Could Trump Be Our Best Chance for Immigration Reform?
Breaking down the DOGE v. MAGA fight
Let’s face it: If Kamala Harris had won the election, we’d have gotten nowhere on immigration.
For one thing, the reality has never matched the rhetoric: For all of Trump’s fire and brimstone on immigration, Biden and Trump actually deported roughly the same number of people – around 1.5 million – in four years. And Biden’s new asylum rules lowered border encounters by 77 percent between December 2023 and August 24.
What’s more, in a Harris presidency, Republicans would have lined up to block any hint of pro-immigration reform, just as they did during the Biden administration. And states like Texas, Iowa, and Arizona would have continued their hard press to exclude or even deport people themselves, an issue that is wending its way through the courts and has a halfway decent chance of success, as I’ve written about here.
DOGE v. MAGA
But immigration isn’t going away. The more the world changes in the coming technology revolution, the more people will be on the move –- both high-skilled and low-skilled workers, and both into and out of the United States. People will move to where their skills are most needed as whole new sectors of the economy appear or disappear. And they’ll move because their lives and societies are profoundly destabilized by those changes. (Some of them might be you.)
Immigration is inevitable, and U.S. law currently has no rational way to manage it. Everyone knows that; that’s what the fighting is all about. Because they now control the government, the Republicans have to fight it out among themselves.
And fight they are (in language so foul it would have been unthinkable in public life before Trump normalized such incivility). Elon Musk and Vivek Ramaswamy have called for an increase in the use of H-1B visas. MAGA leaders have declared war. Trump, for now, has sided with DOGE.
Everyone Agrees on One Thing: We Need Immigration Reform
But the H-1B system has been subject to substantial criticism, and not just from the MAGA base. Farah Stockman, a member of The New York Times editorial board, recently pointed to her 2013 investigation for the Boston Globe, which found that the H-1B system often supports the employment of foreign software engineers at low wages rather than attracting top talent. That’s primarily because H-1Bs are awarded to applicants through a random lottery, which companies can manipulate (a problem that has since been partially addressed) and because H-1Bs aren’t “portable,” meaning H-1B visa holders can’t move to another company if their employer treats them poorly. Moreover, H-1B isn’t really designed to screen for top talent; that’s what smaller or more cumbersome programs like O-1 and EB-1 are for.
Bernie Sanders has agreed that the H-1B system is abused, saying, “The cheaper the labor they hire, the more money the billionaires make.”
Well, Musk and Ramaswamy don’t entirely deny these charges. Musk admitted that the H-1B system is “broken” and “needs major reform.” He proposed “raising the minimum salary significantly and adding a yearly cost for maintaining the H1B,” making it more expensive to hire foreign than domestic workers.
Ramaswamy, for his part, called the system “badly broken” and proposed “selecting the very best of the best (not a lottery), pro-competitive (no indentured service to one company), and de-bureaucratized.”
The Over-Under
It’s not clear if Trump will continue to support H-1Bs at the expense of support from his anti-immigration base, including deputy White House chief of policy and immigration hard-liner Stephen Miller.
But what’s interesting is that the fight will happen within the Republican party, not across the aisle. That removes the option for the White House and congressional Republicans to simply deny, deny, deny. They have to deal with leaders within their own party – right now including the president-elect himself – who are fighting for immigration reform.
If Musk & Company are going to win this one, it’s already clear that they’ll have to achieve significant reforms to the H-1B system, including higher minimum wages and portability. And chances are good that they will win, because tech entrepreneurs like Musk and Ramaswamy understand where the economy is headed, and how fast, far better than do Miller or Laura Loomer. And Trump knows it. Get behind the curve on tech employment and risk revolt by the Silicon Valley princes who will increasingly control U.S. elections (and everything else).
From H-1B to Eternity
But there’s no reason to think it will stop with the H-1B. If that system gets reformed to truly attract value-add tech talent, companies will want to convert those temporary H-1B visas to permanent EB-2 visas. The total number of employment-based visas available each year – 140,000 – was set in 1990. The U.S. economy has grown from $9 trillion to $22 trillion in that time – and U.S. companies’ performance in the AI race will determine how quickly it grows from here.
That means, to really attract and keep top tech talent, businesses will advocate for other reforms, like adding to the list of Schedule A occupations whose workers can self-petition for a green card, or further updating the Exchange Visitor Skills List to allow more waivers of the two-year home residency requirement for J-1 visa holders. These and other regulatory changes were outlined by President Biden in his October 2023 executive order on AI development.
Once that door is opened, reforms may expand even further. If real immigration reforms are on the table, will agriculture and the service sector advocate for expansion of programs they rely on heavily, like H-2A and H-2B?
Even without direct asylum reform, significant changes to employment-based visas, especially H-2A and H-2B, would have trickle-down effects for humanitarian immigration programs. Some portion of the cases now clogging the immigration courts involve people who came primarily to escape extreme poverty. If our immigration laws provided more opportunity for them to come on H-2A or H-2B visas, immigration judges could devote more resources to those who seek asylum or related humanitarian relief rather.
Even among those with colorable asylum claims, risk and risk-aversion vary. Some people might be willing to accept the risk to themselves to, for example, care for their elderly parents at home, if they were legally entitled to depart and re-enter the United States for seasonal work. Because immigration law currently enacts a three- or ten-year bar for re-entry with prior unlawful presence, their only choice is to pursue their asylum claim and stay permanently.
Keep Your Eye on Technology
I’m curious to see how far this inter-Republican fight on immigration reform will carry us. If we get any reform at all, it’s better than we likely would have done under a divided government.
No matter how this particular battle plays out, the war to reform immigration policy will continue. And, as always, technology will have as much (if not more) to say about who comes in, and how, than law will.