The Day Of The Bandaid Is Over: Visa Retrogression And Our Moment Of Truth
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
http://www.ilw.com/articles/2005,0916-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.
Copyright © 1999-2005 American Immigration LLC, ILW.COM
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