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Bloggings on Immigration Law

by Roger Algase

Bloggings: Sir Lancebarack and the Holy Grail of Immigration Reform by Roger Algase

Murali Bashyam's June 14 article about America's "Gotcha" immigration policy is a chilling account of Gestapo-like activities by an administration that appears trying to put an end to the entire system of legal immigration by skilled professional workers as we know it. This is not to say that all of these tactics are new. A few years ago (under Obama's predecessor) a client of mine went for an H-1B interview at a US consulate in Latin America and was told that his visa would be denied because he allegedly lacked "non-immigrant intent", which, of course, is not a requirement for an H-1B visa.

When I contacted the State Department, I was told that my client must have misunderstood and no one could possibly have told him any such thing. He was advised to brush up on English, which he spoke fluently. Finally the owner of the company that had sponsored him (a small one, to be sure, but one with a genuine H-1B job offer and undisputed need for the client's specialty services), flew to down to visit the consulate in person to see if there was anything could be done to resolve the situation.

When he arrived at the consulate, he was given a lecture about why he should have hired a US worker for the job instead. The visa was ultimately issued. Perhaps that is the main difference between Bush and Obama. This story, which may be typical of many other H-1B interviews around the world that have taken place in the past several years, is just one example of the bitter hostility toward skilled immigration that seems to be endemic in both the State Department and USCIS.

Last year, I attended a speech by USCIS Director Mayorkas which sounded the same theme, at least about H-1B petitions. He said that protecting US workers was a major consideration in the H-1B law. In fact, as we all know, while it is true that the H-1B system is meant to protect American wage levels, there is nothing in the H-1B law about giving preference to US workers, unless the sponsor is "H-1B dependent" or a "willful violator". There is certainly nothing in the law that would justify the police-state activities described in Mr. Bashyam's article.

The overwhelming impression is that of an out-of control administration gone wild in its zeal to nullify the entire legal business immigration system through the use of extra-legal fear and intimidation. It is not hard to tell what the explanation for this must be. Obama is obviously not against immigration on the grounds of race, as many of the Republican bigots are (even though the president is certainly not above trying to appeal to "centrist" or "independent" voters who are arguably swayed by racial considerations).  The real reason for targeting skilled immigrants as "enemies of the state" is ideological - the delusion that every job given to a foreign skilled worker deprives an American worker of the same job.

This ideology makes about as much sense as the Republicans' insistence that cutting taxes for their billionaire campaign contributors to zero will restore America to prosperity and provide jobs for all. But there cannot be any other reason for this administration's apparent determination to end business immigration. This brings up the question of what happens if Sir Lancebarack ever finds the Holy Grail of Bipartisan Immigration Reform. What kind of reform would there be in a skilled legal immigration system which is anathema to the White House for ideological reasons and to the Republicans for racial ones?

A possible answer might be in the failed 2007 Senate CIR bill. This bill would have eliminated the entire employment-based preference system for permanent residence and replaced it with an elitist point system  that, unlike the ones in Australia or Canada, would have set the bar so high that it is only a slight exaggeration to say that a handful of Oxford professors or Nobel Prize winners would have been the main ones to benefit. And this was before the current Great Recession hit.

If the Holy Grail of immigration "reform", Obama-style, ever comes to Washington, the 2007 proposal might be a template for business  immigration now - but most likely without the Oxford professors and Nobel Prize winners - or any skilled foreign professional workers at all.

About The Author

Roger Algase is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

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