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Farewell Old Friend: S. 1348 And The Demise of Employer-Sponsored Immigration

by Gary Endelman

If you were not looking, you may have missed it, the closing of one era and the start of something utterly novel. When Senate Majority Leader Harry Reid of Nevada introduced The Secure Borders, Economic Opportunity and Immigration Reform Act of 2007, colloquially known to the cognoscenti as S. 1348, employer-sponsored immigration to the United States may have ended. For those who want to fix the date of death with some precision, it was May 15, 2007. What comes next? A rigidly prescribed points system based on objective factors that lend themselves to ready quantification, meaning in non-legalese, that you can add them up. While the details of comprehensive immigration reform are still being hammered out, and will doubtless be subject to a torrent of analysis by friend and foe alike, one thing stands out above the rest: the very notion of a points system for employment immigration requires the disappearance of employer sponsorship as an organizing principle. Those who miss the centrality of the points system as the sun around which all else revolves, who seek to restore their favorite visa, category or benefit without reference to its gravitational pull, cannot possibly hope to succeed. As in any historic transition, it will take time to learn the language of points, to put away the ideas and thoughts that drove the now outdated engine of employer sponsorship. Make no mistake about it, put them away we must if we are to survive and prosper in the brave new world whose promise and power we are about to experience in full measure.

Funny thing is that those who will benefit most from S. 1348 now condemn it most loudly, while those who will feel its true fury are only now beginning to wake up to the maelstrom that is about to engulf them. Pick up any major newspaper, watch your Sunday morning talk show, and you will hear the same refrain shouted from the rooftop: THIS BILL WILL DESTROY FAMILY IMMIGRATION! In fact, quite the opposite is true. While some categories are lost, S. 1348 is the biggest boon to family immigration to come down the pike in a long time. Truth be told, advocates of family migration should be lining up to sing its praises. By contrast, employers, and those who make the living by representing them, would do well to sound the alarm and rush to the legislative barricades. There has not been a more direct assault on the very notion of employer-sponsored migration in our lifetime.

Let's look at the facts. S. 1348 would eliminate the ability of adult unmarried sons or daughters of US citizens and lawful permanent residents to immigrate here on the basis of family ties. Similarly, neither the married sons or daughters of US citizens, nor their siblings, will retain the claim to any special benefit by virtue of such a family relationship. S. 1348 also redefines immediate relatives to exclude the parents of US citizens and creates a new preference category for them with a miserly annual limit of only 40,000. There is a new temporary visa that enables them to visit the kids for up to 30 days, although some hope exists for a 180 day stay. Those who filed for family members after May 1, 2005 are shut out. Pretty grim, right? Well, maybe but, then again, not really. There will be 567,000 visas made available for family-based immigration each year until the entire family backlog is gone! You heard me right: in 8 years, there will be no more waiting lines for any family visa This is the wonder drug that family migration advocates have been praying for and, when they finally get it, they walk sightless among the miracle. No longer will families be separated. No longer will family immigration be a joke, waiting for Godot who never comes. People who have been in line for years without hope can celebrate the moment of their deliverance. S. 1348 does more for family based immigration that the current system, whose repeal is bemoaned with such gnashing of teeth, could ever do.

Yes, corrections have to be made and they will be. That is what amendments are for. Some are already here with more on the way. Senator Chris Dodd (D-CONN) sponsored an amendment to increase the green card cap for parents of American citizens up from 40 to 90,000. This will pass. Senator Robert Menendez ( D-NJ) has introduced an amendment to move the cut-off date for family sponsorship up to January 1, 2007, the same date that Z guest workers have to meet. This will pass. Senator Hillary Clinton (D-NY) wants to treat the spouses and children of lawful permanent residents the same as the immediate family of US citizens, free of quota restrictions. This will pass. If it does not, there is every reason to think that, by way of compromise, the number of visas here will go up, even though the 87,000 figure represents precisely the same level of migration as under the current law. If the Senate does not go with along with Senator Menendez's proposal to allow family migration to benefit from a points system without having to amass 55 points under other criteria first, you can bet the ranch that the House of Representatives will, or insist that it be made part of any deal in conference. In sum, the primary beneficiaries of S. 1348 will be everyone in a family immigration waiting line who thought they would grow old and die while waiting for a current priority date

It is, rather, the employment immigration folks who should don black and curse the fates like Job. Look no further than what is about to hit our good buddy, the H1B temporary worker visa. No more can we substitute experience for education. No more can we dip into the 6,800 H-1B1 visas set aside for Chile and Singapore that are rarely used. No more can we confidently send our Indian and Chinese clients to US Consulate abroad secure in the knowledge that the presumption of immigrant intent will not be used by suspicious consular officials to turn them away emptyhanded. No more can we use the timely filing of an immigrant petition or labor certification before the end of their 5th year to extend H1B status past the normal six year limit. The so-called "training fee", a penalty tax in all but name, will now soar, thanks to Senator Bernard Sanders, the Socialist Senator from the Peoples' Republic of Vermont, from $1500 to $5000, not to mention the other $6,300 H1B "fees" that employers already have the privilege to pay. By the way, the Sanders fee does not exempt non-profits, universities, or small businesses.

As immigration guru Greg Siskind of Memphis accurately predicts in his running commentary on S. 1348, the best place to learn about the new law by the way, it is not hard to figure out what the Sanders Amendment will accomplish: " All this will do is cause American 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."[1] Robert P. Hoffman, a vice president of Oracle, had it right when he characterized the Sanders Amendment, ostensibly designed to underwrite scholarships for American students of engineering, mathematics, computer science or health care, as "an onerous tax on America's most innovative companies."[2] Oh, did I forget to mention that S. 1348 will force all medical residents to study on a J-1 exchange visa, thereby requiring them to go home for two years before they can get the green card? No longer can such graduate medical education or training be accomplished on an H1B. [3] With all that, increasing the H1B cap to 115,000 for FY 2008 with a possible escalation in future years to 180,000 visas is cold comfort indeed. This is very much like taking the shirt off a man's back and offering him cufflinks- he still has no clothes.

On the permanent side of the ledger, there is not much to cheer about. For the first 5 years after enactment, you have 247,000 visas but, out of this, 90,000 goes to eliminate the backlog, which is a tidy morsel, with another 10,000 set aside for "exceptional" Y guest workers, however that is to be defined, who seek to come here permanently from their home countries. For the next 3 or 4 years, until the undocumented now here can begin to adjust status, the level floats upward to 140, 000, the current level, with the same 90,000 set aside. Once the undocumented Z guest workers come on stream , the green card numbers rise to 380,000 with possible supplemental allocations if necessary. So, purely from a numbers perspective, legal immigration through employment does not experience a sustained variance once the factor of guest worker adjustments is taken out of the equation.

But, as our statistician friends are only to eager to tell you if they are honest, numbers are not the whole story. S. 1348 decapitates the entire employment preference system! Outstanding researchers, who cares? Extraordinary ability, forget about it! It gets only 8 points, or less than the 10 points awarded to someone holding a junior or community college diploma. Doing work in the national interest? We can do without it. Multinational managers? American business no longer needs them. Providing skilled workers for shortage occupations? Labor certification is as dead as the dodo bird. The talented musician, the genius computer systems designer, the innovative technology wizard who has weak English skills and no sheepskin, but does have the vision to create new industries that have not yet been born- is there a place under the points system for them? Right now, the answer is no: " Consider this," the Washington Post aptly noted this past Sunday, " If Bill Gates-who dropped out of Harvard-were foreign born and subject to the new point system, would Microsoft be able to hire him to live and work in the United States?".[4] Employers will have no way to bring in the best and the brightest to grow their companies, design new strategies or staff major projects. Add up the numbers and the merit-based point system spits out the winners. E. John Krumholtz, Director of Federal Affairs at Microsoft, may be forgiven for his less than charitable endorsement of S. 1348:" The deal is worse than the status quo and the status quo is a disaster."[5]

What is striking throughout is the clear message that S. 1348 sends to US employers: WE DON'T TRUST YOU! For that reason, we will take away your ability to file immigrant petitions or labor certifications; audit you more closely and more often; make you verify employment eligibility in an electronic fashion; and make you pay through the nose for the one visa you really want- the H-1B. From the Congressional perspective, the problem with the H is not that it is too onerous for employers but, rather, that they like it too much! Otherwise, why was the H quota used up in one day six months in advance ? This means that something is rotten in Denmark. Maybe, employers like the H because they can pay less? Well, if that is the case, thinks the suspicious Senator, what we will do is to make sure that the H costs more by hiking up the fee.

Wait, there is more! The end of employer-sponsored immigration and the inauguration of the points system do not take place at the same time. No kidding, there are two different dates when the old is no good and the new becomes available. If you can contain your excitement and read the finer points of Section 502(d)(1) of S. 1348, you will discover that the point system does not take effect until the first day of the fiscal year following enactment, unless (and there always is one) this is less than 270 days. What then? Not to fear. In that case, the point system does not "go live" until the first day of the FOLLOWING fiscal year. Keep reading! The point system in clause (1) is made expressly subject to clause (2) which has few surprises in store. It is not for the uninitiated or the faint of heart. These tender souls should protect their blood pressure and keep on reading. Pursuant to Section 502(d)(2), only those employment-based immigrant petitions on Form I-140 filed before the introduction of S. 1348 on May 15th will remain valid and serve as the basis for an immigrant visa after enactment. So what, you say? Well, suppose that President Bush signs the bill on September 10th 2007. That is the date of enactment. Now, the points system waits until October 1, 2008, the first day of the second fiscal year following enactment. From September 10, 2007 until October 1, 2008, over one year, we will have no employment-based green cards! You heard me right friend, no employer sponsorship based on anything after May 15th 2007 and no points system. This is Pat Buchanan's dream come true- an entire fiscal year without any green cards being issued on the basis of employment!

The problem is not with the points system itself. Indeed, such a scheme has much to recommend it. Most significantly, if the purpose of our employment immigration laws is to make the American economy more competitive in the global marketplace, and it is hard to imagine what other purpose it could possibly have, then the law should work the way the market works. It is simply beyond reason to have market forces operate in the real world but outlaw their presence within the cordon sanitaire of the Immigration and Nationality Act. It is precisely this pervasive disfunctionality that has created the predicate for a comprehensive attempt at social engineering, precisely what S. 1348 represents. Nationally-syndicated columnist Charles Krauthammer hit the proverbial nail on the head when he recently observed:

As the most attractive land for would-be immigrants, America has the equivalent of the first 100 picks in the NBA draft…Today, preference for legal immigration is given not to the best and the brightest waiting on long lists everywhere on Earth to get into America, but to family members of those already here. Given that America has the pick of the world's energetic and entrepreneurial, this is a stunning competitive advantage, stunningly squandered.[6]
The problem is not the notion of a points system but, rather, the kind of points system that the architects of S. 1348 have given us. There need not be any inherent incomparability between a merit-based system and one that respects individuality, creativity and extraordinary achievement. They can live together and enrich each other. There is simply no reason why modifications to a points system cannot be made that allow for all of the benefits otherwise provided by the Securing Knowledge Innovation and Leadership (SKILL) bill previously introduced by Senator John Cornyn, Republican of the Great State of Texas. Extraordinary ability, outstanding research, advanced expertise in science, technology, engineering or mathematics- all this can be saved for the future if the legislative expression of such benefits can be harmonized with, and given expression by, the point system. There is no reason why, as Greg Siskind so cogently advocates, family values cannot be built into a points-based immigration framework, thus providing an alternative to outright repeal of existing family options:
Rather than scrapping the categories for adult children, why not add elements of a points system where family immigrants would be prioritized based on a merit system. In other words, a sister of a US citizen with a Ph.D. will beprioritized over one with no high school degree.[7]
It is entirely the case that those who unnecessarily burden S. 1368 do not realize the consequences of their actions. Their intent is good, it is their execution that so troubles us. Take Sen. Sanders for example. What does he really want? To kill the H1B? Maybe. His comments on the Senate floor this past Thursday night certainly lend themselves to such an interpretation. However, there is another way to look at it. Senator Sanders wants money for a scholarship program for American students. Well, Senator, you won't get it through an exorbitant H1B that most employers will not want to or be able to pay. Not even Tony Soprano can get more out of a business than it makes. Those who decry the Sanders fee are going about it all wrong. Try a different tack. Rather than attacking Senator Sanders, convince him that he will NOT get the money he wants with a high fee, but WILL get it with a lower fee. I bet you that Senator Sanders will jump at the chance to change is own amendment. He is not on a suicide mission and simply does not realize that a $5000 fee is simply too high to yield much revenue for his pet project. Did Congress really intend to invalidate all labor certifications or I-140 petitions filed after May 15, 2007? Surely this is an act of omission, an occasion not of deliberate malfeasance but accidental inelegance. Either way, it can easily be fixed, either in conference or by a manager's amendment in the Senate. Restore rationality by grandfathering all immigrant petitions or labor certifications filed before the points system kicks in.

There is going to be a new immigration law based on a points system. Representative Steny Hoyer of Maryland, Majority Leader of House Democrats, has already announced that the House of Representatives will take up immigration reform this coming July. The Senate will pass a bill and President Bush, anxious, indeed desperate for a domestic achievement, is sure to sign it s into law. The conservative bill that emerges from the Senate will be transformed and greatly liberalized by the House. The House will not accept a points system; Rep. Zoe Loefgren (D-CA), chair of the House Immigration Sub-Committee has already said that. In conference, Senator Kennedy will give the House almost all the goodies that it wants, but he will insist on retention of the points system, knowing he has pledged this to Kyl and realizing that on the honoring of this pledge depends Senate passage. So, in the end, the Conference will enshrine the more expansive goals of the House , but in the language of the Senate point system.

S. 1348 has taken all the flexibility out of the points system concept, making it more rigid and less useful than it has to be. Opponents deceive themselves at their own peril if they think Congress will scrap the points system or sunset it. That is why Sen. Obama's proposal to insert a 5 year sunset provision is a non-starter. The only way that Congress can legalize the undocumented and sell a massive guest worker program to a skeptical public is to tear up the current permanent system, throw it away, and start with something totally new. That is why the points system is a political necessity to the legislators who must attach their name and their votes to this experiment. So, the issue is not whether we will wind up with a points system, but, rather, what kind of points system. By restoring its' suppleness, the architects of the points system will not only defuse much of the opposition to it but, most importantly, enhance its value by preserving the best that the system of employer sponsorship has to offer. Yet, and here is where the business lobby must adjust its thinking, such preservation cannot take place in opposition to a points system but only as part of it.

Abraham Lincoln's Second Annual Message to Congress on December 1, 1862, said it best: "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."[8] Amen.

The choice is ours.
1Greg Siskind's invaluable commentary on S. 1348 can be found at http://blogs.ilw.com/gregsiskind
2 Robert Pear, "Many Employers See Flaws As Immigration Bill Evolves," New York Times ( May 27, 2007) http://www.nytimes.com/2007/05/27/washington/27immig.html
3Greg Siskind explains the utterly devastating effect of this change. Taking away the H1B option means that fewer international medical graduates will treat poor Americans in medically underserved areas. Beyond that, even if they wanted to, these newly-minted MD's could not do so since there are only 1, 500 J-1 waivers granted per year and 3 to 4 times as many foreign-born doctors come to the United States. So, as Greg Siskind aptly points out, the change will force this invaluable talent to leave the United States upon completion of residencies and fellowships. "Furthermore, " Greg notes, " many top medical research institutions don't qualify for those J-1 waivers and risk losing their best candidates to overseas institutions." What to do? Greg tells us:" 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." All this wonderful stuff can be found in Greg Siskind's blog on S. 1348. http://blogs.ilw.com/gregsiskind
4 Anthony Faiola and Robin Shulman, " Top Talent Could Lose Fast Track to U.S." Washington Post ( May 26, 2007). http://www.washingtonpost.com/wp-dyn/content/article/2007/05/25/AR2007052502472.html?sub=AR
5Robert Pear, "Many Employers See Flaws As Immigration Bill Evolves" New York Times (May 27, 2007).
6Charles Krauthammer, "Amnesty Acceptable It It's The Last." (May 25, 2007) http://www.realclearpolitics.com/articles/2007/05/amnesty_acceptable_if_its_the.html
7http://blogs.ilw.com/gregsiskind/ May 27, 2007
8 http://home.att.net/~rjnorton/Lincoln78.html


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.


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