Episode 43: A looming government shutdown, extended EADs, immigration and national security

It’s Sept. 28, and this is your BAL Immigration Report.

• The government is on the verge of a shutdown.
• The Biden administration announces new immigration measures.
• And we look at the link between a good immigration policy and national security and global competitiveness.

“When I started in this field, other countries, they really did not think that much about how immigration could benefit their country. And over the last couple decades, that has changed dramatically.”

—Lynden Melmed, BAL Partner

U.S. news

Shutdown would affect immigration services

Some immigration services will come to a halt if the federal government is unable to avert a shutdown by midnight on Oct. 1. The Department of Labor would suspend operation of its immigration functions and would not accept PERM, prevailing wage or labor condition applications. Most U.S. Citizenship and Immigration Services and State Department services would continue but could be delayed.

Some immigration programs would be unavailable until reauthorized by Congress, including E-Verify, the Conrad 30 waiver for J-1 physicians and the Special Immigrant Religious Workers program. BAL will continue following events in Washington, D.C., and will provide updates as information becomes available.

New immigration initiatives

The Biden administration announced new immigration initiatives last week, including a plan to extend the maximum validity of some employment authorization documents, or EADs.

U.S. Citizenship and Immigration Services will extend EADs to five years for certain noncitizens, including those admitted as refugees or asylees, recipients of withholding of removal, and applicants for asylum, adjustment of status or cancellation of removal. The Department of Homeland Security said the changes will reduce USCIS’ workload and improve EAD processing times.

US news roundup

• The Department of Homeland Security announced the extension and redesignation of Temporary Protected Status for eligible Afghans and Venezuelans.
• S. Citizenship and Immigration Services announced to that it will exempt the biometrics service fee for all I-539 applicants beginning Oct. 1.
• S. Customs and Border Protection announced a new Global Entry mobile app designed to further ease U.S. entry procedures for eligible individuals.

Spotlight

Part two of an interview with BAL Partner Lynden Melmed, head of BAL’s Government Strategies team and one of the nation’s preeminent experts on U.S. immigration policy.

BAL Immigration Report: Last week on the BAL Immigration Report, Melmed shared his analysis of why comprehensive immigration reform has proved so difficult to pass in Congress and how well the Biden administration is doing to address high-skilled immigration through regulation. This week, he discusses immigration and national security.

Melmed and the Government Strategies team are active in several business organizations that lobby for business-friendly immigration policies. Melmed, who served as chief counsel of U.S. Citizenship and Immigration Services before joining BAL, is also part of a group called the Council on National Security and Immigration. The group is made up of national security experts across the political spectrum who served in Congress, the military, the White House, the Department of Homeland Security, the Department of Justice and other government agencies. The organization believes that broad-based immigration reforms are necessary for America’s security needs and long-term national interests, including its economic future. Melmed said the group includes some individuals who are not primarily associated with immigration, something he sees as incredibly important.

Melmed: I joined the government in 2002, immediately after 9/11. Those first few years, it was a clear recognition about how immigration, including legal immigration, could affect the U.S. security posture. Now, when we look ahead to the next 10 or 20 years and what the challenges are going to be from a security and economic competitiveness standpoint, it’s still just as important as it was back 20 years ago, but the issues are different. So that organization, the leaders who pulled it together, should be recognized for putting in the effort to bring those voices together and lend their expertise and reputation to the debate, because sometimes in immigration, we let some other issues move to the top of the list of things that we focus on, and ultimately security and competitiveness really need to be in the top two or three concerns of Congress as they try and improve the system.

BAL: Melmed elaborated on the role immigration policies can play in boosting national security and economic competitiveness, particularly at a time when other countries are becoming more aggressive in their attempt to draw high-skilled foreign workers.

Melmed: Certainly, historians can speak to this better than I can, but I don’t think this is the first time we’re confronted as a country with a situation where individuals with advanced knowledge of science and technology ultimately become key players in the global security apparatus — we saw that in World War II. And we’re in the middle of an environment right now where everything from the technology that we use day in and day out as citizens, to the technology that’s used in cybersecurity, and then just overall economic strength — all of those things are tied to the foreign nationals who are going through the immigration system right now. So if we have an immigration system that is inefficient, that is overly restrictive in terms of facilitating the U.S.’s ability to attract and retain that talent, we’re necessarily handicapping ourselves in that global race for talent. And the one thing that I would say, now that I’ve got a few decades of experience in immigration policy, is that when I started in this field, other countries, they really did not think that much about how immigration could benefit their country. And over the last couple decades, that has changed dramatically. Both our allies and our competitors are now using the immigration system to give themselves a leg up on advanced technologies and security.

To use a real, current example would be our ability to develop semiconductor manufacturing in the United States. It’s a key strategic issue for the United States to have that capability stateside here. Congress has recognized it — they funded money through the CHIPS program for the development of manufacturing in the United States — but they have not yet done anything to facilitate immigration in support of that manufacturing initiative. And so that’s an area where there’s harmony between our economic and our security interest in semiconductor manufacturing, and yet we haven’t yet developed the immigration solution that’s going to put the U.S. in the best posture and really maximize those financial investments. That’s a place where both at an administrative level and legislative level, more work needs to be done to ensure the U.S. success that will ultimately have security benefits.

BAL: We asked Melmed whether the challenge he described can be solved through improvement of the U.S.’s existing high-skilled immigration system or whether new programs should be developed.

Melmed: Well, that’s a great question. And I think what you’re asking is, can we go about just improving our regular system enough and in a way that that also solves the issue that I just described? Or do we need to think differently and come at the problem differently with new policy solutions, whether that’s new visa categories or new regulatory initiatives? I think the answer is candidly yes and yes. There’s no question that for many high-skilled workers, that those companies could use the existing immigration system to achieve their goals if that system was improved — most notably, the green card backlog and the ability to retain foreign graduates here in the United States. But I also think that there’s been a lot of development in the White House Office of Science and Technology Policy, putting out good ideas, exploring new visa options to get at the problem through a new lens. I don’t think there’s been a silver bullet yet. There may never be a silver bullet solution. But I like the idea that they’re thinking and we’re trying to brainstorm with them on creative solutions, because sometimes then that allows you to escape some of the entrenched politics of the existing visa categories and to go into an area where there’s fresh minds and new options for people to consider.

BAL: Melmed will discuss U.S. national security and global competitiveness at a BAL Community event next week with Semiconductor Industry Association representatives Eric Hadland and Rebecca Peters. For more information about the event or BAL Community, visit community.BAL.com.

Global news

India suspends visa processing for Canadians

Indian authorities suspended visa processing for Canadian nationals. The move was part of escalating tensions between the countries over Canada’s allegation that the Indian government was involved in the murder of a Sikh activist and naturalized Canadian citizen.

All categories of Indian visa issuance will be halted for Canadians until further notice, including for Canadian nationals living in a third country. The suspension will not affect Canadian citizens who already hold valid Indian visas or who are registered as Overseas Citizens of India; these individuals remain eligible to travel to India. Canadian nationals who are currently in India can apply to renew their visas according to the rules governing their visa categories.

For its part, Canada has pulled diplomatic staff from its consulates in India but has not halted visa processing.

ETIAS launch delayed

Recent press reports say the launch of the European Travel Information and Authorization System, or ETIAS, will be delayed once again. ETIAS is an electronic travel authorization program for nationals of 66 visa-exempt countries, including the United States, that will eventually be required to enter 30 EU or Schengen area countries.

EU authorities have yet to provide an official statement about the ETIAS delay, but reports said it is now expected to launch sometime in 2025.

Global news roundup

• The European Commission adopted more favorable rules for issuing multiple-entry visas to Kuwaiti nationals.
• Ireland plans to issue Resident Permit cards to Ukrainians and other third-country nationals who have been granted temporary protection.
• Israel welcomed its addition to the U.S. Visa Waiver Program.

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