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Articles by David Bier

The H-2A Touchback Requirement Makes No Economic or Security Sense

January 10, 2020

California Farm Workers By Tony Webster from Minneapolis, Minnesota, United States – Nipomo Farm Workers

The House of Representatives passed the Farm Workforce Modernization Act (H.R. 5038) last month. The House bill made some improvements to the H-2A program, which allows farmers to hire foreign guest workers, but it incorporated into the statute the current regulatory requirement in 8 C.F.R. § 214.2(h)(5)(viii)(C)) that an H-2A worker may not live in the United States continuously for more than 3 years. The Senate should not copy this mistake.
This provision makes no sense from an economic or security perspective. It imposes costly, needless turnover on U.S. farmers, and by forcing out workers, it unnecessarily creates many more opportunities for visa violations. These

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No Unusual Migration Trend for Mexicans to Justify Deporting Them to Guatemala

January 7, 2020

The Trump administration has announced that it will begin deporting Mexican asylum seekers to Guatemala, where they will face homelessness in a country with one of the highest murder rates in the world. Last year, Guatemala signed onto a deal with the United States to accept deportees from other countries, and the administration had sold it as a way to resettle refugees “closer to home.”
But this announcement demonstrates that this justification was simply a farce, as most Mexicans crossing the border live closer to the United States than Guatemala.The administration is apparently justifying the move by citing a major increase in Mexican arrivals. The New York Times states:
about 17,000 Mexicans were caught crossing between ports of entry in October, a 34 percent increase since July ,

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H-2A Guest Worker Minimum Wages Up in 2020, 57% above New State Minimums

January 3, 2020

Two dozen states are raising their minimum wages in 2020. While the federal government’s minimum for all workers remains the same, the feds have hiked one minimum wage in 2020: the Adverse Effect Wage Rate (AEWR) paid to H-2A foreign seasonal farm workers. Despite the state changes, this rate will still far exceed the federal or state minimum wage in every state in 2020 by an average difference of 57 percent.
The AEWR is the Department of Labor (DOL)-mandated wage for H-2A seasonal farm workers. Farmers who hire even a single H-2A worker must also pay the AEWR to every American worker as well if it is higher than what they would otherwise receive. Except for Alaska, each state has its own AEWR, which run from $11.71 to $15.83 per hour in 2020 (based on 15 regions). State minimum wages

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Congressional Republicans Dominate High Immigration Periods

December 30, 2019

Of all the concerns about immigration, perhaps none is more important to politicians than how immigration affects political control. In particular, many Republicans believe that immigration has clearly boosted the Democratic Party and that higher immigration will obviously doom the GOP. But historically (and recently), congressional Republicans have performed much better during periods when the immigrant share of the population is high. By contrast, Democrats dominated the low immigration periods.
GOP Almost Always Controls a House of Congress During High Immigration Periods, Rarely Controls Either House During Low Immigration Periods
The Republican Party came into existence in 1854, and while it quickly dominated, the Civil War and Reconstruction make its early history anomalous. Looking

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Biden Backs City-Sponsored Visas

December 12, 2019

Former-Vice President and presidential candidate Joe Biden—the Democrats’ frontrunner—released his immigration plans this week, and they contain some interesting surprises. In particular, Biden states that he would allow states and localities to sponsor visas for immigrants—an idea that my colleagues and I have written of for the last several years. So far, Sen. Ron Johnson (R-WI) and Rep. John Curtis (R-UT) have introduced bills to create a state-sponsored temporary worker program.
But the idea is starting to gain some more traction among Democrats. Biden’s immigration platform states that it:
Creates a new visa category to allow cities and counties to petition for higher levels of immigrants to support their growth. The disparity in economic growth between U.S. cities, and between rural

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Despite More Staff, CBP Says “No Resources” To Process Asylum Applicants At Ports

December 5, 2019

Customs and Border Protection (CBP) has taken a series of unprecedented actions to limit the ability of immigrants to request asylum in the United States. But among its earliest and most consequential decisions was to cap the number of migrants who it would process for asylum at ports of entry. This policy clearly violates federal law. More importantly, it forces asylum seekers to remain homeless in squalid and desperate conditions in dangerous Mexico border cities, leading many to cross illegally.
The American Immigration Council and Al Otro Lado have challenged the policy (the government calls it “metering”) in court, and the government has argued that it lacks the resources to process undocumented migrants who arrive at ports to request asylum. In other words, it is violating the law

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Most Central Americans Still Evade Mexican Migrant Crackdown

December 3, 2019

Mexico’s government has touted to President Trump its efforts to reduce migration of Central Americans through its territory to the United States and took credit for the drop in arrests of migrants at the U.S.-Mexico border since June. Yet Mexican immigration enforcement fails to explain the drop in immigrants reaching the United States for three reasons: 1) most who try are still making it, 2) the effectiveness of Mexico’s enforcement is slightly worse than the median month since October 2014, and 3) the drop has occurred mainly among families and unaccompanied children, while Mexican enforcement has mainly targeted adults traveling alone.
Figure 1 shows the number of arrests of immigrants from Central America’s Northern Triangle—Guatemala, Honduras, and El Salvador—by U.S. Border Patrol

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New Policy Banning H-2A Sheepherders Shows Need for Congress to Act

November 15, 2019

Yesterday, the Trump administration announced it would end a decades-old practice of allowing sheep and goat herders to enter the United States as guest workers under the H-2A program. U.S. Citizenship and Immigration Services (USCIS) published a policy memo that overturn its historical practice of allowing sheepherders to receive three consecutive, back-to-back grants of H-2A status for 364-days (or similarly lengthy periods).
Congress should protect the herding industry. The bipartisan Farm Workforce Modernization Act, which I have previously reviewed here and is currently moving in the House, would address this issue in multiple ways, but other options exist to stop this assault on an important legal immigration program from occurring.
The H-2A statute requires that H-2A status be

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H-2A Farmers Will Benefit From House Reform Bill

November 5, 2019

A bipartisan group of House members introduced the Farm Worker Modernization Act. The legislation will expand eligibility for the H-2A program to year-round industries, but it also contains several welcomed reforms that will bring down the costs of using the H-2A program, as I’ve detailed in my general review here. One set of reforms that will benefit current H-2A users in particular will change the government-established H-2A wage called the Adverse Effect Wage Rate (AEWR) that employers must pay to all H-2A workers and U.S. workers in "corresponding employment."
The Department of Labor (DOL) calculates the AEWR using the Farm Labor Survey, a quarterly survey of farms conducted by the Department of Agriculture. It has several problems, including that the AEWR, unlike most immigration

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Bipartisan Bill Increases Legal Migration & Legalizes Farmworkers

October 30, 2019

A bipartisan group of about 50 House members, equally divided between both parties, introduced legislation today that expands both permanent and temporary migration for agriculture, while legalizing illegal farmworkers. The Farm Workforce Modernization Act will be the most significant effort to reform legal immigration since the 2013 comprehensive reform bill in the Senate, and it will likely pass the House on a broad bipartisan vote before Thanksgiving. This legislation will significantly reduce the illegal market in farm labor and provide reliable a legal supply for workers for farms going forward.
The legislation does not construct the ideal system for farmers or workers because it maintains and incorporates into statute the stilted bureaucratic regulatory structure of the existing H-2A

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Senate Democrats’ RELIEF Act Would Double Legal Immigration Over 10 Years

October 18, 2019

Senators Dick Durbin (D-IL) and Patrick Leahy (D-VT) introduced the RELIEF Act this week. The legislation is their alternative to the Fairness for High Skilled Immigrants Act, which passed the House this year. Both bills would phase out the employment-based per-country limits that prevent any nationality from using more than 7 percent of the green cards granting permanent residence in any given year (unless they otherwise would go unused). The per-country limits create disproportionately long backlogs for Indian nationals. Both bills also double the family-sponsored per-country caps from 7 to 15 percent.
The key difference is that the RELIEF Act would also increase the total number of green cards, while the Fairness for High Skilled Immigrants Act contains no change in the amounts. It is

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Fairness for High Skilled Immigrants Act: Wait Times and Green Card Grants

September 30, 2019

In an overwhelming vote, the House of Representatives passed the Fairness for High Skilled Immigrants, a bill to phase out the per country limits on employment-based immigrant visas (or green cards), which lead to legal permanent resident status. The Senate is working on its own version of the legislation. The per country limits provide that no single nation can receive more than 7 percent of the total green cards issued in a year (unless they would otherwise go unused).
Because Congress has failed to authorize enough green cards for workers hired by U.S. employers, a large backlog of applicants has developed. The largest employment-based backlog is in the second and third preference categories for employees of U.S. businesses with at least bachelor’s degree (i.e. EB2/EB3). As of May 2018,

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Immigrant Share Didn’t Rise For the First Time Since Recession

September 26, 2019

President Trump campaigned against immigrants in 2016, and it appears that he managed a major victory. The Census Bureau released its American Community Survey (ACS) estimate of the U.S. population for July 2018 today, finding that immigrant share of the population—foreigners born abroad to noncitizens—remained flat from July 2017 to July 2018. As seen in Figure 1, this was the first time since the Great Recession in 2008 that ACS has found no increase in the foreign-born share.

If the immigrant share had remained flat in 2018 because the total U.S. population jumped, it would be less of an issue, but that was not the case. Total population growth also fell in 2018, meaning that if the absolute number of immigrants had grown at the same rate, the immigrant share should have increased

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Migrants Are More Likely to Make It Past Mexican Enforcement in Recent Years

September 23, 2019

When many Central Americans began appearing at the U.S.-Mexico border in 2013 and 2014, Americans reacted with surprise. Why were Central Americans suddenly deciding to come to the United States now? Of course, there is more than one answer, but perhaps the most important missing context is that just as many Central Americans were trying to reach the United States in earlier years. They just didn’t make it.
Figure 1 shows the number of arrests of Central Americans from the Northern Triangle by Mexican authorities and by the U.S. Border Patrol from 2001 to 2019. As it shows, arrests in 2005 and 2006 rivaled those from 2014 to 2018, but the large majority of the arrests were made in Mexico, not the United States. U.S. and Mexico apprehensions declined together from 2001 to 2011, but starting

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Homicides in Mexico Tripled But Fewer Mexicans Came Illegally

August 23, 2019

Since 2007, Mexico has seen a massive surge of gang warfare and violence unlike anything it has witnessed since the 1980s. Intuitively, this fact should lead more Mexicans to want to flee to the United States. Yet that hasn’t happened. In fact, illegal immigration from Mexico has all but disappeared. In 2019, Central Americans have now far outnumbered their more populous neighbor.
Figure 1 illustrates the relationship between the homicide rate in Mexico and the rate at which Border Patrol agents apprehended Mexicans. The number of apprehensions per agent is the best available measure of total illegal crossings because it controls for the level of enforcement. More agents will lead to more apprehensions without more crossings.
As violence dwindled in the late 1990s and early 2000s—from

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Public Charge Rule Bans Almost Entirely Self-Sufficient Legal Immigrants

August 12, 2019

The Department of Homeland Security (DHS) finalized a regulation today that would ban legal status to immigrants who its officers determine are likely to become “public charges”—that is, wards of the state. DHS claims that the rule will promote self-sufficiency among immigrants, but the goal is a farce. The rule is designed to exclude immigrants regardless of the degree to which they are supporting themselves and contributing positively to the economy. DHS actually made the final rule worse than the proposed rule.
DHS responded to my comments on the proposed rule in its final rule without naming me specifically. My primary complaint was that DHS’s proposed definition of a public charge was anyone who received more than 15 percent of the poverty line in benefits, which entirely ignored

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An Explanation of the Public Charge Rule: Frequently Asked Questions

August 12, 2019

The Department of Homeland Security (DHS) finalized a regulation this week that bans “public charges” from receiving legal status in the United States. The public charge rule redefines the historic meaning of this term, which will result in far more immigrants not receiving status in the United States based on a bureaucrat’s suspicions that they could use welfare. The rule is fundamentally flawed and will harm taxpayers, while separating Americans from family members abroad.
What does the public charge statute say?
Section 212(a)(4)(A) of the Immigration and Nationality Act (8 U.S.C. 1182) states, “Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.” Someone who is inadmissible cannot receive a visa

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Trump Is Promising Visas for Guatemalans—Here’s How He Can Deliver

August 2, 2019

President Trump is promising Guatemala that if its legislature signs off on a “Safe Third Country” agreement to accept asylum seekers who come to the United States, he will increase the number of H-2A temporary agricultural work visas for Guatemalans. His Acting Secretary of Homeland Security Kevin McAleenan was down in Guatemala promising Guatemalan legislators that the United States will “double or triple” the 4,000 H-2A visas that Guatemalans received in 2018.
This is a very important conceptual shift from this administration. Increasing legal immigration options to prevent illegal immigration should be the government’s single-minded focus right now. But the administration appears to be making promises that it cannot deliver. H-2A visas already have no numerical limit, so there are

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No Evidence Migrant Families Are Aiding Drug Smuggling

July 19, 2019

Families and children coming to the U.S.-Mexico border turn themselves in to Border Patrol and receive background checks, which they virtually always pass, prior to their release into the country. Yet security officials insist that these migrants are nonetheless a serious security concern. These officials have relentlessly promoted one narrative in particular for years: that asylum-seeking families unwittingly help drug smugglers. Here are a few examples:
Border Patrol Union Spokesman Chris Cabrera, October 2015: Families “are human screens that tie up Border Patrol Agents while the cartels smuggle narcotics and higher value aliens behind them.”
Border Patrol Union President Brandon Judd, February 2016: They “completely tied up our manpower and allowed the cartels to smuggle whatever

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90% of Border Crossers Aren’t Referred for Asylum Interviews

July 17, 2019

The government is implementing a new proposal that would ban asylum for immigrants coming to the United States through Mexico. It pins the uptick in border crossers on the asylum process, but the government’s statistics reveal that 90 percent of crossers in 2019 were not referred for an asylum interview at the border, and the highest share ever referred was just 19 percent in 2018.
In fact, the rate of referral was just 7 percent in March 2019. This strongly indicates that the asylum ban will not have its intended effects. Figure 1 compares the rate at which undocumented immigrants at the southwest border were referred for asylum interviews at the border—called credible fear interviews—for each year from 2010 and 2019 as well as March 2019—the most recent month available. In no year

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Sen. Paul’s BELIEVE Act Raises Skilled Immigration Without Tradeoffs

July 11, 2019

Today, Sen. Rand Paul introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091). The BELIEVE Act would solve most of the major issues with skilled immigration in one piece of legislation. Altogether, the bill would increase green cards (which grant permanent residence) for employment-based immigrants by nearly fourfold, and it does so without making any changes that would injure other categories of legal immigration.
The long-term economic and fiscal benefits of this bill are difficult to overstate. The National Academy of Sciences (NAS) estimated in 2016 that the lifetime net present value of the average immigrant with a college degree to all levels of government was between $210,000 and $345,000 (Table 8-14). For those with more

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Decline in June Border Patrol Apprehensions Tracks Prior Years’ Patterns

July 9, 2019

Border Patrol apprehended 94,487 immigrants in June, according to a leak to the Washington Examiner. This constitutes a 29 percent decline compared to the 132,887 immigrants received in May. Nonetheless, apprehensions in June were higher than every month from FY 2009 to 2019 except the last two, April and May 2019 (Figure 1), and nearly three times the level in June 2018. They were also higher than March 2019, when the agency described nearly 93,000 apprehensions as a “system-wide emergency.”
Figure 1

Figure 1Infogram

The June decline is similar to declines almost every summer since the year 2000. The only exception was the short-lived “Trump effect” in 2017. Migrants moved up their crossing dates to before his 2017 inauguration and others stayed away until they realized little had

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77% of Drug Traffickers Are U.S. Citizens, Not Illegal Immigrants

July 3, 2019

When people think of drug smugglers, they often imagine illegal immigrants sneaking into the United States across the southwest border. But the reality is that the vast majority of drug smuggling occurs at ports of entry (including airports), and the vast majority of traffickers are U.S. citizens. According to data from the U.S. Sentencing Commission, U.S. citizens had 77 percent of federal drug trafficking convictions in 2018. This percentage has grown from 69 percent in 2012. As Figure 1 shows, the share of drug traffickers who were illegal immigrants fell from 21 percent in 2012 to 16 percent in 2018.
Bar Chart

Bar ChartInfogram

The reason that drug traffickers are largely U.S. citizens is because most drug trafficking occurs at ports of entry because most drugs—other than

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Are CBP’s Filthy and Inhumane Immigrant Detention Camps Necessary?

July 3, 2019

The Office of Inspector General (OIG) for the Department of Homeland Security (DHS) published a report about detention facilities operated by Customs and Border Protection (CBP) yesterday describing “dangerous overcrowding and prolonged detention of children and adults in the Rio Grande Valley.” This report came just over a month after DHS OIG’s May 30 report on “dangerous overcrowding” in El Paso.
What are the conditions in CBP’s detention camps?
Across the entire border, CBP was detaining from May to June between 4 and 5 times as many people as its facilities were designed to hold. It is impossible to list here everything that the OIG reports exposed, but here are some of what they found:
A cell with a maximum capacity of 35 held 155 detainees
A cell with a maximum capacity of 8

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Democratic Debate Ignores Illegal Immigration’s Cause: No Visas

June 27, 2019

Democratic candidates for president gathered last night to debate, and moderators asked, what would you do to address the number of people crossing illegally? The discussion devolved into the question of whether crossing should remain a crime (punishable by prison time) or just a civil infraction (punishable by deportation). No one stated the obvious: that Congress should make it legal, not to trek through Mexico and swim the Rio Grande, but to board private U.S.-bound airplanes and come to the United States to work.
According to the Department of Homeland Security, the average Central American is paying north of $8,000 to make it to the U.S.-Mexico border where they are brutalized in Mexico and in the United States. Round-trip airfare from El Salvador, Guatemala, and Honduras is

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Higher Asylum Grant Rates Predict Higher Family Appearance Rates in Top Immigration Courts

June 20, 2019

TRAC Immigration, a project of Syracuse University, published a report this week, showing that 81 percent of recently released families apprehended at the border showed up for all of their hearings. Some immigration court locations did much better than others in obtaining compliance from immigrant families. San Francisco’s court had almost zero no-shows, while two and five skipped out in Atlanta.
TRAC’s report hypothesized that it was possible that “the lowered appearance rates in some courts arose from particular deficiencies in the recording, scheduling or notification systems there.” While this could be, there is no way to test for such variation. Another strong hypothesis, suggested by Aaron Reichlin-Melnik of American Immigration Council, is that immigrants are much more likely

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Mexico Deported More Central Americans Than the U.S. in 2018

June 12, 2019

President Trump has decided to blame Mexico for the border crisis, rescinding and then reiterating his threat to impose tariffs on America’s neighbor to the south if it doesn’t stop migrants from Central America’s Northern Triangle from coming. Yet Mexico’s enforcement of immigration laws against Central Americans has been more vigorous than the United States for some time.
In 2018, Mexico deported more immigrants back to the Northern Triangle than the United States did, and it deported nearly all the immigrants who it apprehended in that year. The United States did not. It’s just not true that Mexico is less vigorous in its anti-immigration efforts than the Trump administration.
Indeed, from 2004 to 2018, Mexico deported 1.7 million Central Americans back to the Northern Triangle

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What Will the E-Verify Program Be Used to Surveil Next?

June 4, 2019

E-Verify is the federal government’s attempt to create an electronic national identification system. It is capable of checking government databases to verify information—often including a photo—on every U.S. resident. Right now, the system monitors only employment and is only mandatory in some states, ostensibly to deter illegal immigration, but nothing would prevent lawmakers from expanding E-Verify to monitor identity or legal status in any other domain and restrict access based on other criteria they want.
Numerous federal, state, and local laws already require people to identify themselves or prove their immigration status, and lawmakers continue to propose many additional laws. The more areas that E-Verify is used to monitor, the more it will create a digital record of Americans’

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Tariffs Won’t Stop Illegal Immigration and Could Backfire

May 31, 2019

President Trump  announced that starting on June 10, the administration will impose a 5 percent tariff on all Mexican imports “until Mexico substantially stops the illegal inflow of aliens coming through its territory.” This tariff would escalate by 5 percent per month to an astonishing 25 percent “permanently” by October 1. This idea is a terrible policy. It will punish U.S. consumers with higher prices, and it could easily result in more illegal immigration.
Tariffs will undermine the Mexican economy and lead to more illegal immigration from Mexico.
Mexico’s exports—$195 billion to the United States—account for 38 percent of its GDP. Imposing a 25 percent tariff would make trade with Mexico unprofitable. For context, the U.S. currently has a 25 percent tariff on pickup trucks which

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E-Verify Errors Harmed 760,000 Legal Workers Since 2006

May 30, 2019

Last week, President Trump announced that his immigration plan would not mandate that employers use E-Verify, the employment verification system that checks new employees against government databases. While the president felt it was too “tough” on illegal workers, he is wrong. Nearly all illegal workers passed the system last year. In reality, E-Verify is tough on legal workers who have had nearly 760,000 jobs held up by the system since 2006.
How many legal workers E-Verify has harmed
Employers who use E-Verify enter the names, dates of birth, and Social Security Numbers (or alien ID numbers) that employees provide on their Form I-9 into the system. E-Verify then checks this information against government databases at the Department of Homeland Security (DHS) and the Social Security

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