Immigration lawmakers try to pick winners and losers.  The problem is that just like a broken analog clock with its hands frozen in place, the timing is mostly wrong. 

This brings me to one of my pet peeves. It bothers me that the immigration laws and agency regulations favor some fields of study and disfavor others. Why for example are students in the STEM subjects(Science, Technology, Engineering and Math) given 27 months of "optional practical training" -- a euphemism for work permission --- while liberal arts students get only 12 months? Do Congress and the immigration agencies think we have too many poets, philosophers, filmmakers, painters and writers?  Has the Department of Labor's Bureau of Labor Statistics (BLS)sifted the data and concluded that there is a surfeit of linguists, social workers and ethicists?  You wouldn't think so from BLS publications. 

For that matter, how do politicians and bureaucrats know whether a bachelor's degree is the right level of education for new labor-market entrants to serve America's present and future needs?  The short answer is they don't. 

Thirty-one days ago, before the massive spill in the Gulf of Mexico, few would have predicted that oil-spill clean-up workers would be in high demand. Fewer still could have predicted that a silver-tongued college graduate who majored in poli-sci, the son of a Kenyan immigrant, would become the leader of the free world.   American lawmakers and agency officials are simply no better than the Soviet commissars who thought, wrongly it turned out, that they could direct a planned national economy. 

Two recent articles, "Why Liberal Education Matters," by Peter Berkowitz, and "Plan B: Skip College," by Jacques Steinberg, illustrate my points.

Berkowitz, a senior fellow at Stanford's Hoover Institution and co-chair of a task force on the virtues of a free society, extols the societal contributions of liberal-arts students:

How can one think independently about what kind of life to live without acquiring familiarity with the ideas about happiness and misery, exaltation and despair, nobility and baseness that study of literature, philosophy and religion bring to life? How can one pass reasoned judgment on public policy if one is ignorant of the principles of constitutional government, the operation of the market, the impact of society on perception and belief and, not least, the competing opinions about justice to which democracy in America is heir?

How can one properly evaluate America's place in the international order without an appreciation of the history of the rise and fall of nations, and that familiarity with allies and adversaries that comes from serious study of their languages, cultures and beliefs?

Steinberg -- a New York Times education writer -- takes a different tack, suggesting that we short-change our youth, while saddling them with long-term debt, by failing to recognize that for many of them specialized training and vocational apprenticeship may be far more valuable:

The idea that four years of higher education will translate into a better job, higher earnings and a happier life — a refrain sure to be repeated this month at graduation ceremonies across the country — has been pounded into the heads of schoolchildren, parents and educators. But there’s an underside to that conventional wisdom. . . .

“It is true that we need more nanosurgeons than we did 10 to 15 years ago,” said [Economics] Professor [Richard K.] Vedder, founder of the Center for College Affordability and Productivity, a research nonprofit in Washington. “But the numbers are still relatively small compared to the numbers of nurses’ aides we’re going to need. We will need hundreds of thousands of them over the next decade.”. . .

College degrees are simply not necessary for many jobs. Of the 30 jobs projected to grow at the fastest rate over the next decade in the United States, only seven typically require a bachelor’s degree, according to the Bureau of Labor Statistics. Among the top 10 growing job categories, two require college degrees: accounting (a bachelor’s) and postsecondary teachers (a doctorate). But this growth is expected to be dwarfed by the need for registered nurses, home health aides, customer service representatives and store clerks. None of those jobs require a bachelor’s degree.

My point is not to jettison thoughtfulness when trying to fashion new immigration laws that will best suit our 21st Century needs.  Rather, what a wonderful world it would be, I believe, if our lawmakers and immigration bureaucrats adopted a bit of Sam Cooke humility:

Don't know much about history

Don't know much biology

Don't know much about a science book

Don't know much about the French [we] took . . .

Don't know much about geography

Don't know much trigonometry

Don't know much about algebra

If not a wonderful world, then certainly a better nation America would be if it provided the flex in our legal system to make room in this country for bright, hard-working, well-educated or suitably-trained immigrants to serve our economic, political, cultural and societal needs in future decades.

Perhaps I was naive to have expected more thoughtful analysis from conservative writer David Frum on last Friday's Real Time With Bill Maher.  Maybe what lowered my guard was Frum's refreshing candor in criticizing as a failed strategy the Republicans' "just say no" approach to the health care act, and suggesting that bipartisan engagement might have produced legislation more to the GOP's  liking.  Maybe my manure detector was thrown off by his even more passionate critique of Republican nihilism, Rush Limbaugh and Fox News after his firing as resident scholar by the American Enterprise Institute.

Still, for a Canadian émigré who transferred from the University of Toronto to pursue a bachelors and masters at Yale and then graduate from Harvard Law School, this former foreign student and seeming intellectual truly disappointed me with the disinformation he unloaded in his exchange with Bill Maher about the "so permissive" U.S. immigration system:

Frum:

If you're concerned about them [Muslim terrorists like confessed Times Square bomber, Faisal Shahzad] being over here, this also raises the question: So why are they here? Why is America's student visa program so permissive? Why is it so easy to be naturalized?  This is a failure of America's immigration and naturalization system.

Maher:

There's already millions of Muslims here. The problem is in their head.  Let's talk about the psychology of this guy.  He was in a [lousy] marriage, he had a dead-end job.

Frum:

Of course he was in a [lousy] marriage, he got married to get his green card. 

Maher:

His house was under water. If that's not an American, I don't know what is.

Frum:

. . . I don't know how you talk about terrorism on these shores without saying that the immigration system needs to be more restrictive.  Somebody cannot be excluded, it is illegal to exclude someone from this country -- even for a visa, never mind citizenship, even if you have evidence that the person has all kinds of radical views.  The law says unless there is an overt act, unless the person belongs to a proscribed group, or has committed a crime, that the visa officer in the foreign embassy [presumably he means the American consular officer at a U.S. consulate or embassy abroad] cannot exclude him from the country.

Maher:

Let's talk about this on a more psychological level.  That's all well and good, but you can't make laws about what's going on inside someone's mind.

Frum apparently doesn't need a law "about what's going on inside someone's mind" because he can read minds. Many terrible accusations can be made about Faisal Shahzad, but the charge of marriage-fraud is contradicted by the evidence: two children born of the marriage to Huma Anif Mian; a mortgage the couple held together; and a marriage that apparently remains intact after six years. 

Of more importance, however, are Frum's legally flawed accusations about U.S. immigration laws.  Frum neglects to mention or plainly misstates several restrictive elements of the Immigration and Nationality Act, a McCarthy-era statute, made even more restrictive by successive amendments over several years and by regulations interpreting the statute.  Here is where Frum is dead wrong:

1. The student visa system.  Far from being permissive, student visa holders in F-1, M-1 and J-1 visa status are monitored more closely than all other nonimmigrants to the United States. If a foreign student or exchange visitor fails to report to campus, fails to take a full course load, receives failing grades or otherwise fails to maintain status, U.S. Immigration and Customs Enforcement requires school officials to report the immigration violation in real time through the SEVIS (the Student Exchange Visitor Information System) database or else lose the highly lucrative authority to admit foreign students.
2. The naturalization process. Becoming a naturalized U.S. citizen is not easy.  The wait to apply is from three to five years in most cases, the oral examination has been made harder, trips abroad are scrutinized, security and criminal-law screenings are conducted, and naturalization examiners can reject the application if the individual lacks the nebulous "eye of the beholder" quality of "good moral character."
3. The power of visa officers. Consular officers are authorized to exclude individuals from this country on multiple grounds.  Their factual determinations (most of the grounds for visa refusal turn on questions of fact rather than of law) cannot be overturned by the State Department or the courts under the principle of consular nonreviewability.  An overt prohibited act, a criminal conviction, or membership in a proscribed group are not the only grounds for exclusion.   The consular officer and the inspecting officer at the port of entry each have independent power to exclude the applicant if either has "reasonable ground to believe, [that the person] seeks to enter the United States to engage solely, principally, or incidentally in . . . any . . . illegal activity." [8 U.S. Code § 1182(a)(3)(A)(ii).]  Furthermore, the law puts the burden on the individual to prove eligibility for a visa, not by the usual civil standard of a preponderance of the evidence, but rather to "the satisfaction of" the officer, and neither the consul nor the border inspector is required to reveal the underlying basis for the belief that the person will, even if only incidentally, engage in any illegal activity in the U.S. [8 U.S. Code § 1182(b)(3).] As an even stronger safeguard, even if a consular officer decides to grant the visa, the Homeland Security Department can override the decision and deny the visa.  Furthermore, even if a visa is somehow issued, it can be revoked by the consular officer or the State Department under 8 U.S. Code § 1201(i) before or after the visaholder enters the U.S., thereby making those admitted instantly deportable under 8 U.S. Code § 1227(a)(1)(B). 

Frum never said what he would do to make the immigration system "more restrictive."  Perhaps he would require that all visa applicants be administered Sodium Pentothol and attached to a polygraph during multiple visa interviews.  Or perhaps he would merely shut down the visa system and refuse entry to all foreign citizens, including Canadians (who, by the way, in most instances, are visa-exempt).  Maher is right that the government cannot pass a law "about what's going on inside someone's mind."  The U.S. should also not engage in such "shoot-oneself-in-the-foot" behavior by making it ridiculously tougher than the law already is on foreign students seeking to enter the United States. 

What the media can do is to challenge Frum and others of his ilk when they make broad and unfounded assertions about the immigration laws.  They should check with media-savvy immigration lawyers, like Victor Nieblas, a candidate for national Secretary of the American Immigration Lawyers Association whom I heartily endorse. 

What the Administration and Congress can do to protect us is to video-record all applicants as they are interviewed by consular officers and provide sufficient resources so that the interviews last longer and are more fair, probing and thoughtful than allowed now under the current process, with each interview lasting only about five minutes. Come to think of it, a longer and more thoughtful Q and A might just have an additional benefit.  Even applicants refused a visa might leave the experience feeling better that, at least, they were fairly considered as an individual by a not-so-aesthetically-challenged officer under America's clearly restrictive immigration system.