“Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies.”
-Groucho Marx
Immigration policy in the United States is one of the most divisive issues facing our country. Some groups, such as the Federation for American Immigration Reform and the Center for Immigration Studies, advocate for massive reductions in the number of immigrants in the United States, including both undocumented and legal immigrants. Other groups, such as Compete America and the American Immigration Council, advocate for changes that will modernize immigration policy to allow employers in the U.S. to fill critical hiring needs, reunite families, and provide opportunities for those fleeing violence, natural disaster, and devastating poverty.
Not surprisingly, each new presidential administration has listed immigration reform somewhere on its priority list. And yet, despite being a priority, we have not seen comprehensive changes to the underlying legal structure of the U.S. immigration system since the Immigration Act of 1990 (IMMACT 90). High-skilled immigration saw some modifications through the American Competitiveness and Workforce Improvement Act (ACWIA), passed in 1998, and the American Competitiveness in the Twenty-First Century Act (AC21), passed in 2000. However, these statutes only made small adjustments to the existing structure for high-skilled immigration, including some that were only temporary.
Yet, immigration policy in the U.S. is anything but stable. Instead, it has undergone major changes—through regulatory changes, the issuance of policy memoranda, and other guidance on adjudication policies. Sometimes, the changes are more accommodating to immigrants; other times, the changes are more restrictive.
This article examines these changes as they relate to high-skilled, employment-based immigration in the U.S. In particular, this article focuses on policy relating to H-1B nonimmigrant petitions for workers performing specialty occupations; L-1 nonimmigrant petitions for intracompany transfers for managers and workers with specialized knowledge; and immigrants seeking permanent residence through the employment-based first, second, and third preference categories.
This article continues with an analysis of how the Trump administration has affected high-skilled immigration policy far more in its first year than the prior two presidential administrations—despite not making any statutory or regulatory changes. Instead, the administration has used a combination of sub-regulatory actions, such as the issuance of executive orders, rescission of long-standing policy memoranda of the United States Citizenship and Immigration Services (USCIS), and changes to adjudication policy. While agency decision-makers seem to drive the directives, disclosure of the internal policy directives has not yet occurred. The combination of these factors has created a dramatic effect on the practical administration of high-skilled immigration policy.