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"Reforming Immigration" Highlights
by Gary Endelman

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography Recently the Research and Policy Committee of the Committee for Economic Development issued a report entitled "Reforming Immigration: Helping Meet America's Need for a Skilled Workforce." [Long Download] It is worth reading. For those who cannot, this column will let you in on some of the highlights. Share them with a friend.

Where you end up in life often depends on your starting point. This report starts out from the belief, one not shared by either the INS or USDOL, that the purpose of immigration policy is to "adapt to changing times and the demands of the global economy." Notice that focus is not on penalizing past transgressions but looking forward to the future and that immigration is thought of not as a political problem but an economic phenomenon. Since the purpose of immigration policy in this view is to serve the US economy, demographic changes that are reshaping the character of the US labor force are directly relevant. These changes suggest that, while immigration alone is not the answer to the aging of America, the problems created as the baby boomers grow older cannot be solved without more high-skilled immigrants in the prime of their working lives. In 1950 there were 7 working-age wage earners for every retiree 65 and older in the United States. Right now there are 5 such persons, and by 2030 there will only be 3 paying higher social security payroll taxes. In 15-20 years, the report estimates, the working age population of this country will actually start to decline, something that has already begun in Western Europe. So what you ask? This demographic shift is "likely to reduce national savings and investment, producing a slowdown in economic growth per capita on the order of 10%." Today, immigrants provide fully 1/3 of the growth in America's working age population; assuming that current levels of immigration continue, the report projects that this will rise to 50% of working age population growth during 2006-2015 and for all of it between 2016-2035 when the working age population actually starts to head south.

Not to worry you say to yourself. Congress has raised the H-1B cap, loosened up per country limits, made the H-1B itself more portable and these moves will keep America competitive in the 21st century. Right? Well, not really, at least not the way this think tank sees it. Listen to what they say about the American Competitiveness in the Twenty-First Century Act (AC21):

AC21 is a necessary response to the exploding demand for high-technology workers. But Congress missed an extraordinary opportunity-one which typically arises no more than once a decade in immigration policy - to achieve deeper, essential reforms that AC21 now makes all the more urgent... the fundamental and pervasive problems with the entire immigration system extend far beyond the need for temporary high-technology workers. By focusing narrowly on the H-1B issue and only tentatively dealing with other issues, this legislation neglects other fundamental problems. AC21 will intensify strains on the permanent admission system and generate expectations of transfer to permanent residency among H-1B workers that cannot be met, given existing limitations and backlogs for green cards. In the absence of further reforms, this policy is likely to create an additional backlog of over half a million US-based applications for permanent residence over the next five years. It is not difficult to envision the administrative crises, economic disruption and hardship for individuals that will ensue... Although AC21 improves portability of the H-1B visa between employers, it does not resolve the long-standing problem that H-1B workers seeking permanent residence are effectively tied to the employer sponsoring their green card through the lengthy certification process...AC21 , which raised the annual cap by 70% and eased portability restrictions, will likely increase the volume of petitions and produce even further delays.

What AC21 does not do is to increase the immigrant visa quotas, reform the labor certification system of indentured servitude or clean out the growing adjustment of status backlog. During the AC21 debate, critics made these same points but did so not to create a more effective system but to defeat the legislation itself. However, this is not what the Committee for Economic Development has in mind. They argue for doubling the number of permanent employment-based visas and only counting visa principals, AND NOT FAMILY MEMBERS, towards the cap. In effect, this simple change in the way we count will effectively double the number of employment-based immigrants! Beyond that, the Committee recommends that Congress restore a flexible per country limit for employment-based immigration to avoid having India and China crowd out everyone else. Such a flexible cap would limit any one nation to 10-15% of the EB quota. Once this limit was reached, nationals of that country could still immigrate but preference would be given to under-represented countries and graduates of US universities regardless of their country of origin. While we all are enthralled with the steady advance in visa availability under AC21 and the seemingly imminent prospects for elimination of the China and India EB backlogs, the reality is that there is no immigration reform on the cheap. Once China and India soak up all the remaining 140,000 numbers, what then? Will the backlogs reappear under the worldwide EB quota this time and, if they do, will we be happy at that or simply start another emergency campaign secure in the knowledge that now Congress will have to act?

Expanding the EB quotas will be meaningless without a fundamental reform of the labor certification system. For that reason, the Committee for Economic Development suggests that such a mechanism for labor market control be replaced by an attestation coupled with random audits: "An effective permanent employment admissions system must process visas in weeks not years." When the permanent system works the way it should, to promote, not prevent, employment-based immigration, a three-year H-1B will do the job as the H-1B worker moves on to permanent status. At the same time, the H-1B must be changed root and branch. It must be made truly temporary, lasting only three years with no extension. No longer should the H-1B function as "an escape valve for a dysfunctional permanent visa system." The green card must regain its rightful place as the "visa of preference for employers and workers... It must be made explicit that the H-1B visa is not an entitlement to permanent residency." The Committee even goes so far as to suggest that, once Congress sets a fixed number of core H-1B visas every three years, a market-based auction should be conducted, perhaps quarterly subject to existing prevailing wage protection and subject to random audits, for the award of additional H-1B visas in times of extraordinary demand. The idea is to allow the economy, rather than Congress, to open or close off the H-1B spigot when demand rises or falls.

Whether these proposals are the right answers, either as proposed or as reformed, whether in whole on in part, is far less important than the fact that they point the way in which we,as a nation, must travel. For far too long, we have been transfixed by the H-1B debate to the neglect of these larger and more fundamental questions. Now, it is time to begin this phase of our continuing national conversation on the kind of immigration system we need and deserve. This report may not mark the end of such a debate, or even the beginning of the end. Yet, with a proper nod to the wit and wisdom of Sir Winston Churchill at the time of the Allied invasion of North Africa in 1942, perhaps it signals the end of the beginning.

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