Episode 102: 2024 Year in Review With Stuart Anderson

Episode 102: 2024 Year in Review with Stuart Anderson

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s extended episode, special guest Stuart Anderson joins the BAL Immigration Report to discuss this year’s key developments in immigration policy.

From Dallas, Texas, I’m Rebecca Sanabria.

[The following transcript has been slightly edited from the original audio for clarity.]

Rios: It’s great to have you here, Stuart. Welcome to the podcast. It’s been quite a year, and I’m very much looking forward to hearing your thoughts on a couple of themes that are going to lead into 2025. So, as we look back at 2024, let’s start with your top list of the themes that we observed in ’24 and what that’s going to mean for ’25.

Anderson: The first one we can start with is the degree of normalcy on the legal immigration front. I think what we saw after the Trump years is settling in during the Biden years. In particular, you saw the legal settlement that happened in response to various Trump administration policies.

That legal settlement happened in the middle of 2020, after years of high denial rates that were based largely on memos that the Trump administration had issued. The judges had ruled finally, after seven years of litigation, that these memos violated the Administrative Procedure Act.

As a result, after USCIS kept losing those cases, they had no choice but to have a legal settlement that made them stop those policies. And in fact, it led to denial rates even lower than before the Trump administration, because it got rid of a few policies that had been in practice before Trump took office that the Trump administration used more aggressively.

The Biden administration adhered to the legal settlement. And as a result, the denial rates were very low for H-1B petitions. For initial employment, the rate was 2.5% in FY 2024, according to our analysis. It was even lower for continuing employment, which would be for extensions for employers when they’re extending a current H-1B visa holder. So I think that normalcy is the biggest theme, and we can talk about some of the other developments within that.

Rios: So, one, normalcy. What’s another? We had a handful of them.

Anderson: Another one was the return of the U.S. refugee program. I think a third theme was the key role of immigrants in the workforce. We saw that in a number by the Federal Reserve and others pointing to what happened with immigrants as workers. The fourth theme would be immigration in the election. It played a big role in the election, was talked about significantly. The final thing that certainly points us towards 2025 is Silicon Valley and Donald Trump and what happened with that relationship in 2024 and what it might mean for 2025.

Rios: Well, that’s quite a slate. I can feel every bit of those topics through 2024. Let’s take it at the top. So, returning to normalcy, can you tell me a little bit about the research and what it shows about the restriction on the H-1B visas and how that affects innovation inside the United States?

Anderson: What we found is that when companies aren’t able to hire highly skilled individuals, what ends up happening is they either aren’t able to grow as they would like to or they place more people outside the United States, and the growth and some of the innovation that goes with that growth ends up taking place outside of America — whether it’s Canada, India, China or elsewhere.

That’s what the research shows. But what the data shows from USCIS itself is that because of the low annual limit, which is essentially 85,000 a year — 65,000 plus a 20,000 exemption for graduate students from U.S. universities — what you end up having is hundreds of thousands of people each year denied the opportunity to work because the filings in the H-1B lottery end up exceeding the 85,000 limit.

If you look at USCIS for the FY 2025 cap, they said there were 442,000 unique beneficiaries. What that means is if you take 442,000 and subtract the 85,000, you’re looking at well over 300,000 people that simply were not able to work in the United States, that employers wanted to hire, because of the H-1B annual limit.

Rios: The limit’s been so insufficient since the beginning, and we’ve seen that rollercoaster up and down with just not meeting the demands.

Quick question on cap gap: Employers and university groups support this rule of extending cap gap. It’s the time period between when a student finishes school and when they can begin work on H-1B. What can employers and university groups expect to see? Because I think that’s going to be an important sticking point for employers of H-1Bs.

Anderson: It’ll make a big difference whether the new provisions that were in the H-1B proposed rule by USCIS during the Biden administration end up going forward. And as of now, they have not published that new rule.

If they want the rule to go into effect before Donald Trump becomes president, they have to publish it fairly soon, certainly before the end of the year. And that’s what we’re going to be looking at — there’ll be two different scenarios. So there’s no point getting into that until we know whether or not they’re going to publish the rule and include that provision in there.

Rios: Wait and see obviously there.

Anderson: Yes.

Rios: How about O-1s, national interest waivers and then moving on to PERM before we take on the next topic. What are your thoughts?

Anderson: With O-1s, what you saw is the difference of what happens when you’re able to have guidance that is positive. What we saw during the Trump administration is employers were constantly reacting to negative guidance and negative policy and trying to have some sort of triage policy in place with the help of legal assistance, obviously. But what you saw during the Biden administration on O-1s and national interest waiver, they changed the policy to make it more receptive and employers responded.

If you look at the data, we don’t have all the data for 2024 yet, but in 2023, you saw a significant rise in both O-1A visas and in national interest waivers. And along that, you saw the approval rates stay at over 90%, even though there was maybe some dip in the approval rate as you ended up getting a situation where some people applied that maybe shouldn’t have applied.

Overall, you saw that it was very consistent that even as more people applied, you still had over 90% approval rates, which was good news for employers and good news for the individuals.

Rios: That certainly aligns with the evidentiary standard where we are with a mere preponderance, not to get too legal and throw that into the podcast, but the approval rates by their nature and the evidentiary standard should be high. I think the variations from administration to administration are quite telling.

So I mentioned PERM. Any improvements in processing times in other categories?

Anderson: I think that most employers and their attorneys know that some of the numbers on PERM are still fairly alarming. If you just look at the DOL website, you’ll see that it says that for the average number of days to process PERM applications with an analyst review is 439 calendar days.

That’s a significant amount of time to process PERM. I mean, you could probably write a script and film and release a movie in Hollywood in the amount of time it takes for the Department of Labor to process some of these PERM applications.

Rios: Certainly, felt all those delays.

Switching from normalcy, Stuart, let’s talk a little bit about refugees. That’s a topic that’s been in and out of the news, and obviously there’s some misunderstanding about that topic and what it means both to the country as a country that welcomes immigrants and those who are in trouble with more sensational headlines at the border. Can you tell us a little bit about what we’re seeing in the refugee space?

Anderson: The most important thing to remember about refugees is refugees are individuals that are processed outside the United States. They go through a significant screening process, including proving that they have a well-founded fear of persecution. Then they’re admitted into the United States lawfully. At that point, they can become a permanent resident, usually a year after having been admitted.

That’s different than people who maybe crossed the border and apply for asylum at that point in the United States. That is still legal to do for the most part, despite certain controversies over different rules that have been in place. But that’s a much different process than the process for a refugee who is outside the United States and then comes in.

During the Trump administration, refugee resettlement was essentially shut down for several months, and then the process was burdened in such a way that refugee resettlement agencies, a number of them had to cut staff significantly because the numbers became so low. In fact, by Donald Trump’s last year in office, the resettlement numbers reached historic lows of roughly a few dozen thousand being admitted — 20,000 range.

During the Biden administration, those numbers got built up such that in the most recent fiscal year, they actually reached a resettlement of 100,000 people, which was considered quite an achievement, considering how long it took to rebuild the resettlement process.

There were a number of other innovations during the Biden administration on refugee resettlement. One is private sponsorship. It will be very interesting to see if that continues during the Trump administration. It would be interesting if they take it away, because it’s actually a very pro-immigration argument to say that people are willing to spend their own time and resources to sponsor a refugee. It should be something that even if you’re against immigration, if you think it costs taxpayers money, that you should be willing to do if there’s private sponsorship. Again, the people still have to go through a screening process.

The distribution of the numbers will be interesting to look at going forward if the Trump administration even decides to continue admitting many refugees because in 2024, about 19,000 of the refugees admitted came from the Democratic Republic of the Congo. We were going to talk later about things Donald Trump said during the campaign. For some reason, he was singling out people from the Congo in numerous campaign rallies.

I don’t know if that country came from these refugee numbers and it was just a misappropriation of where people were coming from or it was done purposely, we don’t know. But in addition, there were almost 15,000 Afghans, about 11,000 Syrians and about 12,000 Venezuelans.

That was another innovation of the Biden administration in that they took more refugees from Latin America to help relieve some of the pressure at the border.

Rios: Can you talk a minute about humanitarian parole programs because they played a factor as well?

Anderson: Yes. Humanitarian parole programs were another interesting innovation in that it allowed essentially private sponsorship, but also it was part of an agreement with Mexico, at least on the parts involving Latin Americans. There were other humanitarian parole programs that involved Afghans and Ukrainians, which showed how many Americans were willing to accept people in and help them out.

But what the Biden administration was trying to do with Mexico is have an agreement that said, “Okay, we want you to take some people back from these countries if they’re entering illegally. What do you need from us?” And the Mexican government said, “We need you to be admitting some equal number lawfully.”

So the number they agreed upon was 30,000 and allowed people from Venezuela, Haiti and a few other countries to be able to come in through parole. We found in our research that it resulted in illegal entry dropping by over 90% for those countries that were involved in the parole programs, a much higher rate of dropping in the legal entry from those countries than from countries that did not participate in the humanitarian parole programs, which shows that legal entry is really the key to reducing illegal entry.

Rios: You have to have the avenues for folks to be able to come in and exercise that desire to enter the United States legally, for sure.

Anderson: It’s just important to point out that on day one, the new Trump administration is going to eliminate these programs. So we will get some test of how these programs can be helpful, and it’s not clear if the Mexican government will cooperate at the same level without these programs. It’s not clear if you will see people continuing to decide not to come in illegally if there’s no legal paths to be able to come in legally. So we’re going to get a test of some of these propositions.

On the other hand, we are dealing with a somewhat different situation, whereas post- COVID you had more of a refugee crisis in the region, almost all at once. That was one of the reasons we saw the big increase in people coming to the border, and perhaps some of that has settled down now.

Rios: I think the controversy whenever you’re talking about increasing legal pathways to entry into the United States always ends up in a discussion about the domestic labor and workforce. That’s one of the topics that we want to talk about and the impact immigration has on that. Can you give us a little bit about the trends in labor force growth over the past 30 years to help the listeners understand the composition of the U.S. labor and domestic labor force and its growth and what the trends look like in that area?

Anderson: Well, if you look at the last five years, what we found in our research is that among U.S.-born workers, there are only about 500,000 added to the U.S. labor force, and that was compared to about 3.6 million foreign-born workers. What that tells us is that the immigrant workers were responsible for 88% of the labor force growth in America.

If you count the children of immigrants and immigrants, they’ve been responsible for all of the labor force growth in the last five years. That’s a trend that’s increased significantly over the past two decades, and it’s a trend we’re going to see even more so in the coming decades.

If you look out to say 2050, 2052, by then you’re going to see all of the U.S. labor force growth be immigration, all of it. We can talk for a minute about why that’s important.

Rios: Before we say that, just to clarify what you mean by that labor force growth, you mean a specific demographic, age demographic of folks in the United States that are here versus that same age demographic being foreign born, is that correct?

Anderson: Right. What we’re saying is that if you’re going to have a net increase in workers each year, that in the coming decades, the only way you’re going to have the net increase in workers is to have immigration.

Rios: You said you wanted to mention a little bit more about that — please elaborate.

Anderson: The main function of government, many people believe, is twofold: one, to preserve liberty, and two, to lay the groundwork for a prospering society and a prospering economy.

To have a prospering economy, you need to have economic growth, and to have economic growth, you need a combination of productivity growth and labor force growth. If you don’t have any labor force growth, because in our case, we don’t have any immigration, or we have an insufficient level of immigration, it’s going to be very difficult to generate economic growth.

If you don’t generate economic growth, you have what’s called stagnating living standards. In other words, people living today don’t live much better than people 10 years from now or 20 years from now. So it becomes very frustrating for society, it becomes very frustrating for people, and you see it in other countries that have even the prospects of declining population, where it becomes a scramble to try to fill basic jobs.

As we have an aging society, and everyone probably knows someone who is a senior that needs some sort of assistance to live in a comfortable manner, particularly if they want to stay at home. Immigration is a main source of that type of labor, whether it’s a home health aide or someone who works at a nursing home.

Rios: I think too often we see immigration and the tension between foreign nationals coming to the United States and the U.S. domestic labor force as a zero-sum game that someone’s going to lose and someone’s going to win. What you’re really talking about is a story of growth and the need for that engine and opportunity for folks to be able to have the U.S. grow in the direction that we all need it to. So thank you for that.

I think that takes us into rhetoric in the election. If you start talking about a zero-sum game, you’re going to use language that is inflammatory, unfortunately. I think we saw a little bit of that in the election, maybe more than a little. Can you give us some discussion points on what you saw in the escalation of rhetoric within the election surrounding immigrants?

Anderson: Obviously, during his first campaign, Donald Trump talked quite a bit about immigration, but in many ways he escalated that in this most recent campaign. You saw that during the presidential debate where he said that Haitians were eating the pets of their neighbors in Springfield, something that turned out to not be true.

You saw it when he was claiming that entire towns and quote “villages” were being taken over by migrants, that prisoners were being released on purpose by foreign governments to come into the United States and terrorize America. He said prisoners from the Congo, for example, were coming over to terrorize Americans. There were many fact checks by newspapers that said these statements were not true, but the facts of the statements themselves help lead to policy now that he’s been elected president.

I think that’s the important thing for people to understand is just because a statement may or may not have been true doesn’t mean it doesn’t take on a life of its own when it comes to what someone will do when they’re in office. I think that’s why you’re going to see a follow-through on policies like mass deportation or attempts at mass deportation and much tougher lines at the border.

Rios: I think it’s interesting when you think about the results of the election with U.S. citizen voters who are of immigrant families voting in favor of Trump. I think I’ve heard the discussion point being that they did not see themselves as the folks that were part of this escalation of rhetoric. I think there’s a tension and a disparity in what people are seeing and hearing and maybe not believing because it’s not true and whether or not it has any impact on them at all. It certainly didn’t in the voting booth. So interesting point there. I don’t know if you have any comment.

Anderson: Well, just that we are going to see it played out in policy. A lot of times people have the view that, well, politicians will just say things and it doesn’t really matter because they’re just saying what they want to say to help get elected. And now that they’re in office, they’re going try to be more reasonable and appeal to more people. I think that might be a mistake in this case certainly, because it’s very hard to make the kind of statements that were made during the campaign and just say, “Oh, never mind.”

I think that you’re going to see a very serious effort on all fronts on immigration to try to have restrictions, certainly on what’s deemed illegal immigration. But it’s really going to carry over into other areas because you saw during the campaign a criticism of Temporary Protected Status, and you have hundreds of thousands of people who have Temporary Protected Status from a variety of countries, including Haiti and Venezuela and other countries.

It’s almost a guarantee that the Trump administration will remove that Temporary Protected Status. And at that point, those individuals will have, very likely, no legal right to stay in the United States and then be subject to deportation.

Rios: That really brings to mind policy discussions and whispers into his ear from folks like Elon Musk and podcast comments. Do you think those are going to make a difference on the policies that are coming down the pike?

Anderson: I think we’re going to have to see the first executive orders that come out to know for sure whether there’s going to be a distinction made between the types of people who Donald Trump was attacking during the campaign and the types of people who were employed by those who were helping to fund his campaign — and who were even appearing on stage with him at times.

And I’m talking about Elon Musk, as you mentioned, and some other people in Silicon Valley who were disgruntled with the Biden administration over a number of policies, some of them involving the FTC and antitrust and some of the attacks on tech companies. Also, some of the attacks on the whole startup infrastructure, because what the FTC was going after, which bothered venture capital firms quite a bit, was saying that big tech companies can’t buy smaller tech companies just because they have promising technology.

For the VCs, what that meant was unless a company goes public and gets onto the stock market, they may not be able to cash out their investments. In that case, why would they be investing in companies in the first place? That was one of the things that didn’t get reported a lot, but it was one of the things that really bothered a lot of people in Silicon Valley.

Another thing that bothers people in Silicon Valley is when they can’t hire the people they want to hire. That is where you’re going to see the rubber meets the road. Will Donald Trump follow through in any way, even in spirit, what he said on that podcast being run by some Silicon Valley investors who had just had him over for a fundraiser? He said that he would like to give green cards to people who graduate from U.S. universities as international students.

That would obviously be the most pro-immigration policy that we’ve seen in this country in decades that anyone can remember. And it runs quite a bit in contrast to what we saw during the first Trump administration, which saw not only high denial rates for H-1B visas, but a whole series of actions regulatory-wise that were blocked in court; for example, [the administration] wanted to price H-1B visa holders and employment-based immigrants out of the labor market.

Rios: Stuart, thank you for taking us through all of these themes of 2024 and what we can expect in 2025. I think it’s safe to say that everyone’s holding their breath and we’ll find out exactly which direction it goes.

But this has been a fantastic conversation. I really appreciate your time.

Anderson: Thank you for having me.

You can review more of the year’s immigration news at bal.com.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

*This podcast was originally recorded on Dec. 3, 2024.

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The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.