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Can Biden Reconcile Competing Interests of Domestic Labor and Immigration Reform?

Jan. 21, 2021, 9:01 AM

National debates concerning immigration focus largely on the purported cultural and criminal threat posed by undocumented immigrants. Yet the reality is that immigration debates are domestic labor issues.

President Joe Biden is expected to send a sweeping immigration reform bill to Congress. However, he will have his hands full trying to reconcile competing interests between immigration reform (a key agenda for the left wing of his party), and the real-world impact any such reform will have on domestic labor.

This challenge has thus far not captured much media attention or substantive critique. News reports almost exclusively focus on Biden’s rejection of both Trump’s xenophobic rhetoric and his antagonistic policies aimed against immigrant communities and on Biden’s promises to remove asylum application impediments, the elimination of the “Muslim ban,” and proposed reforms to temporary visa programs.

While Biden’s inauguration speech emphasizing unity did not address immigration, his platform acknowledges immigration’s role in the U.S. economy and its value to employers, noting “the total annual contribution of foreign-born workers is roughly $2 trillion.”

Biden Proposals on Immigration and Labor

Biden, in fact, has several important legislative and regulatory stances relating to immigration and labor. Perhaps the most important one is the plan to link H-1B visas to wages while increasing the number of such visas.

Under the basis of protecting domestic workers, Trump previously suspended such visas and then put restrictions on them. The Biden administration plans on expanding the number of high-skilled visas and eliminating the limits on employment-based visas by country, which according to Biden unnecessarily creates “long backlogs.”

According to Biden, “High-skilled temporary visas should not be used to disincentivize recruiting workers already in the U.S. for in-demand occupations. An immigration system that crowds out high-skilled workers in favor of only entry-level wages and skills threatens American innovation and competitiveness.”

While his H-1B proposal may be implemented via legislation or by regulatory means, as with his other proposals, it will be far easier and faster for Biden to implement his H-1B proposal through executive or regulatory action.

Biden also plans to exempt from any cap recent graduates of doctoral programs in STEM (science, technology, engineering and math) fields in the U.S. who are poised to make some of the most important contributions to the world economy. Further, he “believes that foreign graduates of a U.S. doctoral program should be given a green card with their degree and that losing these highly trained workers to foreign economies is a disservice to our own economic competitiveness.”

Biden additionally has proposed a new immigrant visa that would be awarded from cities and local administrations facing shrinking populations and lacking entrepreneurs on the condition that those getting them settle in those areas.

While at first blush not an obvious labor issue, Biden also plans on reinstituting and expanding the Deferred Action for Childhood Arrivals (DACA) program as well as the Deferred Action for Parent of Americans program. He plans on ensuring DACA recipients “are eligible for federal student aid and are to be included in the Biden proposal to provide access to community college without debt and invest in HBCU/Hispanic Serving Institutions.” These proposals will certainly have an impact on domestic labor.

Impact on Domestic Labor

The above executive-based proposals will apparently provide domestic employers with more skilled labor options, but also will pose a challenge to the domestic labor market by increasing the competitiveness of the pool of potential skilled employees. In fact, some of the Biden proposals actually expand the pool of domestic workers, i.e., his DACA and DAPA reinstatement plans.

One shortcoming of Biden’s immigration/labor proposals is that they fail to fully examine the cost and challenges of these proposals on domestic labor. Some writers have already begun to criticize the Biden administration for taking inconsistent positions that attempt to appease both domestic and foreign workers, despite the fact that such groups often have competing interests.

On the legislative front, Biden has promised to work with Congress to reform temporary visas to establish a wage-based allocation process and establish enforcement mechanisms to ensure they are aligned with the labor market to ensure that increased use of visas does not undermine wages. In other words, Biden has promised to work with Congress to increase the number of visas awarded for permanent, employment-based immigration—and promote mechanisms to temporarily reduce the number of visas during times of high U.S. unemployment.

He also supports legislation providing legal status to agricultural workers based on prior work history, and a fast-track to a green card and ultimately citizenship. While the agricultural worker proposal seems to directly affect and potentially harm domestic workers, the evidence is clear, agricultural workers simply do not take jobs from domestic workers.

Other than his agricultural worker proposal, it is unclear whether Biden can achieve his goals of promoting immigration and at the same time ensure domestic labor is not harmed. Nonetheless, President Biden’s idea to tie visas to the domestic labor market is a promising first step, but more details are needed and even this proposal could perhaps be expanded to include other aspects of his immigration plan.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Ediberto Román is a law professor and nationally acclaimed constitutional law, immigration, and critical race theory scholar at Florida International University in Miami. He edits NYU Press Series, “Citizenship and Migration in the Americas.”