Abuse of Authority by Immigration Officials During the Pandemic Undermines the Rule of Law
On May 10, 2021, the U.S. Citizenship and Immigration Services announced today that the Department of Homeland Security is reaffirming its commitment to the International Entrepreneur (IE) parole program, a business-friendly travel program for foreign entrepreneurs to create and develop start-up entities with high growth potential in the United States.
Good cause exists for President Biden’s move to welcome foreign investors. The Urban Institute’s poverty research recently estimated 45% of American families in 2021 possess liquid resources below 200% of the Supplement Poverty Measure (“SPM”), an expanded poverty measure that considers a family’s cash income, tax payments, tax credits, in-kind benefits such as nutrition help, and the stimulus checks. In addition, the latest U.S. Department of Labor data shows a whopping 43% of American adults surveyed reported being out of work for at least 27 weeks. Clearly, the shadow of economic uncertainty looms large over the lives of numerous families.
Tech companies that deliver products and services to homes and offices are thriving and are expected to maintain this momentum in the foreseeable future. On the other hand, hospitality, restaurant, and travel industries face an economic fallout of historic proportions while affecting the lower-income Americans the hardest.
Although business activity and business travel have been severely restricted during the virus outbreak, immigration agencies under the Trump administration have continued their relentless harassment of business travelers and companies affected by the pandemic. This is in line with President Trump’s “Buy American, Hire American” policy issued in 2017, which has resulted in the drastic increase in the rates of requests for evidence (RFE) and case denials against high-skilled workers and investors. The denial rate for H-1B visas in 2020 hovered at around 34%, while the denial rate for the L-1 visa category, used by executives of multinational corporations, reached 54%. The EB-5 investor category, an immigration program that generated $20.6 billion in direct foreign investment to create jobs for US workers between 2008 and 2015, saw a denial rate of 37% in Q3 of FY2020. To qualify as an EB-5 investor, a foreign applicant must invest between $900,000 to 1.8 million dollars in a qualified US enterprise.
The USCIS’s dramatic increase in the denial of employment-based petitions from 2016 to 2020 shows the agency has drastically tightened its adjudication standards, even though immigration laws have remained unchanged. Throughout the lockdown period of the pandemic, denial rates continued to rise through the first three quarters of 2020, sending a stern warning to foreign workers, business people, and investors throughout the world that America was no longer open for business as usual.
In addition to the inexplicably high rates of rejection, the Trump administration issued a moratorium on the most critical work visas, including the H-1B, J, and L-1, which effectively prevented high-skilled professionals, international executives, and scientific researchers from entering the United States. The harm inflicted by the Trump visa ban on American companies was felt immediately by the business community.
According to a research paper jointly prepared by the Brookings Institute and Harvard Business School, the visa ban cost Fortune 500 companies more than $100 billion in valuation, the equivalent of a fall of 0.45% in stock market valuation. Moreover, the loss of productivity and profit margins was so severe that it compelled the US Chamber of Commerce and the National Association of Manufacturers to file a joint lawsuit to block the Trump visa ban, accusing the Trump administration of “inflicting severe economic harm” on the United States.”
Although the Biden administration purports to reverse the economic and productivity losses caused by Trump’s controversial policies, the Biden team has done little to reform the immigration system. We continue to see business travelers being harassed and even deported by U.S. immigration officials for COVID-19 related immigration violations. For instance, foreign visitors on B-1/B-2 visas who were stranded in the U.S. due to travel restrictions continue to receive harassment by CBP officers at the airport.
Recently, we witnessed the marketing manager of a company with $100 million of gross sales revenue being harassed and deported from a U.S. port of entry, on the ground that he was suspected of working illegally without permission during the 5 months that he was stranded in the U.S. in the middle of 2020. Although the CBP officials acknowledged that the travel restrictions made it impossible for the manager to leave the U.S., and the Trump visa ban prevented him from obtaining a proper work visa in the first place, the CBP moved forward with the administrative removal order with a five-year bar to “uphold the law.” Making matters worse, the CBP officials copied the manager’s mobile phone data as “evidence” of his unauthorized employment. In addition, the expedited removal process took nearly three days to complete due to the dearth of available international flights.
The CBP’s officer’s removal order threatens the livelihood of U.S. workers who rely on the foreign manager for guidance and communication with the foreign parent company. These workers are now worried about their job security. Before his removal from the airport, the foreign manager has maintained a perfect record. He had worked in the United States for more than six years on the H-1B visa and returned to his home country immediately upon termination. As a manager of a multinational company widely recognized as an industry leader, the manager had no reason to violate U.S. immigration laws. The “visa violation” was a result of the travel disruptions brought on by the pandemic, compounded by the work visa ban implemented by the Trump administration.
Sadly, the Biden administration has not taken all of the necessary steps to protect foreign travelers from the toxic remnants of the Trump era policies. Slapping a 5-year bar against an individual responsible for generating tens of millions of dollars worth of economic value to U.S. manufacturers and workers harms economic recovery. The deportation of a foreign business manager otherwise engaged in lawful commerce puts the jobs of U.S. workers at risk while accomplishing little in furthering the government’s enforcement and security interests.
The fact is, the impunity and lack of accountability on the part of DHS officials have created an environment that undermines the rule of law for decades. With the rise of far-right extremism and the deep infiltration of xenophobic extremists in law enforcement agencies, the Biden administration must start holding DHS officials liable for the harm caused by their actions. The spread of right-wing populism in the 1920s gave rise to the Nazi movement that eventually led to the downfall of the Weimar Republic. For this reason, the German government is alarmed by the recent influx of right-wing elements in Germany’s present security apparatus.
The United States Department of Homeland Security, on the other hand, has done little to weed out racist groups such as the Ku Klux Klan and the Proud Boys within its ranks. A report released in May of 2021 by the Inspector General revealed that more than 80 CBP employees belonged to various social media groups that frequently featured hate speech against ethnic minorities and migrants. It is disconcerting that active supporters of hate groups are in positions of power responsible for safeguarding the ports of entry of the United States. As evidenced by the violent behavior of the Trumpian movement on January 6th, 2021, these individuals see the immigration system and the rule of law as a threat to their nativist agenda, not unlike the members of the Nazi movement more than 90 years ago.
The silver lining in this mess is that the Biden administration has finally requested funding to fund a probe of white supremacist elements embedded in DHS as “patriots.” The pandemic crisis exposes the incompetence and threat of these homegrown extremists to the rule of law. Recognizing the threat and identifying those infected by extremist ideology in the immigration system is the first step to restoring public confidence in the legal system.
