Trump and Kushner’s ‘merit-based’ immigration plan fails to propose the smart reforms needed to modernize and improve U.S. labor migration

One of the elements in the Jared Kushner immigration plan detailed by in Donald Trump’s speech on Thursday in the White House Rose Garden would change the proportion of green cards to vastly increase the share issued in the employment-based (EB) preference categories.

“Green cards,” as they’re commonly referred to, are immigrant visas that confer lawful permanent resident status on foreign citizens and allow new immigrants to remain in the United States permanently and obtain citizenship after five years. Trump has proposed to change the EB share of the total 1.1 million green cards issued every year from 12 percent to 57 percent and claims it would make the system more “merit-based.” This would be achieved by reducing the numbers of visas allocated based on family ties (66 percent in 2017) and the Diversity Visa lottery (4.6 percent in 2017) and increasing the EB category, and the EB visas would be renamed “Build America Visas” and prioritize advanced education and skills, and rank potential immigrants according to a new points system. Trump also noted that “we’d like to see if we can go higher” than 57 percent.

In reality, although only 12 percent of current green cards are allocated for new immigrants arriving with jobs or skills, many of the new green card holders coming to the United States through other categories are also well-educated, including in the family and diversity preferences. And within the EB categories, very few migrants are able to come to the United States as permanent immigrants with a path to citizenship if they work in lower-wage, lesser-skilled occupations. The EB third preference caps the number of “unskilled” workers at 10,000 per year, but not even 50 percent of that cap has been used in the past five years. In other words, the system is already dominated by immigrants with skills and degrees and quite exclusionary towards those without them. We should rethink the system rather than double-down on it.

As some commentators and Democratic legislators have noted, the Trump/Kushner proposal is probably “dead on arrival” and unlikely to translate into legislation that can pass the House and Senate, in part because it lacks a proposal for legalizing the 11 million unauthorized immigrants or the subset of them that are protected by DACA and TPS. Nevertheless, it is worth examining because Trump is using the broadly-outlined plan devised by his son-in-law as a platform to unite the Republican party on immigration and show that they are “for” something on immigration, and not just against every conceivable type of immigration.

From the little we know so far, Trump and Kushner’s proposal on what they call merit-based immigration is misguided at best. Rather than obsessing over only allowing “high-skilled” immigrants into the United States, we should have an immigration system that continues to reflect the values of family reunification and adequately fulfills our humanitarian obligations, and that is flexible enough to adjust to the skill mix and levels of employment-based immigration that the United States needs at a given point in time, depending on the health of the economy and according to labor market needs. If some day Labor Department data point to a shortage of carpenters and home health aids, having a system that only allows in engineers and computer programmers won’t help fill those jobs or grow the economy. We also need a system where determinations like these are made by economists and statisticians, not employers in closed door meetings with the first family.

To achieve this, instead of making the changes Trump proposes, Congress and the president should enact legislation creating a permanent commission on immigration and the labor market that could better align the aspects of the U.S. immigration system that have to do with employment with actual economic needs. A commission could advise Congress on how to how adjust annual employment-based immigration levels and improve the system overall, and a commission could help ensure that future labor migration flows are based on evidence, data, and market needs instead of unsubstantiated claims of labor shortages. The commission’s work could also focus on improving immigration data, studying other aspects of the system that need reform, and outlining strategies for elevating labor standards through smart immigration policies that help lift the floor for all workers. A good example of a successful commission is the United Kingdom’s Migration Advisory Committee, or MAC. (Academics Phil Martin and Martin Ruhs have written about the lessons the United States should learn and copy from the MAC.)

A number of organizations, distinguished study groups, and unions have endorsed the commission idea, including the Economic Policy Institute, the Migration Policy Institute, the AFL-CIO, the Independent Task Force on Immigration and America’s Future, the Council on Foreign Relations’ Task Force on U.S. Immigration Policy, and the Brookings-Duke Immigration Policy Roundtable. Kushner’s team was reported to be considering including some version of an immigration commission as part of their proposal, but it appears to not have made the final cut.

By focusing on making green cards only available for highly-skilled and educated workers, Trump has made it clear—but without saying it explicitly—that he only wants to allow low-wage migrant workers into the United States through temporary visa programs—like the ones he uses to hire guestworkers on his golf courses and at his wineries: the H-2A and H-2B visa programs. In H-2A and H-2B, migrant workers are captive, can be underpaid and earn approximately the same wages as undocumented workers, are vulnerable to trafficking, and have no path to permanent residence and citizenship. The Trump/Kushner plan doesn’t address these controversial programs at all.

Most migrant workers in H-2A and H-2B come from Mexico, and evidence from news reports suggest that Trump’s companies prefer hiring H-2A and H-2B workers over U.S. workers who apply. This is the height of hypocrisy considering that Trump is doing everything in his administration’s power to demonize, deport, and exclude Mexican migrants from the United States, while simultaneously using these visa programs as a corporate executive and expanding them through his executive powers.

Under Trump and Kushner’s proposal, very few immigrant workers without college degrees would have the chance to enter the United States permanently and become citizens. Their only option would be to come through employer-controlled visa programs where the best they could hope for is to be permanently temporary. A few hours before Trump’s Rose Garden speech, House Speaker Nancy Pelosi hinted at another reason why the Trump/Kushner plan is a bad idea, calling their version of merit-based immigration “condescending” because it fails to respect and devalues the contributions of families and immigrants who don’t have college degrees.

We need a smarter immigration system that preserves family and humanitarian immigration and creates a data driven approach to labor migration that uplifts labor standards, meets true labor market needs, and most importantly provides migrant workers—of all skill levels—with equal rights, fair pay, and a path to permanent residence and citizenship. From the looks of what has been proposed so far, the Trump/Kushner immigration plan falls short.