We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States. One of the most transformative changes that BSEOIMA will bring, if enacted, is a merits-based points system. For previous blogs on BSEOIMA, we refer readers to Workable or Unworkable: The H-1B and L-1 Provisions in BSEOIMA, s. 744 and Some Preliminary Observations Regarding The Proposed Border Security, Economic Opportunity And Immigration Modernization Act.
There will be a two track merits-based system under BSEOIMA. The first track points-based merits system will have 120,000 to 250,000 merit-based visas. The second track non-points merits system applies to long term residents, and this track does not have a cap. By creating a points system, Congress has voted “No Confidence” in the labor certification program as a way to provide US employers with the talent they and the economy needs. This lack of confidence is also evident in other parts of BSEOIMA where STEM graduates with advanced degrees can be directly sponsored for green cards by employers without going through the arduous labor certification process.
Perhaps, it has also dawned on Congress about the futility of the labor market test that is conducted on behalf of a foreign worker for green card sponsorship who is already hired by the employer. A good faith test of the labor market even if conducted by a well-intentioned employer will likely fail, at least from the Department of Labor’s (DOL) view, if the foreign worker is already in the position. The statutory basis for labor certifications, which in its current form is known as PERM (Program Electronic Review Management), is provided in INA §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. Out of this simple mandate in the INA, the DOL has built a complex regulatory structure that has delegated to the employer to conduct a good faith text of the US labor market. While in the real world an employer selects the best workers based both on an objective and subjective set of criteria, the DOL requires employers to demonstrate that only minimally qualified workers are available for the position. The labor certification process neither compels nor incentivizes an employer to hire the best workers, but it also does not result in the creation of US jobs. If a minimally qualified worker applies for the position, all that happens is that the labor certification cannot be filed.
The first track points-based system moves away radically from the labor certification system as it allows a foreign national to apply for permanent residency without a specific employer’s sponsorship. It will take effect five years after the enactment of BSEOIMA. During the first four years from enactment, visas shall be made available to the backlogged EB-3 preferences. From the fifth year onwards, 50 % of visas shall be allocated to applicants who get the highest number of points under Tier 1. The remaining 50% of visas shall be allocated to applicants who get the highest number of points under Tier 2.
Under Tier 1, points will be assigned as follows:
- 15 points for a doctoral degree
- 10 points for a master’s degree
- 5 points for a bachelor’s degree from an institution of higher education in the US
B. Employment Experience
No more than 20 points can be allocated as follows:
- 3 points for each year an alien has been lawfully employed in a zone 5 occupation
- 2 points for each year the alien has been lawfully employed in a zone 4 occupation
C. Employment Related To Education
An alien who is in the US and is employed full time or has an offer of full time employment in a field related to the alien’s education
- In a zone 5 occupation shall be allocated 10 points
- In a zone 4 occupation shall be allo0cated 8 points
An alien who is an entrepreneur in a business that employs at least 2 employees in a zone 4 or zone 5 occupations shall be allocated 10 points
E. High Demand Occupation
An alien who is employed full-time or has an offer of full-time employment in a high demand 1 shall be allocated 10 points
F. Civic Involvement
An alien who has attested that he or she has engaged in significant amount of community service shall be allocated 2 points
G. English Language
An alien who received a score of 80 or more on the Test of English as a Foreign Language, or an equivalent score on similar test, shall be allocated 10 points
H. Siblings and Married Sons and Daughters of Citizens
An alien who is the sibling of a citizen of the United States or who is more than 31 years of age and is the married son or married daughter of a citizen of the United States shall be allocated 10 points
An alien who is:
- between 18 and 24 years of age shall be allocated 8 points
- between 25 and 32 years of age shall be allocated 6 points
- between 33 and 37 years of age shall be allocated 4 points
J. Country of Origin
An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.
Under Tier 2, points will be assigned as follows:
A. Employment Experience
An alien shall be allocated 2 points for each year the alien has been lawfully employed in the US, for a total of not more than 20 points
B. Special Employment Criteria
An alien who is employed full-time, or has an offer of full-time employment
- in a high demand tier 2 occupation shall be allocated 10 points
- in a zone 1 occupation or zone 2 occupation shall be allocated 10 points
An alien who is or has been a primary caregiver shall be allocated 10 points
D. Exceptional Employment Record
An alien who has a record of exceptional employment shall be allocated 10 points
E. Civic Involvement
An alien who has demonstrated significant civil involvement shall be allocated 2 points
F. English Language
An alien who received a TOEFL score or an equivalent score on a similar test:
- 75 or more shall be allocated 10 points
- More than 54 and less than 75 shall be allocated 5 points
G. Siblings and Married Sons and Daughters of Citizens
An alien who is the sibling of a citizen of the US or is over the age of 31 and is the married son or married daughter of a citizen of the US shall be allocated 10 points
An alien who is:
- Between 18 and 24 years of age shall be allocated 8 points
- Between 25 and 32 years of age shall be allocated 6 points
- Between 33 and 37 years of age shall be allocated 4 points
I. Country of Origin
An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.
There is also a second merit based track system that does not depend upon points beginning October 1, 2014. The second merits non-points system cleverly acts as a safety valve to reduce the existing backlogs in the system, and also ensures that we do not experience the same horrendous backlogs as we see under the existing system. People whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis. Those who have been lawfully present for not less than 10 years will also be eligible for this non-points based side of the merit-based visa system. Registered Provisional Immigrants (RPIs) will be able to adjust status based on 10 years of lawful presence under this second merit non-points track system.
Labor certification will undoubtedly survive even after BSEOIMA as beneficiaries under the EB-2 and EB-3 preferences still need an employer to obtain labor certification. Moreover, not everyone will be able to make it under the merits system, such as ethnic cooks for example, who may not even need to speak English but are still vital for the success of the restaurant. The merits based points system will compliment labor certification if BSEOIMA is enacted. Congress, and probably DOL itself has realized, as the authors have previously noted in their prior article, that the very notion of a “good faith” recruitment seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in PERM do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.
As the PERM labor certification appears to wither in BSEOIMA, giving way to a merits based points system, one can also learn from the Canadian points system where the points based system first started. A points based system may not necessarily be ideal. It could potentially encourage PhDs to win the highest points only to immigrate and not find jobs that are commensurate to their skills. Moreover, gaining the requisite points under specific criteria are not an end unto themselves, and that their effectiveness cannot be measured apart from the overall ability of the new immigrant to integrate into the economy and culture of the receiving nation . It is this that ultimately will determine if the immigrant will be put into a position to succeed for themselves and their adopted home.
A Maclean’s article on the failure of the Canadian points system is revealing. According to a study conducted by the Organization for Economic Co-Operation and Development (OECD), only 60% of Canadian immigrants found jobs in their chosen areas of specialization compared to an OECD average of 71%; in matching up skills with employment, Canada ranked near the bottom, worse than Estonia, Italy, Spain and Greece.
The labor certification system seeks to match the employer’s demand with the foreign national’s skills. Even here, however, it seems clear that PERM is not the best way for employers to express their interest in potential new hires. An independent assessment of language and credentials after which applicants can be placed in a pool for employers to draw from may be a promising third way between a free-standing points system (Canada) and immigration linked to specific job offers (USA). This “expression of interest” as applied in Australia and New Zealand avoids the frustrations of the Canadian approach and the economic illiteracy of PERM.
The frustrations of the Canadian model suggest strongly that recruitment of even the most skilled knowledge workers cannot be divorced from domestic demand. Not only has this produced long waiting lines in Canada but the bias towards highly educate STEM professionals has deprived those industries which are booming, such as the oil fields in Alberta, of the blue collar talent that they so vitally need. According to a New York Times article that was written when the points based system was first proposed in the failed 2007 bill:
Part of the backlog in Canada can be traced to a provision in the Canadian system that allows highly skilled foreigners to apply to immigrate even if they do not have a job offer. Similarly, the Senate bill would not require merit system applicants to have job offers in the United States , although it would grant additional points to those who do. Without an employment requirement , Canada has been deluged with applications.
According to a Huffington Post article, the chronic underemployment of advanced degree professionals in Canada underscores the need for employers to play an active role in the immigration selection process. Since 2004, the Provincial Nominee Program (PNP) where provinces sponsor immigrants to designated job vacancies has expanded six fold. In Australia, 81% of immigrants obtained employment in their chosen disciplines within six months. A pure points system not anchored to what employers are looking for will produce lower income and higher unemployment. Once again, according to the Maclean’s article, a comparison with Canada is instructive:
In contrast to the Canadian experience, immigrants to the US have virtually closed the income gap with American-born workers. In 1980, US immigrants earned about 80 per cent of American-born workers, a gap that was roughly the same in Canada. By 2011, US immigrants earned 93% of native-born workers, while foreign-born college graduates now out-earn their American counterparts. During the last recession, the unemployment rate for foreign-born university grads in Canada topped out at 8.4 per cent in 2010( Among those who lived in the country less than 5 years, it was more than 14 per cent.) By comparison, unemployment among foreign-born graduates in the US was 4.4 per cent.
BSEOIMA keeps intact the traditional labor certification system under the employment-based second and third preferences, but also introduces a merits based points and non-points system. Within the merits-based points systems, plenty of points will be given to those who have jobs, offers of employment, and even US-based employment in the area of the alien’s education, but it does not require the employer to file a “pointless” labor certification (no pun intended!). Under the non-points merits based visa system, long term residents waiting in the pipeline for a green card can avail of visas, thus creating a safety valve in case of backlogs. BSEOIMA thus provides several pathways for foreign nationals to obtain permanent residence without obsessively focusing on labor certification. The goal we seek is not to replace PERM with a points system but to find an alternative to both that is ethical, transparent and realistic providing the economy with the human capital it needs to grow but doing so in a manner that allows immigrants to be productive while respecting the legitimate interests of US workers.
We now have a new world. The merit based system in the bill provides this missing alternative. BSEOIMA is a transitional document and the number of options to obtain green card status without labor certification is bound to grow in future years. The virtue of BSEOIMA is that it is hybrid system combining a points system with employer selection. This offers the best of both worlds, and we refer readers to a Migration Policy study that thoughtfully provides models for such hybrid systems. As the global competition for top talent in science and technology intensifies, in order for the United States to attract and retain the best and the brightest, PERM will increasingly be relegated to a less important place, although it may still be important for certain occupations who cannot avail of the new pathways to permanent residency. PERM will not disappear but it will never again enjoy the dominance of old. It is this third way that will define America’s immigration policy in the 21st century.
This post originally appeared on The Insightful Immigration Blog on May 13, 2013.
The Senate Immigration Bill, S. 744, entitled the Border Security, Economic Opportunity, and Immigration Modernization Act (BSEOIMA) has been applauded by immigration advocates for bringing much needed changes to the broken immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions. We refer readers to David Isaacson’s insightful blog post, SOME PRELIMINARY OBSERVATIONS REGARDING THE PROPOSED “BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT.
Unfortunately, the H-1B visa, and accompanying L-1 visa proposals in BSEOIMA have not been received with the same jubilation as other parts of S. 744. The main concern on everyone’s mind is how the bill would deal with the shortage of H-1B visa numbers. For FY14, which commences on October 1, the H-1B cap was reached on April 5, 2013. S. 744 increases the H-1B cap undoubtedly, but this increase is accompanied by changes to the H-1B and L visa programs, which may make it more difficult to obtain H-1B and L visas quickly. A nonimmigrant visa ought to provide a quick pathway for a much needed worker to be employed in the US. This BSEOIMA fails to do.
BSEOIMA increases the H-1B ceiling to 110,000, which could go all the way up to 180,000. However, any increase or decrease in H-1B visa numbers cannot be more than 10,000 visas from the previous year. The market based adjustments from year to year, according to the succinct BAL summary, will be based on the number of H-1B visa petitions in excess of the cap and the average number of unemployed persons in “management, professional and related occupations” when compared to the previous year. Moreover, BSEOIMA will also increase the Master’s cap from 20,000 to 25,000, but this new cap will only be applicable to those who have graduated from universities with advanced degrees in STEM (Science, Technology, Engineering and Math) fields. This would be a significant improvement from what we have today, which is a paltry 65,000 H-1B visas plus 20,000 for advanced degree holders, which under current law is not restricted to only STEM degree holders.
The Society of Human Resource Management found in a recent national survey that 2/3 (66%) of employers hiring full-time staff experienced difficulty in recruiting scientists, engineers, and cutting-edge technical experts, an increase from 52% in 2011. Until this gap between demand and supply is closed, the US economy cannot reach its true potential. The current H-1B base cap dates back to 1990 when the American economy was only 1/3 its current size and when the importance of STEM talent was nowhere as evident as it is today. Our H-1B policy predates the full impact of the Internet and the transition to a knowledge based economy. While we welcome the concept of an H-1B cap escalator, it is overly complex and its lack of precision will not accurately predict or reflect the actual and ever-rising demand for world-class expertise. For this reason, Congress would be well-served to adopt the methodology set forth in the bipartisan Immigration Innovation (I-Squared) Act (S. 169) which simply and elegantly links H-1B annual adjustments to how fast the H cap had been reached that same year.
Unfortunately, in exchange for an increase in H-1B visas to 110,000, with further adjustments based on a market based adjustment formula, BSEOIMA imposes significant restrictions to accessing the H-1B visa for all employers, as well as L-1 visas for some employers, which will adversely affect corporate immigration practice.
Unlike the 4 level wage system we have today, BSEOIMA will replace it with 3 wage levels, and all non-DOL wage surveys must be specifically sanctioned by DOL. The new Level 1 wage shall be the mean of the lowest two thirds of wages surveyed but can’t be less than 80% of the mean of the wages surveyed. This is clearly wage inflation with a vengeance. Dependent employers will only be able to pay new Level 2 wages, which is the mean of all wages. The third level shall be the mean of the highest two thirds of wages surveyed.
All employers will have to now attest that they have recruited for the position before filing an H-1B petition via an internet posting for 30 days, including advising where applicants can apply for the job. Dependent employers will have to undergo additional recruitment steps. The employer must offer a job (not just decline to hire the H-1B beneficiary) to any US worker who applies and who is “equally or better qualified.” One can imagine how this will be interpreted by the DOL when an employer takes the top graduate of Wharton in a Bachelor’s program and turns down a U.S. applicant with an MBA from the University of Podunk. Or, a law firm employer offers a position to a JD from a national law school over someone with comparable grades and achievements from a local law school. Will an employer dare to take the chance that might not be viewed as legitimate by the DOL?
There is more. The period within which an H-1B complaint can be brought against the H-1B employer is lengthened from 12 to 24 months, even when DOL itself complains or when the source remains anonymous. This can also encourage malicious complaints from restrictionist organizations, and is bound to result in many more H-1B investigations especially when the bill authorizes annual H-1B compliance audits for any employer with more than 100 employees if more than 15% are in H-1B status. The advertisement must contain all requirements including the higher than market wage salary. The compelling rationale for all this is the obvious desire to discourage H1B sponsorship by making it more expensive, more invasive, and less concerned with protection of business norms.
Non-dependent employers will also be subject to the non-displacement attestations, which until now have only been applicable to dependent employers or willful violators. Employers will need to attest that they have and will not displace a US worker within the 90 day period before and after filing an H-1B visa petition, but they will not be subject to such a non-displacement attestation if the number of US workers employed in the same O*Net job zone as the H-1B worker have not decreased during the past one year ending on the date of the filing of the labor certification application. Dependent employers will be subject to a longer non-displacement period of 180 days, and they will not be able to take advantage of the non-reduction of workforce in the same job zone exception available to non-dependent employers.
We saw when similar recruitment and non-displacement attestations were imposed on certain financial institutions and other entities that were bailed out by the US government under the Troubled Asset Relief Program (TARP) that they stopped using the H-1B visa program and even rescinded offers to foreign MBAs who were graduating from top business schools.
BSEOIMA seems to abhor the notion of “outplacement” of H-1B workers and L-1 workers, even while assigning workers to third party client sites is part of the business model of certain industries such as IT consulting. Dependent employers may not “place, outsource, lease, or otherwise contract for services or placement of an H-1B nonimmigrant employee.” A non-dependent employer must pay $500 if “outplacing” an H-1B worker. This model has been readily embraced by American companies, and provides efficiency by allowing companies to utilize skilled IT resources whenever needed. Consumers benefit, and it also allows companies to hire US workers higher up in the food chain.
The definition of “Dependent Employer” will remain the same: 1) Employer with 25 or fewer full time employees who hire more than 7 H-1B nonimmigrants; 2) Employer with at least 26 but not more than 50 full time employees who hire more than 12 H-1B nonimmigrants; 3) Employer with at least 51 full time employees who hire at least 15% of H-1B nonimmigrants.
Moreover, BSEOIMA seeks to ultimately bar a category of so called “super dependent” H-1B or L-1 employers by FY 2017 from filing new H or L petitions if more than 50% of their workforce are in H-1B or L status and hire 50 or more employees. For the first time, there will be a restriction on L employment too as a result. There is a sliding scale for this over the next few years: (1) if the employer employs 50 or more employees, and there is no distinction between full or part-time, the number of H-1B and L-1B, but not L1A, employees together cannot exceed 75% of the total number of employees for FY 2015; (2) 65% of total number of employees for FY 2016 and (3) 50% of total number of employees after FY 2016 which starts on October 1, 2017 . This does not apply to universities or non-profit research centers.
The filing fees for the H-1B and L go way up in a clear effort to discourage such visa sponsorship. For FY 2014-FY 2024, the H-1B and L filing fee will be $5000 for an employer that employs 50+ employees in the USA if more than 30% but less than 50% of such employees are in H or L status. From FY 2014-FY 2017, the filing fee goes up to $10,000 per H-1B or L petition if the employer employs 50+ employees, again no distinction between full or part time, if more than 50% but less than 75% of such employees are in H1B or L status.
BSEOIMA goes beyond the L-1 Visa Reform Act of 2004 which allowed outplacement of L-1B workers so long as the L1 beneficiary remained under the direction and control of the petitioner. Here, even if this was the case, such secondment would be limited to an affiliate, subsidiary or parent of the L1 petitioner. All L employers who place L-1s at third party sites are now subject to a displacement obligation of 90 days before and after the L petition was filed. For a new office L, the L beneficiary could not have been the beneficiary of 2 or more L petitions in the immediately 2 preceding years. For the first time, BSEOIMA introduces an explicit provision for L investigations that can be based on anonymous sources. In addition, DOL shall conduct annual L compliance audits for each employer with more than 100 employees if more than 15% are in L status. Non-compliance with new L restrictions can lead to fines up to $2000 per violation and a 1 year debarment + an obligation to make the employee whole through payment of lost wages and benefits. A willful misrepresentation of a material fact on an L petition can result in $10,000 fine and 2 year debarment. The DHS Inspector General must prepare a report on fraud and abuse in Blanket L program within six months of enactment. The opponents of immigration have long sought to impose on the L-1 visa many of the same straightjacket restrictions that have suffocated the H-1B. Now it seems they have a major victory.
While these provisions against dependent employers are designed to put certain industries out of business that rely on H-1B and L workers, BSEOIMA introduces the concept of “intending immigrant” which does provide some respite. If an employer has an H-1B or L employee who is an “intending immigrant,” that worker is not counted in the employer’s dependency or “super dependency” calculation. With respect to not counting an alien from the dependent calculation who is the subject of the labor certification, the employer has to qualify first as a “covered employer” who is an employer of an alien, which during the one year period that the employer filed a labor certification application for such alien, has filed I-140 petitions for not less than 90% of the total labor certifications filed during that one year period. However, labor certification applications pending for longer than 1 year may be treated for the calculation as if the employer filed an I-140 petition.
The purpose of this “covered employer” definition is to probably ensure that employers do not file labor certifications without pursuing permanent residency on behalf of their employees. In reality, most employers who take the trouble to file labor certifications will go ahead and file the I-140 petition within the 180 day expiration period. It is clear that Professor Ron Hira, a critic of the H-1B and L visa program, was engaging in sophistry in his testimony before the Senate committee when he said that it would be easy for employers to avoid becoming dependent employers through paper pushing!!
The question is what happens to the “covered employer” status if an I-140 petition (among the 90%) gets denied based on an ability to pay issue or a 3 year degree issue. All that the definition of “covered employer” requires is that the I-140s have been filed for no less than 90 percent of the aliens for whom a labor certification was filed during the 1 year period.
With respect to not counting an alien who is the beneficiary of a pending or approved I-140 petition from the dependency calculation, the employer does not have to establish that it is a “covered employer.” A pending or approved I-140 petition on behalf of a foreign national will remove that person from the employer’s dependency calculation.
There is a possibility that an amendment might be proposed during the markup phase to remove the “intending immigrant” concept, and so every attempt must be made to preserve this concept in BSEOIMA, so as to give dependent employers some chance to legitimately do business in the US. H-4 spouses will be able to apply for work authorization, but only if the spouse is a national of a country that permits reciprocal employment. While H-4 spouses who are Indian nationals will benefit from this provision (as Indians have been most affected under the EB-2 and EB-3 backlogs), it is worth noting that India does not currently provide employment authorization to spouses of those who hold an Indian employment visa. However, unlike the US with many nonimmigrant visa categories that authorize work, there is only one temporary employment visa category in India. The Indian employment visa does not parallel the H-1B visa in any way. It is difficult to understand why this proviso has been inserted in the bill when spouses of L-1 visa holders (as well as E and J-1 visas) can seek employment authorization without regard to whether the spouse’s country permits reciprocal employment.
Regardless of a few bad actors, there has been an unjustified anti-India sentiment in immigration policy for a few years. This is the genesis behind all the adverse provisions against H-1B dependent employers in BSEOIMA, who otherwise try very hard to comply with the existing complex rules in place. This sentiment was reflected in the Neufeld memo that was specifically aimed against IT consulting, along with the jaundiced way that Indian equivalent degrees have been viewed by the USCIS. Then, even after an H-1B petition is approved, upon responding to a lengthy RFE and FDNS site visit, the visa applicant is delayed at the US consular post in India (although BSEOIMA brings back visa revalidation in the US for certain work visa categories). All this happened only since 2009 when all along before that there was no issue of H-1B workers being placed legitimately at third party sites, which is indeed how the business model works to the benefit of US businesses and consumers.
Clearly, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. The IT global giants along with the smaller IT firms have been “tainted” by the same brush. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. Spurred on by Senators Durbin and Grassley, the architects of BSEOIMA have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers most directly harmed by this legislative vendetta have always supplied at prices that American business and its consumers could afford. What has gone unnoticed by the so-called Gang of 8 in the Senate is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that BESEOIMA seeks to destroy.
One can also recall Senator Schumer’s infamous slip of tongue when he referred to Indian IT companies as “chop shops” instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Senator Durbin also falsely insinuated this week that highly regarded employees of companies like Infosys pay to come to the US. These sentiments will now become part of the law, and it is not hard to guess the senators who have inspired these provisions, further supported by the diatribe of Professor Ron Hira, who spew outrageous falsehoods in the guise of academic scholarship. Perhaps, one can look at the other side of the picture and find out how the H-1B visa program has benefitted the US and even creates jobs. It is unfair to assume that an employer who depends on H-1B workers in engaging in fraud. Interestingly, under BSEOIMA even “non-Indian non-dependent non-fraudulent employers” will need to go through more bureaucratic red tape, and will have to actually offer the job to a qualified US worker (unlike a PERM where all that happens is that the application is not filed) before being able to file the H-1B petition. The provisions that were previously enacted to target dependent employers in 1998 have now been expanded to cover all employers.
Unfortunately, the H-1B provisions, in an otherwise good Senate immigration bill, reflect a complete lack of understanding of the role of globalization and free trade in services during the second decade of the 21st century, which can benefit the US, India and the world. We need to draw attention to this fact in the hope that these discriminatory provisions against Indian IT, which are also inconsistent with principles of free trade and in violation of GATS, can be eliminated. Indeed, BSEOIMA has extended the additional recruitment attestations that have only applied to dependent employers to all employers, along with artificially forcing employers to pay higher than market wages for H-1B workers.
BSEOIMA seems to give more emphasis on green card sponsorship rather than prolonging the temporary visa status of foreign national workers. To some extent, this is a good thing. By allowing foreign nationals to obtain green cards, it gives them mobility and to not be bound to one employer for many years. There is also a good provision that allows an H-1B who has been terminated to be accorded a grace period of 60 days, and an application to extend, change or adjust status during that period shall be deemed to have been lawful H-1B status while that application was pending. Indeed, many employers may be able to avoid the H-1B process altogether by directly sponsoring STEM advanced degree students on an F-1 visa for a green card without even having to go through the labor certification process. BSEOIMA also allows F-1 students to have dual intent, and so their desire to obtain green cards will no longer impede their ability to obtain an F-1 visa at a US consular post overseas. PhDs, regardless of whether they got the degree from a US institution or not, can also avail of this fast track green card and they do not also need to have their PhDs in a STEM field. Still, not all employers can rely on PhDs and students in the US who graduate with STEM advanced degrees. They will need to rely on the H-1B visa, and to some extent on the L-1B visa, and BSEOIMA will clearly not quell the demand of US companies for IT services and expertise through consulting companies. It remains to be seen whether the H-1B and L provisions in BSEOIMA prove to be workable or not. Everyone thought that when the Labor Condition Application was introduced in the Immigration Act of 1990, that the H-1B visa would become unworkable. Yet, H-1Bs have continued to chug along for 22 years, and if the new provisions get enacted, it is hoped that the government agencies administering the new H and L visa programs will interpret the provisions in a way that will allow them to work.
BSEOIMA is a transformational document heralding a fundamental realignment of US immigration policy. The paradigm shifts from family ties to merit-based strategies designed to invigorate the economy. Before, it had been easier to come for temporary work reasons and difficult to stay permanently. Now just the reverse will be true. Years ago, the H-1B was a lightning rod for critics while the L-1 sailed on smoothly in calm seas. No longer. For the first time, the L and the H are fused in the minds of its critics. At a time when our permanent immigration model is more open to STEM talent as never before, our H and L policy reflect a pervasive insularity that will contradict our trade commitments, slow down our innovation, and increase the intrusiveness of government regulators as they audit the legitimacy of immigration sponsorship decisions by those American employers who seek to take advantage of this brave new world. For this reason, while BSEOIMA has much to commend it, what it gives on the permanent side of the ledger, it takes away on the H and L side. This lack of internal consistency must be resolved before it is born.
This post originally appeared on The Insightful Immigration Blog on May 6, 2013.
*Special thanks go out to Lee Beck and Angelo Paparelli for their generous and invaluable tutelage on the H-2B prevailing wage.
Those of you who took a badly needed break from the H-1B frenzy of last week might have spotted this golden nugget of foreign labor certification news on the DOL website :
Effective March 22, the Department is holding in abeyance most pending H-2B prevailing wage requests and those it received after March 22, while it considers appropriate action in response to the Court order entered March 21, 2013 in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 2:09-cv-00240-LDD (E.D. Pa). That order granted a permanent injunction against the operation of the portion of the 2008 wage rule related to prevailing wage determinations and gave the Department 30 days to come into compliance with the Court order. The Department will, however, continue to process and issue final determinations on H-2B applications for temporary labor certification where the employer’s wage offer is based upon a prevailing wage not enjoined by the court order: those utilizing applicable Collective Bargaining Agreements, acceptable private wage surveys or Service Contract Act or Davis Bacon Act wage determinations. The Department intends to promulgate a revised wage rule within 30 days of the date of the Court order. This will allow the Department to resume providing employers with both prevailing wage determinations and final determinations on their H-2B applications for temporary labor certification.
www.foreignlaborcert.doleta.gov/news.cfm. Not all was lost. DOL would still determine the prevailing wage if based on a collective bargaining agreement, an acceptable private survey, the Service-Contract Act or the Davis- Bacon Act. Only the 4-tiered OES model was off limits. The full text of the court’s ruling is here. http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf
Two days after this posting, the 11th Circuit Court of Appeals enjoined the DOL from regulating the H-2B program at all on the grounds that it lacked any authority, whether express or implied, to do so, in Bayou Lawn and Landscape Services v. Solis. http://www.ca11.uscourts.gov/opinions/ops/201212462.pdf . Now, DOL was out of the H-2B business altogether. Only the DHS could make the rules and they could not delegate any of their authority to the DOL. The next day, USCIS called a temporary halt to the H-2B program pending promulgation of a new DOL prevailing wage rule. http://tinyurl.com/cychmqt Supposedly, everything will start up again in 30 days but, since the 11th Circuit did not see how DOL could regulate the H-2B to any degree, it is hard to see how any new rule that does emerge can possibly pass constitutional muster.
Now these cases dealt with H-2B temporary labor certifications and most of us do not do a whole lot of these so maybe such news flash did not cause you to sit up and talk notice. But, this should. The wage methodology used for H-2B is also used for PERM cases. Therefore, if, as DOL itself admits, it cannot use the current OES wage system to make a prevailing wage determination for H-2B purposes, should it be able to do so in response to a PERM-linked prevailing wage request? Since the PERM cannot be filed without such a determination by DOL, where does this leave us? Is there a legally sufficient rationale for invalidating the skills-based OES four tiered wage structure when it comes to H2B but allowing it for a PERM ? If the notice and comment rulemaking requirements of the Administrative Procedures Act are not being followed in an H-2B case, why is the same determination consistent with the APA in the PERM context?
Now where did this multi-tiered wage model come from? A brief history lesson might help clarify things.:
In 2004, meanwhile, Congress passed the H-1B Visa Reform Act, which states that, when DOL sets prevailing wage rates using government survey data, it must calculate “at least 4 levels of wages commensurate with experience, education, and the level of supervision.” 8 U.S.C. §1182(p)(4). When the survey has only two levels, the additional two levels are to “be created by dividing by 3 the difference between the two levels [in the data], adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.” Id. The following year, DOL issued a Prevailing Wage Determination Policy Guidance for permanent and temporary non-agricultural labor programs. See A 68-105. In that guidance letter, DOL stated that the new version of § 656.40 would govern the H-2B program as well as the permanent and H-1B programs. See A 70. The guidance letter also applied the four-level system enunciated in 8 U.S.C. § 1182(p)(4) to all three programs. See A 68. It is undisputed that this guidance letter was issued without notice and comment.
http://www.paed.uscourts.gov/documents/opinions/10d0916p.pdf. For those who like their DOL wage guidance straight up, here is the full-text version: http://www.foreignlaborcert.doleta.gov/pdf/policy_nonag_progs.pdf
Now the problem is that this four-tiered skill level approach to prevailing wage was created by DOL out of thin air without any anchor to statute or regulation. After all, the H-1B Visa Reform Act of 2004 had nothing to do with labor certification, whether temporary or permanent and DOL never published in the Federal Register its new wage determination standards so that the rest of us could be let in on the secret. DOL was simply legislating on its own and that got Judge Louis H. Pollak of the Eastern District of Pennsylvania hot under the collar:
In the absence of any valid regulatory language authorizing the use of skills levels in determining the prevailing wage rate- the four-tier structure of skill levels set out in the guidance letters- which is entirely untethered from any other statutory or regulatory provisions, and which affirmatively creates the wages paid to H-2B workers- constitutes a legislative rule which must be subjected to notice and comment. It has not been so subjected and it is therefore invalid…DOL has never explained its reasoning for using skill levels as part of the H-2B prevailing wage determinations. Comite De Apoyo a Los Trabajadores Agricolas v. Solis, No. 09-2040, 200 WL 3431761 ( E.D. Pa. Aug. 30, 2010). http://www.paed.uscourts.gov/documents/opinions/10d0916p.pdf
So how, you might wonder, did DOL react to this judicial spanking? Well they tried to comply and came to the independent conclusion that the 2008 Wage Rule skill-level methodology had to be scrapped because it did not result in “ the appropriate wage necessary to ensure that U.S.workers are not adversely affected by the employment of H-2B workers.” Wage Methodology for the Temporary Non-Agricultural Employment of H-2B Program, 75 Fed. Reg. 61578-01, 61578 (October 5, 2010). What is most fascinating, perhaps, is that, when the DOL actually announced a modified prevailing wage regulation in January 2011, it did so using the rationale that the 2008 wage rule actually lowered the wages of similarly situated US workers:
Specifically, a review of the Department’s records for the issuance of prevailing wages in calendar year 2010 indicates that almost 75 percent of jobs are classified at a Level I wage…The four-tier structure artificially lowers that wage to a point that it no longer represents a market-based wage for that occupation. The H-2B, along with the domestic workers recruited against the application, who are being paid a significantly lower wage than two-thirds of those in that area of employment cannot help but have a depressive effect on the wages of those around him. An employer paying U.S. workers as well as H-2B workers has no incentive to pay the US workers any higher compensation. The local competitors, by extension, have no incentive to pay a higher compensation. Therefore, it follows t hat if the employer must only offer and pay Level I wages, wages below what the average similarly employed worker, is paid, those wages will make the U.S. workers less likely to accept those job opportunities or will require them to accept the job at a wage rate less than the market has determined is prevailing for the job. The net result is an adverse effect on the worker’s income…. Continuing the current calculation methodology …does not provide adequate protections to US and H-2B workers.http://www.foreignlaborcert.doleta.gov/pdf/H2B_Wage_Final.pdf (Wage Methodology for the Temporary Non-agricultural Employment of H-2B Program, 76 Fed. Reg. 3452, 3471, 3477 (Jan. 11, 2011)).
As the learned Lee Beck reminds me, the Bush Administration’s 2008 rules were attacked by labor because they depressed the wages of American workers while the Obama 2011 rules were attacked by business because they had the opposite effect. http://www.fedregsadvisor.com/2013/0…ent-has-no-aut … My friend and teacher Angelo Paparelli places DOL’s H-2B wage problems in their proper context in a magnificently insightful blog. http://blogs.ilw.com/angelopaparelli/ He notes correctly that few wept over the fate of the 2011 rule’s still-birth. The reasons are not hard to find if you look for them. First, the 2011 rule required an employer to pay the highest wage of any of the three possible sources: a collective bargaining agreement; the Davis-Bacon Act/ Service Contract Act or the OES survey. This was a major change from the 2008 rule. So, if you were hiring an ordinary entry-level landscaper in Billings, Montana, chance were fairly good that you would get a Level 1 wage in 2008 where differences in skill level were factored in. However, the DOL rejected the 4 tiered skill-based approach in the 2011 rule in response to Judge Pollak’s tongue lashing that no articulable rationale for such an approach had ever been adopted after APA notice and comment rulemaking. Consequently, since there might be a Service Contract Act wage finding for landscapers in Billings, you would be compelled to pay that rate, which would undoubtedly be much higher, maybe almost double, even if you had no federal contracts. Astonished landscapers were looking at wage increases that could and did exceed 100%! One more thing made the 2011 rule difficult to swallow. Under the 2008 rule, an entry-level job got you a Level 1 wage. In 2011, because DOL did away with the 4-tiered skill level approach, this same job would be classified between Levels 2 and 3, probably closer to the latter. So, our friendly landscaper could wind up with a Level 3 wage even higher than the Service Contract Act pay scale! As Angelo cogently observes, the 2011 wage rule was so bad that Democrats in Congress led the charge to bury it. Now that’s bad.
It should not surprise anyone that the 2011 wage rule has never been implemented. , Congress got into the Act on November 18, 2011 and, as a rider to the omnibus appropriations bill, inserted language barring DOL from spending any funds to implement the 2011 wage rule and instructed DOL to continue using the 2008 version that had so upset Judge Pollak until January 1, 2012.. H.R.Rep. No. 112-284(2011)(Conf. Rep). Since then , Congress has twice denied funding for DOL enforcement of the 2011 rule; most recently, on March 26th, President Obama renewed this ongoing restriction when he signed the 2013 appropriations bill for the federal government. Other than directing the DOL to continue applying the same 4-tier wage methodology that the Pennsylvania district court already enjoined, Congress has not done anything to address the impasse. Is anyone surprised? So, almost 30 months after Judge Pollak enjoined its operation, and over 2 years since DOL itself admitted in print that the 2008 Wage Rule lowered the wages of both H-2B and US workers, the DOL has continued to use it as the basis for telling both H-2B and PERM employers what they have to pay. Until this past March 21, when Judge Legrome Davis permanently enjoined it and gave DOL 30 days to comply. Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 ( E.D. Mar.21, 2013). http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf.
The DOL violated the Administrative Procedure Act by adopting the OES system without providing stakeholders with the opportunity of notice and comment. Remember what BALCA said about attempts by DOL to make law through promulgating FAQs. In Matter of Health America, 06-PER -1 (BALCA July 16, 2006), the Board of Alien Labor Certification Appeals chastised the Certifying Officer’s reliance on FAQ No. 5:
“Whether FAQ No.5 provides persuasive authority depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements and all those factors which give it power to persuade… We find that FAQ No.5 imposes substantive rules not found in the PERM regulations, nor supported by PERM’s regulatory history, nor consistent with notions of fundamental fairness and procedural due process.” Cannot the very same things be said with regard to the decision to abandon SWA wage surveys and use OES? We think they can and, for this reason, the decision to change the way wage surveys were conducted for LC purposes without notice and comment is an APA violation and unlawful.
What most attorneys practicing today do not realize is that the OES has only been applied to labor certification since General Administrative Letter 2-98 on October 31, 1997. Before then, the state workforce authorities (SWA of blessed memory) conducted a customized wage survey for each employer. OES was never meant to apply to labor certification and always took incentive compensation into account because, for most wage settings, this is accepted as part of what workers really got paid. Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information.
The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET provides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements. O*NET is based on the SOC system. It is the compressed nature of this system in its occupational categorization that often produces distorted wage surveys..
The OES is not neutral. From the time of GAL 2-98 to today, those who seek to choke off employment migration to this country have consistently sought to expand its reach and impose ever more onerous conditions so that employers who had the temerity to file an application would think twice. Moreover, when one thinks of OES, it should be in concert with the replacement of the DOT by O*NET with a dramatic collapsing of occupational categories and a downgrading of SVP quotients for many technical and scientific occupations that are the frequent subjects of labor certification. The end result of all this is artificially inflated wage determinations that must be paid by employers for less experience. Moreover, the OES accepts discretionary compensation which employers cannot count so that the inflationary character of occupational compression is severely reinforced. http://blog.cyrusmehta.com/2010/08/f…-that-you.html.
So, now that DOL has been forced by judicial edict to create a prevailing wage methodology that complies with the Administrative Procedures Act, what should it contain? Cyrus Mehta and I have proposed three possible ways to ameliorate the OES problem, first urged by AILA in March 2001. In each case, the effect would be to ameliorate the artificial wage inflation now resulting from the allowance of incentive compensation and once again, as before the application of OES to immigration, restore the primary of market driven forces as the ultimate arbiter of salaries(a) Back out all non-guaranteed calculations from the OES averages; (b) allow employers to include these same items in their wage offers for labor certification purposes; or (c) return to the pre-PERM era and allow variance in wage offers to bridge the gap between what OES defines as prevailing wage and what the employer can guarantee as base salary.
While waiting for divine guidance, what can we say about the OES and PERM in light of the H-2B wage imbroglio? First, the use of a 4-tiered wage methodology for PERM is specifically endorsed by INA 212(p)(4). While there is no express limitation in its application, this subsection must be understood and interpreted in the wider context of INA 212(p) itself which does apply to H-1B and PERM but not to the H-2B. Beyond that, while not quite as explicit, 20 CFR 656.40(b)(2) does speak of the arithmetic mean through the OES survey as the proper tool for sorting out the prevailing wage. Finally, it is worth commenting on the relevance of Durable Manufacturing Company v. DOL, 2008 WL 4785964, 2008 U.S. Dist. LEXIS 89885 (N.D.Ill.2008) where a federal district court in Illinois held- in a challenge to the 180 days time limit circumscribing the validity of a PERM labor certification- that the DOL has inherent authority to promulgate regulations under INA 212(a)(5). While the court in Durable Manufacturing did not opine on who had the ultimate burden of proof in the labor market test, it cited Production Tool Corporation v. ETA, 688 F.2d 1161(7th Cir. 1982) which upheld the validity of the regulations requiring the employer to advertise the position for the proposition that the DOL had broad authority to interpret and administer the PERM program
It is unlikely that the H-2B wage troubles will spill over into the PERM arena. Unlike the H-2B, where both business and labor fiercely opposed it though for decidedly different reasons, no one wants PERM to die. No one will gain by its demise nor be hurt by its continuation. The wage methodology is the same but the politics are completely dissimilar. Beyond that, the statutory authority of the DOL over the permanent labor certification stands in marked contrast to the absence of such authority to regulate the H-2B program. Yet, the command and control mentality of the DOL which allows, indeed nurtures, even promotes, the economic illiteracy of the OES wage survey cannot help but continue to destabilize the PERM wage levels precisely as happened with the H-2B determinations. It is simply a matter of time.
“Perfect numbers like perfect men are very rare.” Rene Descartes
Now is the time to change the way America counts green card numbers. Congress is presently debating comprehensive immigration reform and grand events are likely to reshape the legal landscape. Yet, at such a seminal moment we ought not lose sight of the value of technical modifications that can have enormous consequences. Most Americans, including virtually all policy makers, would be surprised to learn that the majority of green cards awarded each fiscal year go not to the principal aliens themselves but to dependent family members, thus reducing even further permanent migration to the United States. In fact, as the waiting lines over the past decade have grown ever longer, this pattern has become more pronounced. A quick overview of green card distribution during the first decade of the 21st century quickly makes this evident. Let us take employment based migration in the employment-based first preference (EB-1) category as our data sample. In 2000, there were 5,631 new arrivals under the EB-1, 2,241 went to the principal vs. 3,390 to family members. This means that family members accounted for 58.67% of EB-1. In 2012, there were 1,517 new arrivals under the EB-1. 516 went to the principal & 1001 to family members. This means that family members accounted for 65.98% under the EB-1. Things are getting worse.
It need not be that way. Neither the law nor logic commend or require such a result. Without creating a single new immigrant visa, Congress can eliminate quota backlogs and restore relevance to a green card system that is sorely in need of such restoration. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression will quickly become a thing of the past. Nor is this merely something for idle academic debate. Rather, it is essential if the path to legal resident status for the undocumented is ever to mean anything. Under any conceivable iteration of CIR, even if there is an expansion of immigrant visa numbers in the preference categories, the undocumented will be relegated to the back of the green card line behind those patiently waiting under the legal system. Unless a solution is found to remediate the tyranny of priority dates, the undocumented like the ancient Israelites who left Egypt, will never enter the promised land.
Section 203(d) of the INA is the provision that deals with family members. Let us examine what INA § 203(d) says: A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent. There is nothing in INA § 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. Is there not sufficient ambiguity in INA § 203(d) to argue even under current law that family members should not be counted against the quotas?
There is no regulation in 8 C.F.R. instructing what INA § 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. § 42.32 only parrots INA § 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. § 42.32 does not provide further amplification on the scope and purpose of INA § 203(d). We acknowledge that INA 203(d) derivatives are wholly within the preference system and bound by its limitations.. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.
INA § 203(d) took effect under IMMACT 90. It still remains a mystery as to why INA § 203(d) was enacted. There was no need to do so since family members were counted in the pre-IMMACT90 quotas. No clear answer can be gleaned from the legislative history of IMMACT 90. Though family members were explicitly exempted from being counted in the House bill, such exemption was removed in conference with the Senate. Ultimately, Congress enacted INA § 201(d), which set a numerical limit of 140,000 for EB immigrants, and it appears that the intent of Congress in IMMACT 90 was to count family members in the final legislation. Was INA § 203(d) introduced to ensure that family members would be counted especially after the House sought to exempt them? Or was it the converse? Could INA § 203(d) have been a vestige of the House’s intent that was never taken out – to make sure that, even though these derivatives would be counted against enlarged EB cap, they would not be left out in the cold but still get the same “green card” benefits as the principal?
If the Executive wanted to reinterpret INA § 203(d), there is sufficient “constructive ambiguity” here too for it do so without the need for Congress to sanction it. We have explained this in our prior article, Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center! But we do not want to end on such optimism and throw all caution to the winds.. Thus, we propose a simple technical fix in Congress, which is to exclude family members from the FB and EB quotas. We do not see why this cannot be accomplished as there is already a pedigree for such a legislative fix. The proposed wording to INA 203(d) would be a simple add on to the current text, such as: “All family members, including the principal alien applicant, shall be counted as one unit for purposes of INA 201(c) and 201(d) limitations. They shall not be counted on an individual basis.” Not only did Congress try to remove family members in IMMACT90, but also attempted to do so in S. 2611, which was passed by the Senate in 2006. Section 501(b) of S. 2611 would have modified INA § 201(d)(2)(A) to exempt family from being counted in EB cases. The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.
Even an increase in the visa numbers in a reform proposal, which might seem adequate today, will again result in backlogs shortly based on the uncertainties with economic booms and busts as well as the varying size of families. An immigration system that does not count derivatives separately will have more of a chance to remain viable before Congress is again required to expand visa categories a few decades later. This will also go a long way in restoring balance and fairness to our immigration system. Sometimes even small things can cast a giant shadow.
This post originally appeared on The Insightful Immigration Blog on March 24, 2013.
There is no doubt that a Startup Visa would unleash amazing entrepreneurial activity in the United States, which would result in many jobs. The latest version of the Startup Visa Act 3.0 would provide 75,000 visas to individual who are already here in F-1 and H-1B status if their companies receive an investment of $100,000 per year and employ a minimum of two workers in the first year. A three year visa would be given to those who meet this condition. If within the three years, they employ an additional worker each year, they can apply for permanent residency.
According to a Kauffman Foundation study, the Startup Visa could conservatively lead to the creation of between 500,000 and 1.6 million jobs, which in turn could give a boost to the US economy of between $70 billion and $224 billion a year. A more optimistic estimate would result in 889,000 jobs and a boost to the economy of around $140 billion per year. Vivek Wadhwa, a big proponent of this bill, estimates an even bigger boost if half of these companies are engineering and technology companies. Many of these entrepreneurs, according to Wadhwa, will go on to build new companies based on their success, and could also develop breakthrough technologies and some of them could also be the next Google or Apple.
So if this is a no-brainer, why is Congress not passing the Startup Visa Act 3.0? The truth is that no standalone immigration bill will pass unless it is tied to a broader Comprehensive Immigration Reform bill. Indeed, there is an interesting debate between Wadhwa and Congressman Luis V. Gutierrez on this issue. Guiterrez, although he supports a Startup Visa, has openly admitted that he will not allow it to pass unless Congress is willing to reform the entire immigration system. Wadhwa feels this is “political gamesmanship” on the part of Guiterrez, and that the Startup Visa can be passed first in order to give the American economy a big boot and this would lead to increased public acceptance for broader immigration reform. Guiterrez, on the other hand, feels that once he allows this to happen, it will be more difficult to pass comprehensive immigration reform.
The disagreement between Gutierrez and Wadhwa may be a false polarity. A nation needs both social justice and good economics; indeed, social justice is the best economics. A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the US with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or benefitted under any employment or investor visa category in our immigration system. His parents were able to come into the US based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today.
Both Wadhwa and Guiterrez have a point. However powerful the stimulus flowing from the Start Up visa, enactment of Comprehensive Immigration Reform along with the Startup Visa would be infinitely more potent. Reforming a broken system, which includes legalizing the 10 million plus undocumented immigrants in the US, as well as providing quicker and more sensible pathways to legal status, could unleash even greater wealth. Immigrants of all stripes are essentially very entrepreneurial. An undocumented person who is provided legal status can also start a business and this individual need not be a STEM (Science, Technology, Engineering or Math) graduate. Even a non-technology company can create jobs such as a restaurant or grocery chain. Immigration should not be viewed as a zero sum game, and giving opportunities to foreign nationals in the US can result in more American jobs. Under our broken system, it is virtually impossible for an entrepreneur who wishes to start a North Indian cuisine restaurant to bring in a foreign national tandoori chef. A reformed immigration system should hopefully give this entrepreneur access to such a chef from India. A restaurant’s success is possible because of its chef, and when that great tandoori chef can be quickly hired from India, people will start coming to the restaurant resulting in the hiring of restaurant managers and waiters locally in the US. This restaurant’s success can then be replicated, and the entrepreneur can develop a branded chain of tandoori restaurants all over the US, resulting in many more jobs locally.
According to another report sponsored by Cato Institute – The Economic Benefits Of Comprehensive Immigration Reform by Raul Hinjosa-Ojeda, the legalization of 11 million immigrants would be equivalent to more than $1.5 trillion added to GDP over 10 years. The study considered the economic impact under three scenarios: a legalization program that would ultimately result in a pathway to citizenship, a temporary worker program with no option for permanent resident status and the deportation of undocumented immigrants. Hinjosa-Ojeda concludes that the legalization of undocumented immigrants would provide the most economic benefits to the US. On the other hand, removing undocumented immigrants would be most expensive, costing $2.6 trillion to the GDP over a 10 year period.
The debate between Wadhwa and Gutierrez can be put in a larger perspective. If you believe, as Wadhwa does, that the purpose of immigration is to create wealth, unleash creativity and foster productivity, then the focus should be on entrepreneurs and highly skilled professionals. This explains his approach. If, however, you are mainly concerned with social justice, then you argue for a more comprehensive approach which is what Gutierrez does. It comes down to what you think is most important and what you think has true moral legitimacy. For those who use immigration to bring about social justice, it is family not employment immigration that is morally legitimate. The focus is on using immigration to help the individual immigrant, reunite families, to fight intolerance, poverty and injustice. It is not to make American employers more competitive, and there’s also an impulse to protect US workers. Wadhwa, on the other hand, sees an ethical value and legitimacy in work itself, in work as a creative expression of individual talent. He looks for new avenues especially in STEM fields to unleash creative potential within the culture and context of a capitalist economy.
The economic boom that an enlightened immigration policy would ignite is generational in its dimensions. The immediate benefit from the entrepreneurial energy of the immigrant generation would be transformed and expanded by the diversified talents of succeeding generations. The Tandoori cook of one generation is often followed by the cutting-edge geophysicist of the next. Precisely as the American economy itself is inherently dynamic, the role that immigrants play in it also constantly evolves. For this reason, the sharp contrast provided by Gutierrez and Wadhwa that seem so vivid now will, over time, fade into a more nuanced yet no less compelling portrait. Gutierrez realizes that an enlightened immigration policy can only exist in a compassionate society where social mobility is a lubricant of national cohesiveness. Wadhwa appreciates that immigration is an asset to be maximized not a problem to be controlled. Like all transformational moments in American history, this is pre-eminently a time to try something new.
A month before signing the Emancipation Proclamation, Abraham Lincoln spoke to our issue in our time:
The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew. We must disenthrall ourselves, and then we shall save our country.
This post originally appeared on The Insightful Immigration Blog on March 4, 2013.
At a time when comprehensive immigration reform has moved from a devoutly wished for possibility to a bipartisan consensus with the wind at its back, it may seem small potatoes to suggest a new path forward for our old friend the H-1B temporary worker visa. Why settle for incremental change when greatness is upon us? Even in such moments, indeed especially at such moments, enduring progress rests upon the steady accumulation of small victories. If, as the ancient Chinese proverb reminds us, the journey of a thousand miles begins with a single step, finding a way to make the H-1B create jobs for American workers may be an unexpected way to begin the journey.
The H-1B is the workhorse visa for the entire employment-based immigration system. It is the typical entry-point for temporary skilled workers, and frequently is the jumping off point towards pursuit of the green card. Because of this, it has become a symbol for all sides on the immigration debate. Critics point to the H-1B visa as a tool for exploitation and giving skilled jobs in the US to foreign workers. Its defenders argue that it is a pillar to be secured against all assault because it plays a necessary role in the US economy.
At present, the H-1B is governed by two features neither of which is based in economic reality: (1) an arbitrarily chosen numerical cap set entirely by political considerations and (2) a prevailing wage sanctioned by the Department of Labor. Neither do the job that Congress and DOL intended them to do. It does not have to be that way.
We make a confession at the start, namely that we are pro-immigration and not pro -immigrant. Our advocacy stems from a core conviction that more immigration is good for America, not out of a primary concern to help the individual immigrant. We are at a precious moment in our national debate over immigration. Now is the time to make fundamental structural choices. If not now, when? We who believe that more immigration is essential to realizing the full promise of American life must be willing to explore unorthodox positions and join in open and honest conversation with those who do not agree with us. It is the national interest, not the personal one, which we seek to promote. That is precisely the source of our profound dissatisfaction with the H-1B as it now exists. We object to the numerical cap and DOL’s prevailing wage methodology — not because they are difficult to understand or satisfy, but because they do not benefit the very American workforce they were intended to protect. Indeed, the goal of hiring more Americans is squarely a goal we share with Congress and the DOL.
Let’s look at the cap first. Until now, the H-1B controversy has been all about numbers, focusing on whether the cap should be raised or lowered, and wages, focusing on whether the prevailing wage set by the Department of Labor (DOL) is accurate. In practice, for about a decade, the cap has been set at 65,000 new H-1B visas each year, and the DOL’s prevailing wage has in the past been consistently higher than what is regularly paid by employers in their target labor markets. Yet, no matter how many H-1B numbers the cap did not allow nor how inflationary or inaccurate the DOL’s wage data was, nothing about the H-1B today will have direct impact on encouraging the employment of American professionals.
Underlying these concepts are assumptions that H-1B workers take jobs away from U.S. workers and/or lower wages for US worker. Essentially, the fear is that each foreign worker hired in the US is taking a job away from an American worker. It would follow that protection of the domestic labor market can only be accomplished through a numerical limit on the number of skilled foreign workers authorized to obtain work visas in the United States. It is the one-sided vision of immigration and its supposedly negative economic impacts that that arouses our fundamental opposition. American workers and the American economy are ill -served when immigration is understood and administered as a problem to be controlled rather than as an asset to be maximized. Our question about the H-1B cap boils down to: Is the fear that skilled worker jobs are a zero-sum game between American workers and foreign workers accurate in today’s economy? We have yet to see an empirical argument in favor of the H-1B cap or prevailing wage that establishes, for example, that the cap and prevailing wage requirements of the H-1B program actually create or preserve US skilled jobs, or, similarly, that wages in industries with a high percentage of H-1B employees are lower or stagnant for US workers because of the hiring of those same H-1B employees. Only rarely is thought given to how the H-1B can be transformed into an engine of job creation for US workers.
We think there is a better way.
From our point of view, there is no inherent contradiction between more H-1Bs and more US hiring. We reject the notion that tightening the screws on the H-1B system simply by capping the number of H-1B visas available each year will help either frustrated employers or disappointed Americans. We are also motivated by the idea that skilled worker immigration actually helps the US economy grow, and consequently contributes to generating employment in the US.
This is not simply an idle aspiration. It is a fact. Essentially, the ‘zero-sum’ vision of the impact of skilled worker immigration on hiring of US skilled workers appears to be simply wrong in today’s economy. A recent study by the American Enterprise Institute found that skilled immigration has positive effects on employment of US workers (see American Enterprise Institute, “Immigration and American Jobs”, 2011). http://www.renewoureconomy.org/sites/all/themes/pnae/img/NAE_Im-AmerJobs.pdf. In fact, the multiplier effect was most pronounced in cutting-edge scientific and technological occupational categories:
- Immigrants with advanced degrees boost employment for US natives.
- The data comparing employment among the fifty states and the District of Columbia show that from 2000-2007, an additional 100 foreign-born workers in STEM fields with advanced degrees from US universities is associated with an additional 262 jobs among US natives. (AEI Report at p.4)
This study is further supported by research on the H-1B visa finding that this visa program may increase innovation in our economy (see William Kerr and William Lincoln, “The Supply Side of Innovation: H-1B Visa Reforms and US Ethnic Invention” (2008, HBS Working Paper 09-005)). http://www.nber.org/papers/w15768.pdf?new_window=1
These studies are not aberrations in recent research in immigration. Another study from 2007 found that 25% of engineering and technology companies started in the US between 1995 and 2005 were founded by immigrants. These companies represent $52 billion (with a “b”) in sales and employed 450,000 workers nationwide (see Vivek Wadwha, Ana Lee Saxenian, Ben Rissing and Gary Gereffi, “America’s New Immigrant Entrepreneurs: Part I” (2007, Duke Science, Technology & Innovation Paper No. 23). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=990152.
We thus support more immigration from skilled workers and advanced degree holders not out of idealism or altruism, but as one of the federal government’s most effective programs to combat unemployment and promote the hiring of qualified Americans. The numbers tell us that, from 2000-2007, even outside of STEM fields, “each additional 100 foreign-born works with an advanced degree created about forty-four additional jobs for US natives>” (AEI Report at p.10) The stimulus provided by H-1B sponsorship was even more direct and dramatic: “The estimates show that a 10 percent increase in H-1B workers, relative to total employment, is associated with a 0.11 increase in the native employment rate. During the sample period of 2000-2010, this translates into each additional 100 approved H-1B workers being associated with an additional 183 jobs among US workers.”(AEI Report at p.11).
Thus, we suggest that there is strong evidence that the H-1B cap should be at the very least reconsidered and, we proposed, eliminated and replaced with a rule that better serves the US economy. However, we recognize that our critics may not accept such studies but instead counter them with contrary studies of their own. While our argument is based on evidence not rhetoric, skeptics take refuge in Mark Twain’s famous saying: ” There are three kinds of lies: lies, damned lies and statistics.” So, let us go beyond statistics and make the link between the H-1B and the hiring of a qualified US worker a matter of fact not debate. If the cap does not protect US workers, how about the DOL approach to prevailing wages based upon the OES wage methodology. Does the prevailing wage system make sense from the point of view of creating US jobs, or as the last line of defense keeping employers from paying fast-food wages for skilled workers?
There is no black and white evidence that H-1B visas are the cause for any wage stagnation or lower wages in tech jobs and STEM fields (if any). Studies find both positive and negative effects on wages in relation to college level natives. (see, for example, George Borjas & Lawrence Katz, “The Evolution of Mexican-Born Workforce in the United States” (2007, NBER)) http://www.nber.org/chapters/c0098.pdf The best argument in favor of the prevailing wage is that it is a good system for avoiding exploitation of foreign workers (though not as good as the market itself would be if the H-1B was truly portable and foreign workers had the benefit of genuine occupational mobility).
The Immigration & Nationality Act (“INA”) requires that the hiring of H-1B non-immigrants will not adversely affect the wages and working conditions of US workers comparably employed. The Prevailing Wage system, managed by the DOL, is intended to require US employers hiring an H-1B skilled worker to apply to the DOL for determination of the prevailing wage for similar occupations in the geographic area where the foreign worker will be working. The Prevailing Wage is thus intended to be a floor which prevents the US employer from offering unacceptably low wages that would harm the wages of American workers and cause foreign workers to be hired for a pittance.
The Department of Labor, Bureau of Labor Statistics (BLS) has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process since 1998. The wage data is available on the Foreign Labor Certification Data Center Online Wage Library (OWL), found at the following website: http://www.flcdatacenter.com/.
Since September 1999, the Standard Occupational Classification (SOC) has been used by the OES program to classify occupational wage information. The SOC provides a common language for categorizing occupations. It also serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET provides the general public information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels associated with occupations. O*NET information can be found at http://online.onetcenter.org/. Wage data from the OES survey and occupational information in O*NET are both classified by the SOC, reducing the need to use crosswalks to connect wages to occupational requirements.
O*NET is based on the SOC system. It is the compressed nature of this system in its occupational categorization that often produces distorted wage surveys.. The OES is not neutral. From the time of GAL 2-98 to today, those who seek to choke off employment migration to this country have consistently sought to expand its reach and impose ever more onerous conditions so that employers who had the temerity to file an application would think twice. Moreover, when one thinks of OES, it should be in concert with the replacement of the DOT by O*NET with a dramatic collapsing of occupational categories and a downgrading of SVP quotients for many technical and scientific occupations that are the frequent subjects of labor certification. The end result of all this is artificially inflated wage determinations that must be paid by employers for less experience. Moreover, the OES accepts discretionary compensation which employers cannot count so that the inflationary character of occupational compression is severely reinforced. http://blog.cyrusmehta.com/2010/08/follow-money-what-oes-counts-that-you.html
We now have two forms of immigration restriction: numerical quotas set by Congress and qualitative restrictions applied by the DOL through the targeted deployment of administrative systems whose combined effect is to render successful immigration sponsorship more expensive, tedious and difficult. It would then be a mistake to believe that the world has not changed absent passage of CIR. In fact, the immigration calculus has shifted to a much less favorable posture so that legislative inaction has given way to administrative restraint.
Our goal is not to tax H-1B employment but promote American employment. Again, this is a goal that we share with the Congress and DOL.
The way that this goal is approached by DOL, however, is rooted in the fear that each foreign worker hired is taking a job away from a local American worker. We already cited recent studies confirming that – even if this was ever true – it is not true today. The times they are-a-changing.
So, what’s our solution? Employers hate the cap and DOL is angered by a visa that it feels steals jobs from US workers. Let’s make everyone happy. Eliminate the cap and substitute in its place a healthy dose of economic literacy. Exempting small employers with fewer than say 25 employees and with adequate safeguards to prevent avoidance, we propose that any H-1B sponsorship must be matched by the hiring of a US worker in the same occupational category: an H-1B petition for a geophysicist is thus linked to the employment of a US geophysicist. The training fee that accompanies every H-1B petition will be used to underwrite the job offer to this American worker. For the first time, the American public and the employers who pay the H-1B fees will be able to see where these training funds are going. The H1B system will thus become more transparent than it has ever been. This is bound to assuage public anxiety and generate sustained public support. What if the talent level of the US worker is below that of the H-1B beneficiary? US employers must accept this discrepancy and use the training fee to bring these skill sets into rough equilibrium. What is now a tax on employers to punish them for their H-1B audacity will be transformed into underwriting a jobs program for US college graduates and other degreed professionals who desperately want jobs but often are unable to find them. The outcome will be more immigration of skilled immigrants, and this added immigration will have clear and verifiably positive impact on the hiring and training of skilled US workers (and job creating impacts throughout the US economy). If we have to have an H cap, which we do not support, then make it a soft cap that can be pierced when doing so will promote the hiring of US workers. If an employer hires an American who has been unemployed for over 12 months, they get an H1B job credit that can be used to hire an additional H1B worker free of quota restrictions. One caveat: the employment of such US worker must be on a full not part-time basis and must not be a phantom hire. It must last for a reasonable period of time, perhaps one year. In this way, the H-1B can be targeted to alleviate the plight of the long-term unemployed.
We do not ask the employer to prove a negative. We do not insist upon a showing of unavailability before H1B submissions can be brought forward. These are proposals intended to make the immigration labyrinth even trickier to navigate, and thereby reduce skilled immigration. Again, the fear that skilled workers take jobs away from American workers is at the heart of such proposals. Our focus is a positive one. We are not asking for proof that Americans cannot be hired but for evidence that they have been. The objective we have is to get real skilled jobs for real US workers. We do not need to discourage H-1B hiring or make it more unduly burdensome. We do not want to levy a tax on employers or otherwise penalize them for taking actions contrary to the public interest. Quite the contrary. Hire all the H-1B temporary workers the market will bear, so long as an equal number of American professionals share in the bounty. Americans who look for work but cannot find it will finally stop blaming H-1B employers and alien beneficiaries for their troubles. The artificiality of proving unavailability, whether in the H-1B or the PERM context, fails to help US workers precisely because it does not encourage or require these same employers to do anything positive but rather to demonstrate that it cannot be done. We reject the notion of punishment; our spotlight shines only on job creation. The American economy is not static and neither should our immigration laws be. The focus of both should always be on the creation of new jobs and the expansion of economic opportunity. We ask only that the responsibilities of being an H-1B employer should go beyond the four corners of the labor condition application. We do not want to make the H-1B more difficult but more productive and profitable- for everyone.
We are confident that such an H1B will enjoy an unprecedented degree of public and political acceptance leading not only to more H1B visas but to a willingness by all Americans to entertain an expansion of other immigration options that, like the H-1B, will henceforth be viewed and administered in an entirely new light, one that is manifestly in the national interest. A new and improved H-1B cannot do the job alone. There must be other incentives that work along with it to keep good paying US jobs at home, such as a simplification of the tax code, repair of our aging infrastructure and revival of our educational system. Yet, at a time when multinational companies are increasingly shifting hiring overseas http://online.wsj.com/article/SB10001424052748704821704576270783611823972.html , the H-1B is a very valuable tool that, if properly deployed, can help make the United States more attractive to investment capital.
What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. No decision on H quotas can or should be made separate and apart from an answer to a far more fundamental question: How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze.
An immigration system that restricts the importation of human capital hurts American competitiveness every bit as much as high tariffs or artificial subsidies. In each case, the controlled but predictable flow of capital across national boundaries is the lubricant of economic activity. Our proposal unites industry and labor behind the banner of immigration reform. Preserving the H1-B as an instrument of job creation for Americans while enhancing the ability of foreign professionals to make our cause their own is an essential and irresistible component of comprehensive immigration reform. It is the absence of such an ingredient that scuttled CIR in 2007 and on all prior attempts as well. For far too long, when confronted with the constant cry for more H-1B numbers, the understandable reaction of many Americans has been to ask one very simple but insistent question:” What’s in it for me?” Now, at long last, they will have an answer.
It is so refreshingly wonderful to think that what was once unthinkable could become a possibility – a bill to comprehensively reform our broken immigration system. Even the House Judiciary Committee held a hearing last Tuesday, where there was a willingness to legalize the 10+ million undocumented population, when in the past the tunnel vision mindset of the GOP controlled House was to find ways to either deport them or make it hard for them to remain in the US.
The fault line of contention in the debate is whether to grant a pathway to citizenship or not for those who will be able to legalize their status. Many House GOP leaders have stated that they would rather find a middle ground between deporting the undocumented people and providing them with citizenship, which is obviously being opposed by advocates for immigration reform. Even the Obama White House is opposed to this. For instance, Raul Labrador, a rising GOP leader from Idaho in the House has said that he would vote for providing legal status to the undocumented, but not a green card, which would provide a path to citizenship. The rationale for this is that those who have not” played by the rules” should not be rewarded with a quick path to citizenship. But the underlying motive for denying a path to citizenship is the fear that these new citizens will vote against the Republican party. On the other hand, Jose Garcia, a Democrat from Florida believes that not providing a path to citizenship would create an underclass in the US, which is not in keeping with American values. He also cites the examples of the French and German systems where immigrants are not allowed to become French or German, and this has resulted in the kind of social unrest in those countries that we have not seen in the US. It is worth noting that the heavyweight Republican from California, Darrell Issa, has recently backed a path to citizenship. He stated, “Ultimately, if you’re allowed to remain in this country permanently, in almost all cases, there should be a path to citizenship. That is what Abraham Lincoln would have said. That’s what the Republican Party stands for.”
We too advocate for a path to citizenship in an immigration proposal that will legalize the status of undocumented workers. We also believe that if the GOP provides a path to citizenship, they need not fear losing them as future voters. Many immigrants can be wooed by the GOP as they too share conservative values, and making it through their own enterprise. Elections have consequences and demography is destiny, especially when it comes to politics. Not wanting to remain a permanent minority, or even lose control of the House of Representatives in the next election cycle, even the most stalwart immigrant bashers in the House GOP leadership are suddenly finding religion and coming to terms with the truth on immigration. Any repentance, however forced or late is coming, should be accepted. Politics is, if nothing else, that most practical of professions.
Still, even under the most liberal proposal, citizenship is not likely to come automatically or even quickly. First, there will be a probationary period of legal status, and after some years, they will be allowed to apply for green cards. After obtaining a green card, one has to wait either five years, or three years (if married to a US citizen) to be able to naturalize. It is hoped that those opposed to citizenship because they believe that people will become citizens the day after a bill is enacted are educated about the long and arduous wait even under a system that provides a direct path to citizenship. A bi-partisan group of Senators also favor a path to citizenship, but have attached conditions before those legalized can obtain green cards, which is that Congress must first be satisfied that the border is under control. This too is being opposed by immigrant advocates and the White House as those in control of this trigger will always find an excuse to say that the border is not under control.
However much the authors of this blog want a pathway to citizenship without conditions, we also fervently hope that a once in a lifetime deal to reform the immigration system must not break down on the citizenship issue. There can be many other pathways to citizenship, and it is not true that the undocumented who get a legal status will be part of a permanent underclass. We would refute and reject any proposal that would render anyone legalized permanently ineligible for citizenship. First, let’s take a realistic view on how long folks have been waiting under the current immigration system. Many who have met all their conditions to apply for a green card have been waiting under a backlogged family or employment preference category for more than a decade. The India employment-based third preference is so backlogged that an Indian-born beneficiary of a labor certification filed today by an employer may have to wait for 70 years before he or she can apply for a green card!! With respect to being on a path to citizenship, they have been worse off than an undocumented person who may legalize under a new immigration reform law.
Thus, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary.The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.
Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long. Then, there are also few avenues for obtaining a green card. If the GOP refuses to provide a direct pathway to citizenship, or a path to citizenship based on conditions, or even if a direct path to citizenship takes a long time, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.
This post originally appeared on The Insightful Immigration Blog on February 8, 2013.