rule to keep out low-income immigrants is also still in force. USCIS has not reinstated its prior deference memo and so is still relitigating past approved petitions and applications in order to increase denials. The immigration forms still contain the bogus, vague, time-consuming, and expensive “extreme vetting” questions based on a faulty reading of the data on vetting failures. At the border, Border Patrol is still “expelling” asylum seekers under a political CDC order. The immigration courts and asylum process generally is still in chaos.

With this action, the president makes his first real attempt to reinstate the system to how it once was, but he’s not even 10 percent of the way there. Still, it’s a great first step.