Greg Siskind on Immigration Law and Policy

CANADA'S FABULOUS POINT SYSTEM

LOU DOBBS' FLEXIBLE RELATIONSHIP WITH REALITY

Wow, there's a pretty devastating piece in the NY Times this morning by David Leonhardt in the NY Times that calls Lou Dobbs to the carpet on numerous false statements made on the broadcast. Leonhardt interviewed Dobbs and the arrogance just bleeds from the pages. Enjoy!

"MERIT" POINT SYSTEM WILL DRIVE BRIGHTEST AWAY FROM US

As I noted in my top ten problems article posted last night, the biggest problem in the entire immigration bill may very well be the elimination of the employment-based green card categories and it's replacement with a one size fits all point system where anyone who scores over a certain threshold can get in to the country. That means that those currently qualifying as extraordinary ability aliens in the EB-1 category can get on line and wait. And wait. And wait. That's because the point system will allow anyone in the world with a decent education background to qualify to immigrate regardless of whether they have employment lined up in the US. So it's possible that millions - perhaps tens of millions - of people might get on line and cause backlogs of decades for US green cards. Nobel laureates don't get any special preference. And if you're an Academy Award winning actor or a Olympic gold medalist, we don't want you. The new point system doesn't offer points for artistic or athletic ability.

The Washington Post reports on this problem in this morning's edition.

TEN THINGS TO FIX BEFORE PASSING A SENATE IMMIGRATION BILL

The Senate’s immigration bill is chock full of problems, but clearly it’s moving. Here is my quick list of ideas for making the bill better if this is what we're stuck with.

 

1.    Restore      the Employment-Based Immigration Categories

Senate Republicans who dislike “chain migration” and the green card lottery succeeded in getting a merit-based point system included in the bill. But they got carried away and scrapped the employment-based immigration system as well. The outstanding researcher/professor, extraordinary ability artists/athletes/scientists/educators, national interest, physicians for medically underserved areas and nurse categories are all whacked as well as the labor certification system which requires employers to go through an extensive recruiting process to prove that Am

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an workers are not available to work at a competitive wage. The employment-based immigration system was not broken and didn’t need this fixin’.

2.   

Fix      the Sanders Amendment

What planet where two-thirds of Senators on when they decided that it was a good idea to impose an extra $10,000 of fees on top of the $6300 already paid in H-1B applications. Tack on legal fees and you’re looking at more than $20,000 per H-1B worker. All this will do is cause Am

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an employers to look to accelerate outsourcing plans and employ workers overseas where they are both available and won’t bankrupt the company. And non-profits and smaller companies will simply do without. When your kid is in a classroom with 45 other kids next year, thank Bernie Sanders. 

3.    Get      rid of the one year gaps in the Y visa.

The Senate bill requires Y visa guestworkers to leave the

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after two years of work and then go home for a year before coming back. Two years is not enough time to get a worker trained and productive and the constant churn of employees is simply not good business. If the Senate insists on a home return requirement, extend the length of the admission period to something more reasonable like four years. 

4.    Move      spouses and minor children of permanent residents into the immediate      relative category. 

Most Am

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ans are surprised when they find out a husband or wife who we’ve welcomed as a permanent resident in this country must wait five years or more to be reunified with their spouse. Even hard core immigration restrictionists don’t classify this group as part of the “chain migration” problem. While S.1348 shifts some of the numbers from the eliminated family categories to this group, why should they be treated differently than citizens’ spouses and children? The petitioners are people we expect to become

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citizens and the main effect of this policy is to cause unneeded hardship.

5.    Grandfather      employment-based green card cases filed prior to the effective date of the      point system. 

When I first read the point system section of the statute, I thought the language did, in fact, allow cases filed up to the point system commencement date to be considered. The language says that cases pending on the effective date will be allowed to continue. But there is a subclause earlier in the paragraph that says that the application must also be filed before the law was introduced. That’s May 15, 2007. So any cases being filed now until potentially up to September 30, 2008 will be flushed down the toilet if the bill passes. Surely no one in Congress thinks this is good public policy?

 

6.    Bring      back experience equivalency in H-1B cases. 

Under current law, H-1B applicants can show they are qualified in a specialty occupation by showing they have the appropriate university degree or equivalent experience. For every year of university that’s lacking, an applicant must show three years of progressive experience in his or her field. Maybe you’re an engineer with a Ph.D. who has taught high school math for ten years or a journalist with a business degrees and several years experience writing for newspapers. Or maybe you’re a computer programmer with 25 years experience and began work in the field when university degrees weren’t available. Too bad – you’re not welcome anymore on an H-1B visa.

 

7.    Don’t      restrict doctors to the J-1 visa. 

Physicians currently coming to the

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to train enter on either the J-1 or the H-1B visa. Those that come on the J-1 must usually work in an underserved area before they can permanently settle in the

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. Doctors who train on H-1Bs do not have a service requirement. In fact, the H-1B cap rules actually discourage many from going to underserved areas because they cannot get a visa when they finish their training. A section of S.1348 would require all doctors to come on J-1s. Unfortunately, there are only 1,500 waiver slots available each year and between three and four times as many physicians who come on visas. So the change will mean many more physicians have to leave the country when they finish training. Furthermore, many top medical research institutions don’t qualify for those J-1 waivers and risk losing their best candidates to overseas institutions. A better approach would be to give incentives to H-1B physicians to work in underserved areas such as exemptions from the H-1B and green card caps.

8.    Put      the SKIL Act back in. 

Last year the Senate bill included provisions creating a variety of carrots including H-1B and green cap exemptions to attract high level professionals in science, technology, engineering and math as well as in medicine. Plus, it created a green card cap exemption for nurses, a field with a frightening shortage expected to last for decades as the

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population ages. S.1348 left most of it out. If the Senate truly wants to make the

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more competitive, it needs to put SKIL back in.

 

9.  Combine the family immigration and points-based immigration system.

There are many strong arguments that family-based immigrants integrate well in to the

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and family immigration has been a major success over the generations. Rather than scrapping the categories for adult children, why not add elements of a point system where family immigrants would be prioritized based on a merit system. In other words, a sister of a

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citizen with a Ph.D. will be prioritized over one with no high school degree. Call it the family “plus” system where family relationships would be required in these categories, but someone would need to bring something additional to the table. 

10.     Move      the family cut off date from May 2005 to the date of enactment.

If the family categories are to be scrapped, then at least be fair about it. The statute says that only cases filed prior to May 2005 will be processed and that everyone after that date is out of luck and must re-file under the point system (assuming the person is eligible). One can debate whether the categories should go, but it is really unjust to deny all the cases of people who were just following the rules. The statute doesn’t even offer a refund of the filing fees. Better to just consider all cases filed prior to the law passing.

THE PUBLIC OVERWHELMINGLY LIKES THE SENATE APPROACH

Every blowhard who gets up and insists that the public doesn't support legalization or a guest worker program should read this.

THOUSANDS OF GREEN CARD CASES COULD GO DOWN THE DRAIN IF SENATE BILL PASSES

My friend Gary Endelman, a frequent ILW.com contributor, has pointed out that Section 502(d) allows green card and labor certification cases filed prior to the date of INTRODUCTION of the bill on May 15, 2007 and not all cases filed before the bill is enacted. This will now create a tremendous amount of uncertainty while people try and weigh whether to hold off and wait on Congress to enact the new law or file now before the point system kicks in.

SENATE VOTES TO KILL THE H-1B VISA (REALLY)

Ya know the phrase "Pigs get fat, hogs get slaughtered?" Well, Congress' zeal to punish employers who hire H-1B workers has resulted in passage of the Sanders Amendment, a measure that imposes an extra $26,500 fee on H-1B workers - one $8500 tax at the time of the initial application, one $8500 fee at the time of the first extension and one $8500 fee when the H-1B applies for a green card. That's on top of the fees already in place for H-1Bs.

Just to show you I'm not kidding,here's the text -

Download Sandersh1bscholar.pdf  . Thomas Friedman where are you?

[UPDATE: The amount was dropped from $8500 to $5000 at each stage (although this is not clear - one of my sources is saying $3500 and others are saying $5000 - I'll get this nailed down shortly). That was really very generous don't you think </sarcasm off>]

[UPDATE: I really shouldn't rely on Information Week which mentioned in their article that adjustment to permanent residency were also subject to the fee. They're wrong. It looks like it just applies to initial H-1B cases and extensions. ]  What I'm trying to figure out is whether all H-1Bs are covered or the ones exempt from the training fee now are also exempt from the new fee.]

DORGAN AMENDMENT TO SUNSET Y VISA PROGRAM DEFEATED

It was a close one with 49 votes against and 48 for. Senator Akaka changed his vote three times! This measure would have sunset the Y program after five years. I love how the supporters of the amendment made it sound soooo easy to extend a program. That's completely dishonest. It's very easy for a worthy program to fail to get extended simply because Congress gets distracted or short term issues mean the support for extension disappears. Anyone remember the H-1A nursing visa that sunset in 1995? The American Nursing Association snookered Congress into thinking the nurse shortage was over because some new data came out showing the shortage easing. But as we all know, that was just a short blip in the numbers and the shortage is now dire and getting worse. Were it not for that sunset provision, we would have a lot more nurses.

COLEMAN AMENDMENT DEFEATED IN NARROW VOTE

The Coleman amendment would bar state and local governments from having rules that instruct law enforcement officers not to inquire about one's immigration status. The amendment is important because law enforcement agencies are concerned that illegal immigrants will fail to report crimes or act as witnesses when they fear being turned over to Immigration and Customs Enforcement. The supporters of the amendment were largely targeting "sanctuary" cities like San Francisco and Philadelphia. I have not seen the vote count yet, but believe it was close.

LITMUS TEST OF WHO JUST PLAIN HATES IMMIGRANTS

The Akaka amendment to expedite and ease green card processing for children of US citizens who are Filipino World War II veterans (in light of the fact that most of them are in the 80s and 90s and won't be around many more years). Folks who may vote against the big bill are still voting for this one if they have any sort of heart. The ones voting no are your hardcore anti-immigrants. The final vote tally is not up yet, but the measure passed with 86 votes.

[UPDATE} - Here is the list of shame -

Bunning (R-KY) Chambliss (R-GA) Enzi (R-WY) Gregg (R-NH)

Hagel (R-NE) Inhofe (R-OK) Isakson (R-GA) Sessions (R-AL)

Sununu (R-NH) Vitter (R-LA)

Remember the other day when I was joking about all the anti-immigrant Senators being white men from the South... And what's with New Hampshire?