A Dozen Things to Fix Before Passing the Senate Immigration Bill
by Greg Siskind
The Senate's immigration bill is chock full of problems, but clearly it's moving. Here is my quick list of ideas for making the bill better.
1. Restore the Employment-Based Immigration Categories
Senate Republicans who dislike "chain migration" and the green card lottery succeeded in getting a merit-based point system included in the bill. But they got carried away and scrapped the employment-based immigration system as well. The outstanding researcher/professor, extraordinary ability artists/athletes/scientists/educators, national interest, physicians for medically underserved areas and nurse categories are all whacked as well as the labor certification system which requires employers to go through an extensive recruiting process to prove that American workers are not available to work at a competitive wage. The employment-based immigration system was not broken and didn't need this fixin'.
2. Fix the Sanders Amendment
What planet where two-thirds of Senators on when they decided that it was a good idea to impose an extra $10,000 of fees on top of the $6300 already paid in H-1B applications. Tack on legal fees and you're looking at more than $20,000 per H-1B worker. 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. When your kid is in a classroom with 45 other kids next year, thank Bernie Sanders.
3. Get rid of the one year gaps in the Y visa.
The Senate bill requires Y visa guestworkers to leave the US after two years of work and then go home for a year before coming back. Two years is not enough time to get a worker trained and productive and the constant churn of employees is simply not good business. If the Senate insists on a home return requirement, extend the length of the admission period to something more reasonable like four years.
4. Move spouses and minor children of permanent residents into the immediate relative category.
Most Americans are surprised when they find out a husband or wife who we've welcomed as a permanent resident in this country must wait five years or more to be reunified with their spouse. Even hard core immigration restrictionists don't classify this group as part of the "chain migration" problem. While S.1348 shifts some of the numbers from the eliminated family categories to this group, why should they be treated differently than citizens' spouses and children? The petitioners are people we expect to become US citizens and the main effect of this policy is to cause unneeded hardship.
5. Grandfather employment-based green card cases filed prior to the effective date of the point system.
When I first read the point system section of the statute, I thought the language did, in fact, allow cases filed up to the point system commencement date to be considered. The language says that cases pending on the effective date will be allowed to continue. But there is a subclause earlier in the paragraph that says that the application must also be filed before the law was introduced. That's May 15, 2007. So any cases being filed now until potentially up to September 30, 2008 will be flushed down the toilet if the bill passes. Surely no one in Congress thinks this is good public policy?
6. Bring back experience equivalency in H-1B cases.
Under current law, H-1B applicants can show they are qualified in a specialty occupation by showing they have the appropriate university degree or equivalent experience. For every year of university that's lacking, an applicant must show three years of progressive experience in his or her field. Maybe you're an engineer with a Ph.D. who has taught high school math for ten years or a journalist with a business degrees and several years experience writing for newspapers. Or maybe you're a computer programmer with 25 years experience and began work in the field when university degrees weren't available. Too bad - you're not welcome anymore on an H-1B visa.
7. Don't restrict doctors to the J-1 visa.
Physicians currently coming to the US to train enter on either the J-1 or the H-1B visa. Those that come on the J-1 must usually work in an underserved area before they can permanently settle in the US. Doctors who train on H-1Bs do not have a service requirement. In fact, the H-1B cap rules actually discourage many from going to underserved areas because they cannot get a visa when they finish their training. A section of S.1348 would require all doctors to come on J-1s. Unfortunately, there are only 1,500 waiver slots available each year and between three and four times as many physicians who come on visas. So the change will mean many more physicians have to leave the country when they finish training. Furthermore, many top medical research institutions don't qualify for those J-1 waivers and risk losing their best candidates to overseas institutions. 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.
8. Put the SKIL Act back in.
Last year the Senate bill included provisions creating a variety of carrots including H-1B and green cap exemptions to attract high level professionals in science, technology, engineering and math as well as in medicine. Plus, it created a green card cap exemption for nurses, a field with a frightening shortage expected to last for decades as the US population ages. S.1348 left most of it out. If the Senate truly wants to make the US more competitive, it needs to put SKIL back in.
9. Combine the family immigration and points-based immigration system.
There are many strong arguments that family-based immigrants integrate well in to the US and family immigration has been a major success over the generations. Rather than scrapping the categories for adult children, why not add elements of a point 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 be prioritized over one with no high school degree. Call it the family "plus" system where family relationships would be required in these categories, but someone would need to bring something additional to the table.
10. Move the family cut off date from May 2005 to the date of enactment.
If the family categories are to be scrapped, then at least be fair about it. The statute says that only cases filed prior to May 2005 will be processed and that everyone after that date is out of luck and must re-file under the point system (assuming the person is eligible). One can debate whether the categories should go, but it is really unjust to deny all the cases of people who were just following the rules. The statute doesn't even offer a refund of the filing fees. Better to just consider all cases filed prior to the law passing.
11. Stop messing with 214(b), the non-immigrant intent
Hidden in the student visa provisions is a clause to eliminate dual intent for H-1Bs and L-1s. These are crucial provisions that make it possible for people to enter on multiple-year visas without having to prove a negative - that they won't stay permanently in the US. We should consider scrapping 214(b) all together for all categories, not expanding it.
12. Deal with the nurses
Every major CIR bill to date has had provisions to alleviate the severe nursing shortage in the US. S.2611, last year's Senate bill, had a provision getting rid of the green card cap for ten years. The STRIVE Act in the House has a provision doing the same thing plus allowing for direct consular filing of I-140s. Apparently, the obstacle here is Senator Durbin who has been pushing a $1500 per nurse tax. New studies are showing that facilities lacking sufficient numbers of nurses have higher patient mortality rates so this issue is literally a matter of life and death.
Greg Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.