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Keeping Score: Why The Senate Points System Does Not Add Up

by Gary Endelman and Asher Frankel

Will the points system in the pending Senate immigration bill keep open the talent pipeline on which the American economy depends? That is the question of the moment and the reason why friends of immigration reform whose solid support can normally be counted upon are now having serious second thoughts. In an information age when change is the only reliable constant, will a rigid formula enable us to adapt at the speed of business? Closing off the migration avenue for the most creative people whose imagination, energy and talent keep our system forever young, strikes syndicated columnist Charles Krauthammer as a "staggeringly stupid idea... reason alone to vote against this immigration bill." Moreover, the paradigm shift from a family-based to a skill-based immigration system does not mean that the notion of employer-sponsorship also has to go. In a free market world, it is the employer, not the government, who determines what the employer needs and when. The reason is not an ideological one, though the expression of it may sound so to the uninitiated. Rather, the sustaining rationale is an intensely pragmatic one, namely talent is not fungible but highly idiosyncratic. Genius, by its very nature, is not a standard commodity that readily lends itself to easy quantification . That is the problem that employers have with the notion of a points system. In a recent editorial, the Wall Street Journal put it this way:

U.S. businesses aren't looking for skilled workers in general; they're looking for people with specific skills. And in the high-tech industry especially, where the demand for new products and services is constantly changing, employers need the flexibility to fill critical positions as quickly as possible. The last thing Hewlett-Packard or Texas Instruments needs is uncertainty about whether the workers they want to hire will pass some bureaucratic point test. If the Senate wants the U.S. to keep attracting the world's best and brightest, this bill is an odd way of showing it.
The true objection to the Senate points system is that it is all sizzle with no steak that does not deliver on its main selling point. The justification for a points system is not hard to make. Joel D. Kaplan, White House Deputy Chief of Staff and the guru who sold the Senate points system to Senator Jon Kyl and Republican colleagues, advanced it as the inevitable consequence of ending chain migration: " We have a system today that is very heavily weighted to whether or not you happen to have a family member in the US. There was a view that, if you really wanted to have an immigration system that was geared to making sure we were competitive in the 21st century, we had to try to rebalance that …and focus more on our national interests.." That is precisely the issue. Does the Senate points system make sense from a global perspective, does it restore American competitiveness and provide us with the people we need to create new jobs and raise our standard of living? Well, maybe it would be a good idea to take a look at how S.1348 compares with the points system that other developed economies with similar traditions and resources have.

Welcome to a thumbnail sketch of the Canadian points system as it applies to skilled workers! (Canada's federal points system is described in the Overseas Processing volume of the Immigration Manual at section 10, pages 13 - 26). Pull up a chair and see how this compares to what the Senate is trying to pass off as a points system. The comparison is instructive and a bit disheartening:

1. The US points system grid places great emphasis upon employment in the USA while giving very little credit for international experience. So, for example, the Senate grid speaks of "US employment" in a specialty occupation or "US employment" in a high demand occupation. It is true that 6 points can be given to a job applicant outside the USA but, save for that, experience outside the USA, however relevant and regardless of the professional level, is essentially dismissed and devalued. By contrast, work experience in Canada gets you 21 points regardless of where you got it. In Canada, it is the skill level, not the location that counts. (Immigration Manual p. 22.) By giving the cold shoulder to job skills gained in the rest of the world, the Senate points system is making a policy decision that the American system does not need such expertise. This may or may not be true but, at the very least, the American people ought to know what is at stake.

2. The US points system grid looks to the past not the future. The Bureau of Labor Statistics determines what 30 occupational categories have grown the most over the past decade; have a current US job in one of those and you can put 16 points in your basket. Previously, Canada's points system also favored specific occupations ostensibly in demand. There was a list of 1000 such occupations. There were two main problems. First, government bureaucrats were always 10 years behind in predicting which occupations would be in demand in a particular labor market. In some cases, particularly in license occupations such as medicine and/or nursing, political pressure was brought to bear to keep these job categories off the list, regardless of true labor shortages. All of this led to the second really big headache which was that the point system created unrealistic, if painful, expectations. Immigrants who possessed an occupation on the list came to Canada with the mistaken belief that there would be a job waiting for them in their filed of expertise. Boy were they surprised!

Canada learned its lesson. In June 2001, the new Immigration and Refugee Protection Act and its Regulations eliminated a points system based on "occupations in demand" in favor of a more holistic approach that sought to identify the "ideal" immigrant based on a variety of relevant factors including age, education, language fluency and skilled employment. Indeed, that is the sweet irony of the Senate bill; precisely at a time when the Canadian experience should teach us to be wary of favoring some occupational categories at the expense of others, the architects of S. 1348 do precisely that.

3. The Senate points system places only minimal emphasis upon age and then in a rather odd, almost off-handed way. First, age is not a stand-alone category but a subset of employment. Second, only 3 points are awarded and then only to workers between ages 25-39. We are left to wonder why. There is no apparent reason why age should be so marginalized. By contrast, the Canadian points scheme doles out more points (maximum of 10) and to a far wider age group (21-49). At the same time it is not all or nothing since two points are subtracted, up to a grand total of ten points, for each year the applicant is less than 21 or over the age of 49. Age in Canada counts! (Immigration Manual p. 23.)

4. The Senate points system sets aside up to 28 points on the basis of education so that, for example, a PhD or Master's in a STEM field (science, engineering, technology or mathematics) can get the full benefit. However, only the raw degree is considered, not the length of study. By contrast, in Canada, the duration of study is very much a relevant factor on the common-sense theory that degrees in different countries can mean very different things. In Canada, no value is assigned to the degree alone; only the degree when viewed in combination with the number of years of study that culminated in the degree. (Immigration Manual p. 13.)

5. The Senate bill gives a big goose egg for family ties unless you can amass 55 points under the other categories. Not so in Canada. There, so-called "Adaptability" criteria can bestow up to 10 points based upon a combination of criteria, including the presence of a family member in Canada, spouse's education abroad and previous education or work experience in Canada of either the principal applicant or the spouse. In the USA, by contrast, the educational credentials and employment history of one's spouse is never considered. Beyond that, the US system favors US citizen family ties over those enjoyed by lawful permanent residents. The adult son or daughter of a citizen, for example, gets 8 points but the adult child of a green card holder only six. Why? Is one set of relationships any less enduring, important or worthy of respect than the other? By contrast, Canada makes no such distinction and furthermore allows for a much wider range of family members, including parents and grandparents as well as children and grandchildren. (Immigration Manual p.26.)

The counter-attack by American employers against the points system has begun; the Senate will vote next week whether to restore the employer-sponsored categories and have them operate at a level of 140,000 per annum along side their point system cousin. The political problem here is that this represents an overall increase in employment-based legal immigration , something that Senator Kennedy promised Senator Kyl would not happen if we had a points system. More than any other single amendment, Silicon Valley is pressing for Senate approval of the so-called High Skilled Immigration Amendment No. 1249 sponsored by Senators Cantwell (D-WA), Leahy (D-VT), Cornyn (R-TX) and Hatch (R-UT). For some reason, Cantwell-Cornyn does not contain a waiver to the labor certification based on national interest grounds, an invaluable mechanism that many American companies have used since October 1991.There may be no reason why the national interest waiver was left out but it does not seem to be there, at least to our eyes.

Beyond that, the amendment suffers from what can charitably be described as inexact drafting. The amendment's sponsors want to restore the exemption from immigrant intent in Section 214(b) of the Immigration and Nationality Act. To do this, it purports to strike down Section 418(c)(1) of S. 1348 which would be fine except there is no such section. What Cantwell- Cornyn doubtless meant to invalidate was Section 419 (c)(1) which does place the H/L back under the immigrant intent umbrella. Also, Cantwell-Cornyn wants to restore the value of equivalent work experience when an H1B applicant lacks a college degree. A noble goal and one worth doing, but repeal of Seciton 420(a) of S. 1348 won't get you there since it is section 420(b) that invalidates work equivalence. A third and final example is the stated desire not to require all US employers to comply with recruitment and non-displacement requirements until now only the bane of H1B dependent employers and willful violators. We like that but Cantwell-Cornyn's repeal of Section 420(a) in S. 1348 seems beside that point since it is Section 421(a) which imposes these draconian penalties. Oh, it might be worth saying that Cantwell-Cornyn also scales back S. 1348's explanation of post-completion optional practical training from the proposed 24 to the current 12 months.

There are two other objections to the points system not noted above which will have very important real world consequences. One is that, with all the focus on high-tech jobs, S. 1348 conveniently forgets that there will be many so-called unskilled or semi-skilled jobs in such fields as health care, service and construction that will go empty despite their importance to those who need their services. There is no place for these "old economy" jobs in the brave new world of points. Second, the point system grid assumes that there is one national economy affecting all parts of America the same way and to the same degree, Says who? Truth is that we do not have one national economy but several regional, state and local economies with different needs and different opportunities who require different rules to run. Nowhere in S. 1348 does one sense that the architects of the Senate points system know how America works.

In the end, however, the number one problem with the Senate points system is that we have no way to know who wins. How many points are necessary? This is a policy decision that should not be left to the tender mercies of federal regulators. At the very least, any revision of the points system must include this most central feature. Beyond that, prudence suggests that, given all the doubts now surrounding a points sytem, we might approach this experiment in social engineering with some healthy skepticism and try it out first on a trial basis. S. 1348 abolishes the diversity visa lottery. Presto! We now have 55,000 visas to play with. Why not use them to operate a points system for five years on a trial basis? During this time, pass Cantwell-Cornyn and let us have two complimentary systems for a while to see how things work out. There will be time a plenty to fix things down the road. It's a start.

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.

Asher Frankel has practiced Canadian and US immigration law exclusively for twenty years and is a founding partner of Rekai Frankel LLP.

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