Notice & Comment

Hire American: Race-Based Exclusion in Employment-Based Immigration, by Stella Burch Elias & Kit Johnson

Immigration fuels the engine of corporate America. Fortune 500 corporations routinely recruit talented managers from their offices around the world to work in the United States. Smaller businesses operating in regional markets also rely on immigrant employees, who are willing to fill jobs when the domestic labor market cannot meet demand. Between 25 and 30 percent of new businesses formed each year are led by immigrants, and nearly a quarter of U.S. employees in STEM-based occupations are foreign nationals. In short, international workers help American business thrive. 

Yet, despite their importance to the U.S. economy, foreign-born workers, and in particular immigrants of color, have long been viewed in the United States with suspicion and distaste. This long-standing animus has shaped the legal structures controlling employment-based migration since the very beginning of U.S. immigration law. In 1882, the Chinese Exclusion Act suspended the migration of Chinese nationals for 10 years—ostensibly to protect Californian workers from having to compete with foreign laborers who would work for lower wages. In truth, the Act had far more to do with racial unrest in the U.S. following the Civil War than a desire to protect American workers. From 1924 to 1965, “national origin quotas” assured nearly 70 percent of the immigration visas would be issued to northern Europeans, cutting back drastically on immigration from southern and eastern Europe and maintaining formidable barriers against immigration from Africa, Asia, and Latin America. In 1965, during the civil rights movement, the Hart-Celler amendments to the Immigration and Nationality Act were designed to replace the racially-discriminatory national origin quotas.  They instead introduced a complex system designed to “balance” the migration of workers from countries and regions of origin around the world.  This system enjoyed some success in the shorter-term, but in the long-term it has left immigrant workers of color from Asia and Latin America languishing on long wait lists and struggling to demonstrate that they meet the occupational qualifications to obtain a visa, while white applicants from Europe, Canada, Australia, and New Zealand encounter no similar barriers.

More recently, President Trump has used executive orders to establish a national policy to Hire American.” When announcing the policy he referred repeatedly to his intention to limit the issuance of visas to Indian and Chinese nationals working in STEM fields. His administration took an even more drastic step in June 2020, issuing a “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” which suspends nearly all labor-based migration for the next six months.  The Proclamation bars the issuance of “H-1B” and “H-2B” nonimmigrant visas for foreign workers; “J” nonimmigrant visas for interns, trainees, teachers, scholars, and au pairs; and “L” nonimmigrant visas for “intra-company transferees” planning to deploy to their current employer’s U.S. offices. It also halts the issuance of so-called “derivative visas” for the spouses and minor children of any individuals currently residing in the United States as holders of H-1B, H-2B, J, or L visas.  This initiative, like those discussed by our colleague, Professor Ming Hsu Chen, in her contribution to this Symposium, was framed as a “color-blind” measure, designed solely to protect American workers from foreign competition. But, once again, it is an immigration policy that has disproportionately impacted Asian and Latinx immigrants applying for visas from “oversubscribed” countries and regions of origin. 

There are other, perhaps less obvious, but no less devastating, ways in which the Trump administration has used its regulatory powers to restrict employment-based migration by people of color.  The 2019 new governing inadmissibility on public charge grounds added a variety of new restrictions on who could apply for lawful permanent residence in the United States, including heightened income burdens for those with more dependents and new credit-worthiness tests based upon data collected by commercial credit agencies.  Data collected by the Pew Research Center show conclusively that non-white immigrants, in contrast with their peers from Europe and Canada, are likely to have larger families and to have fewer financial records accessible to credit checking entities in the United States.  The new rules thus added additional hurdles for immigrants of color seeking employment-based visas.  The Trump Administration has also announced its intention to eliminate employment authorization for the spouses of H-1B nonimmigrant visa holders.  Once again, the framing of the notice of proposed rulemaking is neutral, but the practical application of the rule would disproportionately affect immigrants of color, in particular women of South Asian origin, who account for over 90% of H4 visa petitions.

Since 1965, the United States has purportedly sought to eschew racial exclusion in employment-based migration, yet it has consistently failed to deliver on that promise.  Since January 2017, this situation has become increasingly evident.  Each attempt at regulatory and subregulatory rulemaking by the Trump Administration has had an intentional and disproportionate effect on immigrants of color, curtailing the ability of talented individuals from around the world to flourish personally and professionally by contributing to the American business community.

Stella Burch Elias is Professor and Chancellor William Gardiner Hammond Fellow in Law at the University of Iowa College of Law.

Kit Johnson is a Professor at the University of Oklahoma College of Law. Follow her on Twitter here.

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