SCOTUS immigration decision will have ‘chilling’ economic consequences
On May 16, the Supreme Court, in a closely watched immigration case, ruled that federal courts lack jurisdiction to consider factual issues arising from discretionary recourse in immigration proceedings.
In other words, even if a plaintiff believes an error was made in dismissing his claim, he has virtually no ability to seek judicial review.
From a legal point of view, critics believe that the majority argument in Patel vs. Garland ignores the basic principles of statutory interpretation. From a policy perspective, critics believe that this restriction on judicial review will have serious consequences for immigrants in deportation proceedings.
However, given the current labor shortages, Patel could also have economic consequences. Whether it’s labor shortages, supply chain disruptions, or the “Great Quit,” immigrants are key to the solution. Unfortunately, immigrants are already traumatized by the historic policies and backlogs of the Trump era.
Now, following Patelthe perception that a factual error could result in the denial of a green card application without legal recourse will only compound this trauma.
If this decision deters highly skilled workers from accepting permanent job offers in the United States and immigration levels fall even further as a result, the current economic situation could worsen.
The unprecedented decline of legal immigration
The Trump administration has issued 400 executive actions making it harder for immigrants to live and work in the United States. The H-1B denial rate of 6% before Trump took office hit an all-time high of 24% in 2018, falling immediately to 4% in Biden’s first year in office.
Overall, the number of new international students enrolling in US universities fell by 45.6% between 2019 and 2021. At the same time, Canada began to relax its immigration policies. Immigrants who once wanted to live and work in the United States opted for Canada instead. American companies began to receive requests from their immigrants to move to Canada, especially from H-1B workers who feared that their H4 spouses would lose their work permits.
In contrast to the decline in the United States, Canada’s skilled immigration program grew by 75% between 2017 and 2019. Canada emerged as the number one new destination for international workers, beating the United States for the first time in decades.
Meanwhile, in 2020, Covid-19 has crippled international travel and forced the closure of borders and embassies as well as travel bans. As a result, American immigration further declined in volume.
For example, the number of H-1B visas issued fell to less than 62,000 in 2021 from 190,000 in 2020. Overall, the United States received 630,000 fewer international workers, representing a 75% drop from its peak in previous years.
As the world grappled with Covid, a new topic began to dominate immigration conversations: backlogs.
Delays in processing immigration applications have reached unprecedented levels. As of November 2020, the backlog of employment-based immigrants had exceeded 1.2 million applicants. As of April 2022, U.S. citizenship and immigration services had 8.5 million ongoing businessof which 5.3 million were pending beyond published processing times.
Economic “chilling effect”
The United States is currently experiencing the largest labor shortage since World War II. In January 2022, the United States had 11.3 million jobs to fill but not enough workers to fill them.
A key factor in this labor shortage is the decline in the number of legal immigrants resulting from the aforementioned factors. The U.S. workforce is estimated to have about 2 million fewer immigrants compared to pre-pandemic levels, creating significant labor shortages across a wide range of industries.
For instance, open STEM positionsoutnumber skilled workers by 3 million, and it is estimated that the country will have a doctor shortage139,000 physicians by 2033. These labor shortages lead to inflation, reduced production, and supply chain disruptions.
Now is not the time to discourage immigrants from applying for immigration benefits. Events of the past six years have already raised concerns that immigrants are less likely to accept positions in the United States due to a combination of US immigration policies and more attractive alternative destinations, such as Canada.
But the arrears took those concerns to the next level. Take, for example, the fate of immigrants from India.
For Indian immigrants, the average US green card course is over 15 years from start to finish. An Indian green card applicant faces a wait time of over a decade before they can even submit the application. Backlogs add even more delays to an already lengthy process.
Decisions such as buying a home are more difficult because immigrants do not know when they will become permanent residents. Additionally, the prospect of their US-born children being forced to leave the US if the parents’ green card application fails is terrifying for immigrant parents.
Loss of skilled workers
Hence the deterrent effect: if an immigrant faces a journey of 3 to 15 years and more until he obtains a green card in a system where, under Patela refusal has no legal recourse, why would they take the risk of choosing the United States rather than another country with more favorable immigration laws?
Although the application of Patel is still restricted in future litigation, the mere perception of risk may deter immigrants from pursuing a green card. If immigrants are discouraged from seeking a green card, they are certainly less likely to accept job offers.
If this happens, the country has no hope of closing the gaps caused by massive shortages. In sum, the impact of Patel cannot be seen in a vacuum. In addition to the legal and political consequences, we must also prepare for the possibility of economic consequences.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Hiba M. Antwerp is a partner in the Erickson Immigration Group and an adjunct professor at George Washington University School of Law. At EIG, she leads an international team that manages clients in various sectors and advises corporate clients on complex immigration matters resulting from restructurings, including mergers and acquisitions.