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  1. Will the new Labor-Business Accord Produce an Immigration Death Panel?

    by , 02-25-2013 at 10:21 AM (Angelo Paparelli on Dysfunctional Government)
    One of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.

    The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.

    Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:

    [There] are instances - even during tough economic times - when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . .

    [We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today's technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.

    The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:

    The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.

    The problems with the concept, however, are many.

    For one, we tried this before and it went nowhere. In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]

    When the Labor Department proposed its initial list, however, all hell broke out. Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified. Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:

    Does BLS project future labor shortages or surpluses?

    No. The BLS projections assume a labor market in equilibrium, i.e., one where overall labor supply meets labor demand except for some degree of frictional unemployment. . . .

    Furthermore, attempts by some to ascribe shortages or surpluses to our projections are based on an incorrect comparison of the total employment and total labor force projections, two separate and fundamentally different measures. . . . Users of these data should not assume that the difference between the projected increase in the labor force and the projected increase in employment implies a labor shortage or surplus.

    Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers burden under an artificial labor certification program, DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers, is an "empty ritual":

    PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

    KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.

    Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:

    [Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

    Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.

    I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled. I offer, however, some friendly amendments.

    U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs. A simple print-out of the screen shot from the government forthcoming database's showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition. Thus, DOL's current PERM labor certification procedure could be eliminated.

    Moreover, there should be no change in current H-1B requirements relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas. As I explained to NPR's Martin Kaste:

    These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.

    So let us now face the question posed in the title of this post:

    Will the new labor-business accord produce an immigration death panel? The answer is "NO" -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.

    But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."

    Updated 07-16-2013 at 02:29 PM by APaparelli

  2. The Impact of the Sequester on the Immigration Courts

    by , 02-25-2013 at 06:30 AM (Matthew Kolken on Deportation And Removal)
    The Washington Post reports that the imminent sequester will result in a loss of $15 million of funding to immigration Courts, which will trigger a hiring freeze on all "key critical positions" including new immigration judges.  Also on the chopping block: interpreters, legal support and I.T. staff.
    Attorney General Eric Holder stated that the hiring freeze will result in a 6% increase of backlogged removal hearings bringing the number to 350,000.  On average it takes approximately 550 days to bring an immigration court case from institution to completion.  Expect that number to increase as well.
    Click here to the source of the story.


    by , 02-25-2013 at 06:09 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    Charles Oppenheim of the Department of State is the person
    most responsible for each month's Visa
    Bulletin.  In a conversation with
    AILA, Mr. Oppenheim recently discussed projections for future Visa
    Bulletins.  MU Law has spoken with Mr.
    Oppenheim several times in the past and have always found that his projections
    are well thought out and very accurate.

    Here are some important notes from that conversation:

    India EB2 will see very little movement in the
    foreseeable future.  Many immigrant
    visa applicants with old India EB3s are recapturing these dates in
    subsequent EB2 applications, thereby holding back the progression of India
    EB2.  Current numbers indicate that
    there are approximately 42,000 India EB2 cases in line with priority dates
    prior to May 2010.  These numbers
    cannot account for future upgraded India EB3s.
    The USCIS and DOS have pre-adjudicated 44,000
    India EB-3 Applications with priority dates before August 2007.  Therefore it will be several years
    before India EB-3 progresses beyond that date.
    There are 12,000 India EB3 cases with priority
    dates before January 2004, which means that India EB3 will not improve
    into 2004 for at least one or two years.
    Worldwide EB-3 has 42,000 pre-adjudicated cases
    with priority dates before March 2007.  Still, the Worldwide EB-3 date is May
    2007.  Mr. Oppenheim did not say it,
    but it reasonable follows that many of these 42,000 Worldwide EB-3s likely
    have been abandoned.

    Because it is impossible to predict how many
    EB2s are upgraded to EB2, it is nearly impossible to predict future dates.  For instance, Worldwide EB3 had 1,100
    upgrades in December 2012.  In 2007,
    there were only 72 upgrades for the entire year. 

    Read the Musillo Unkenholt Healthcare and Immigration Law Blog at or  You can also visit us on Facebook and follow us on Twitter.
  4. Letters of the Week: Feb 25 - Mar 1

    Please email your letters to or post them directly as "Comment" below.
  5. Bloggings: Immigration Reform Depends On What Type of America There Will Be. By Roger Algase

    The US Supreme Court will soon be deciding two issues which may determine what kind of country America will be for at least the next generation, if not the next 50 years or 100 years. Both of these issues are also likely to have a major effect, not only on immigration reform prospects for the immediate future, but on immigration policy for many decades to come.
    I refer, of course, to the coming decisions regarding the validity of the  Voting Rights Act and the Defense of Marriage Act (DOMA). At issue in both of these cases are whether a vision of America as a society of prejudice and discrimination based on race or sexual orientation which dominated most of the 20th Century will by upheld, or whether America will truly enter the 21st Century as a nation of tolerance and equality, based on our common humanity, rather than on the color of one's skin or whether one's partner happens to be of the same or opposite sex.
    Beyond all the legal wrangling that is expected to take place in the Supreme Court over arcane issues, such as the ability of certain states and other jurisdictions to "exit" from the requirement of obtaining approval from the Department of Justice before changing voting procedures, or the "level of scrutiny" that should be given to a law which openly discriminates against a certain class of people, i.e. legally married same sex couples, are far more basic questions.
    One of these is whether people of color should have the same right to vote as white people. Until the Voting Rights Act was adopted in 1965, the answer to this question in our Southern states and in certain jurisdictions outside of the South was emphatically no. In 2012, almost a half century later, the answer was still no, at least according to the legislatures, governors and election officials in Florida, Ohio, Texas, Pennsylvania and other key states who tried to manipulate voter ID requirements and voting hours in order to make it more difficult, if not impossible, for millions of African-American and Latino US citizens to vote.
    While it was not the only legal tool that was used to stop white supremacists from stealing last year's election, the Voting Rights Act was one of the most important and effective ones, because it does not require waiting until a discriminatory law has already been put into place in order to challenge it. To argue that the Voting Rights Act is "no longer necessary" is the same as arguing that it is not "necessary" for people of color to be able to vote.
    In the case of DOMA, the argument by supporters of the law is the opposite, namely that it IS necessary - in order to preserve hatred and discrimination based on sexual orientation which has been part of Western culture for the past 3,000 or more years, ever since the Biblical story of the destruction of Sodom and Gomorrah. 
    The immediate effect that the outcomes of these two Supreme Court cases will have on immigration is obvious. The only reason that immigration reform is now under discussion at all is because so many Latinos, along with African-Americans and Asians, stood for many hours in long lines in order to cast their votes against hatred and prejudice last fall.
    If they had been kept away from the polls, who could possibly imagine that the Republicans would suddenly be so interested in at least creating the appearance of supporting immigration reform. Would President Obama, whose main vision of "reform" during his first term was deporting some 400,000 people each year and expanding Orwellian, police state measures such as "Secure Communities" now be showing such urgency for immigration reform (in the unlikely event that he had been re-elected at all without overwhelming support from minority voters)?
    And as far as the rights of same sex couples are concerned, disagreement between the two parties over whether green cards should be granted to spouses in same sex marriages could derail immigration reform entirely, unless the Supreme Court renders this issue moot by striking down DOMA. 
    Even though immigration is certainly not the only issue that will be affected by the soon to be expected Supreme Court decisions either way on these two issues, these decisions may have a major effect on immigration policy, for better or worse, many years into the future.

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