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The Day Of The Bandaid Is Over: Visa Retrogression And Our Moment Of Truth

by Gary Endelman

Where were you Gramps when the era of the big bandaid ended? That is the question your grandchildren will be asking and you will know how to answer: At my desk on September 13, 2005 when the U.S. Department of State issued the Visa Bulletin for October 2005. This was the moment when you first learned of widespread visa retrogression in all employment categories. Until right then, the contradictions and inadequacies of the US immigration system could be bypassed, ignored, or papered over with a series of temporary solutions that did their job, if only for a time. No longer. The system has crashed and burned. It will not come back on line in our lifetime. A new chapter has been opened and, this time, there is not a bandaid big enough for the job.

For Indian citizens, the cutoff date for baccalaureate holders in the third employment category is January 1, 1998, while Chinese nationals in this and the second employment category are backed up to May 1, 2000. The EB-2 cut-off date for Indian graduate students is pegged at November 1, 1999, a modest advantage over their EB-3 brethren, but not much. What is perhaps most shocking is that the retrogression virus has infected the precincts of the priority workers, until now a virtual cordon sanitaire that we all thought (or hoped) would be immune from the winds of change. Even multi-national managers, outstanding professors/researchers and/or persons of extraordinary ability are going to be in for a long wait, at least if they have the misfortune to be Indian or Chinese. EB-1 India has retreated to August 1, 2002, while the People's Republic of China (PRC) is all the way back to January 1, 2000. By the way, the same Visa Bulletin that brought this cheery news also cautioned that the remainder of 2005 will see little forward movement in priority dates.

Why should we care you say? Here's why: Please say hello to Section 245(a)(3) of the Immigration and Nationality Act which prevents anyone from seeking to adjust their status to lawful permanent resident unless "an immigrant visa number is immediately available to (the worker) at the time his(or her) application is filed." The October bulletin means that it will be many years before anyone with a Bachelor's degree, or anyone from India or China in the EB-2 or the EB-1 categories, will be able to file an I-485 adjustment application or have the exquisite pleasure of applying for an immigrant visa at one of our friendly US Consulates around the world. Enlightened minds like Dinesh Shenoy want to allow the beneficiaries of approved I-140 petitions to get in the green card line, even if their priority dates are years into the future. See,0916-shenoy.shtm. A good idea that has much to commend it but it has two problems. First, it ain't gonna happen and second, even if it did, the patient would still be sick. Even a good bandaid sometimes just is not enough.

Here is where the rubber meets the road: Most immigrants who come to the United States to work do so under one or another of the family quota categories without any labor market control test. The few unfortunate souls who do not have sufficiently recent family ties to link up with this chain migration have to resort to immigration through employment. There are only 140,000 employment-based visas in any fiscal year and most of these go to spouses and unmarried minor children, rather than visa principals. Now, if you figure that there are over 300,000 labor certifications gathering dust at the two backlog elimination centers, a euphemism if there ever was one, and they will be evenly split between EB-2 and EB-3, it does not take a Nobel Laureate to calculate the impact on visa waiting times. Even if we ignore the fact that immigrant families tend to be larger and indulge the fantasy that this is not so, conservative estimates tell us that a tsunami of about 1 million EB-2 and EB-3 cases will be dumped into the system pretty soon if PERM works the way we all hope it will. This, of course, does not factor in the great many immigrant cases where no labor certification is required, such as the national interest waiver, outstanding researcher, extraordinary ability or multi-national manager applicants. This is a classic example of how even really good bandaids, like 245(i) and PERM, can have severely unanticipated consequences.

The problem with bandaids is not that they fail, but that they work, often too well. By treating the symptoms without addressing the underlying sickness, these interim measures actually made the long-term situation measurably worse by lulling people into a false sense of security and thereby wasting precious time during which a true solution could have been implemented. While we were all focused on taking full advantage of the short-term fix, the fundamental misalignment of the system remained unaddressed. Has it really turned out to be all that great to have the H quota set at 195,000 for several years? How many of these "nonimmigrants" have gone home? What do the advocates of a higher H quota say now about their crusade? They have suddenly lost their voice it seems. The visa retrogressions are the direct result of the huge strides made by the USCIS's backlog elimination efforts that former Director Aguirre, now on his way to Madrid, can rightly claim credit for. PERM does offer some hope for keeping labor certification alive. The recapture of thousands of unused immigrant visa numbers by AC 21 and the Real ID Act, with the latter being the only reason why Schedule A Third Category remains available, were all genuine victories. The ability to get 6, 7, even 9 years in H-1B status, as provided for by Section 106(a) in AC 21 does keep hope alive for the talented scientists and engineers so esential to our economy. Now, with per country caps a serious problem in the EB arena for the first time, the ability to get 3 years at a time more to stay in the USA under AC 21 Section 104(c) for the H-1B beneficiaries of approved I-140 petitions is a lifeline to their continued pursuit of the American dream. No honest observer can be dismissive of what these bandaids have meant and continue to mean to the individuals involved or their families.

But, how long will an employer wait for the magic green card to come? If a freshly scrubbed Indian or Chinese college graduate has to sit on his or her heels for, pick a number, 15 years, will any serious employer be that patient? Once this truth spreads throughout US campuses, and the true effect of visa retrogression sinks in, is there any question that the best and the brightest international students will accept jobs overseas because there are no available options for them to live and work in the United States? When this happens, how long, if at all, will it be before US employers, who depend on such talent to develop new products and technologies on which they depend to stay alive, follow and increasingly relocate top-end jobs, especially research and development, where the big brains are? Is there any question that visa retrogression will only accelerate the exodus of white collar jobs from the United States to India, China and Eastern Europe? While family ties do not wither with time, workplace relationships undoubtedly do and no employer will put his plans on hold forever while the goal of the green card remains a distant and elusive dream never to be realized but always out there on the horizon. Indefinite H extensions or adjustment of status portability, to name but few favorite AC 21 bandaids, will offer cold comfort to an alien whose job has migrated to Bangalore or whose H-4 spouse has seen their career frozen by visa immobility.

There are things which can be done but the solutions are far less important than realizing the problem is not temporary but permanent, a consequence of deep-seated structural imbalances that few want to confront. The pressure on employment visas will not lessen until the dominance of family migration is ended. So long as employment is an afterthought, so long as the extended family is given preferences it does not deserve and privileges it did not earn, there is no possibility for sustained visa advance on the employment side of the ledger. If the imimgration bar really wants to help its business clients, lobby for an immediate end to the diversity visa lottery, thus liberating 55,000 numbers for EB categories. This is already taking place with action by the Republican-dominated House Immigration Subcommittee without any support from those who stand most to gain. If the business community really wants to keep top young foreign talent here, lobby for an immediate end to all family-based categories with the exception of the family 2A that should be unlimited, much as immediate relatives are now. We all love our siblings and older or married children, but few of us live with them. Progress on the employment front will not happen unless the biological family is enshrined as the guiding precept of family migration and all else is dropped, root and branch.

It is not necessary, nor is it particularly logical, for derivative family members to be counted against the EB immigrant visa quotas. Why is this done? Why not count only principal visa applicants? This is done with the H-1B and E-3 quotas, why not here? Simply by changing the way we count immigrant visa applicants would exponentially enlarge employment flows to the USA without the need for Congress to create a single new immigrant visa.

Why is it hard to stay in the United States, but easy to come, and should it not be precisely the opposite? Why do we have limits on the number of immigrant visas but none on the nommigrants which is where virtually all the immigrants come from? Could we not have numerical caps on nonimmigrants that, if not met, would simply default over to the permanent visa applicants so that more of them could come? Why are immigrant visas allocated by nation states so that Denmark gets the same amount as China? Would it not make more sense to choose a method that reflects the importance of the country or the importance of the individual skill set to the American economy ? Why do we reward past achievement rather than nurture future potential? The answers to these and many other questions are the subject for open and honest debate by serious men and women of genuine concern and honest good will. The important point is to ask the questions, whatever the answers may be. Sometimes, palliatives make the patient worse by hiding the true symptoms. Sometimes, bandaids let us forget how sick the patient truly is. Perhaps, after the October Visa Bulletin, now is a time to remember.

About The Author

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

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.