Childhood Arrivals: Comprehensive or Piecemeal

There has been a lot of talk in the last few weeks about the desire of U.S. House of Representatives to "hit the reset button" on immigration reform after the U.S. Senate approved a comprehensive immigration reform bill late last month.  Political pundits have been divided between those who view the actions of the House as evidence that immigration reform is dead for the remainder of this year and those who believe that it is simply a minor delay in the process.

Rather than continue the comprehensive approach of the Senate, the House has signaled that it will tackle the matter of immigration reform piece-by-piece.  This may be good news or bad news, depending on how one looks at it.  By breaking up the proposal into parts, there may be important aspects of it, essential to our country's future, that are left behind in the debate process.  On the other hand, a piecemeal approach would allow the parts where there is general consensus to move forward in debate and possibly be approved quickly without being held back by other more controversial measures.

One of the immigration issues that has the greatest amount of political support is the question as to what to do with those who were brought illegally into the country as children.  Yesterday, House Speaker John Boehner expressed his support for granting legal status to those individuals in the country.   It was also revealed that Majority Leader Eric Cantor and Representative Bob Goodlatte are actively working on crafting such a bill.  The House Judiciary Committee is expected to hold hearings on the issue next week.

What the Cantor-Goodlatte bill will include has yet to be revealed.  However, what is clear is that the bill must build upon the Deferred Action for Childhood Arrivals ("DACA") program that was announced by the U.S. Department of Homeland Security last summer.   Since August 15, 2013, the DACA program has allowed over 400,000 individuals to remain in the country without the fear of deportation for a period of two years with an authorization to work which can be renewed.   While DACA has been a blessing for those that it has benefited, it is not a law and is simply a temporary measure.  Therefore, by definition, the Department of Homeland Security has the authority to end the program at any time.  The Cantor-Goodlatte bill, if approved, would be federal law.  Hence, it would provide the stability and clarity to would-be applicants that DACA fails to radiate.

On a August 18, 2012 post entitled, DACA, DREAM Act and the hope of tomorrow, this blog related the story of "Rodolfo":

"Rodolfo" graduated summa cum laude from high school. He went on to college where he excelled in his classes. His future would look bright except for the fact that he is undocumented. His parents brought him to this country illegally when he was just two years old. It was not his choice to come to this country. It was not his decision to be an illegal alien. But, these are the circumstances that he finds himself in. "Rodolfo" graduated college, once again with honors. It took him longer to finish than his classmates. The international student tuition that he had to pay limited the number of classes that he could take at one time. But, he found a way to continue his studies and persevere until he reached his goal--graduation. After college "Rodolfo" dreamed of finally putting his knowledge to work and finding lawful employment. However, he continues to be imprisoned by his reality-- he is an undocumented immigrant. On August 15, tears filled "Rodolfo's" eyes. They were not tears of joy. They were of continued frustration. "Rodolfo" turned 31 years old on May 16, 2012, one month too early to be eligible to apply for DACA. There will not be employment authorization for "Rodolfo" under DACA. He will have to continue to wait. Shouldn't a person of "Rodolfo's" caliber and education achievement have a chance to succeed in our country? For "Rodolfo" and others like him, DACA is too little, too late.

The following weeks and months will be crucial in determining whether piecemeal approach of the House works in tackling immigration reform.  If so, the first beneficiaries may be those such as "Rodolfo" who entered the U.S. as children illegally.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.


 

Three Ways that Immigration Reform Could Fail to Pass

On Tuesday, June 11th, the U.S. Senate voted overwhelmingly to begin debate on the comprehensive immigration reform bill.  The vote was 82-15.   The lopsided procedural victory for the bill's proponents is leading many to mistakenly believe that the enactment of comprehensive immigration reform will be swift and assured. It will be neither.   In order for comprehensive immigration reform to be enacted, both the Senate and the House of Representatives would have to vote to approve it and the President sign it.  However, it is not as easy as it appears.  While it migrates through the legislative process a bill as large as this one is often bombarded by proposed amendments from all sides.  Many amendments are rejected.  Others are incorporated into the bill.  The ones added to the bill can either increase the bill's chances of passage by recruiting new supporters or doom it by antagonizing old ones.  Therefore, whether comprehensive immigration is approved will depend on how the legislative proposal changes.

There are several ways that comprehensive immigration reform could fail to pass.  This blog will illustrate three scenarios, ranging from the least probable to the most possible.   The first way that the effort to reform the immigration law could be derailed is if the extreme left demands that the legislation include immigration benefits for same-sex couples. While twelve states, along with the District of Columbia, have enacted same-sex marriage laws, the federal government does not recognize such unions.  The Defense of Marriage Act, notwithstanding the present legal challenge at the U.S. Supreme Court, defines marriage as solely between one man and one woman for all federal purposes.  Including such a provision in the immigration reform bill would be contrary to current federal law.  Furthermore, while recent polls show that just over half of all Americans now support same-sex marriage, it is unclear whether the same amount of support would also extend to immigrants. Senator Patrick Leahy of Vermont previously offered an amendment to provide immigration benefits to gay and lesbian couples when the bill was first being discussed in the Senate Judiciary Committee, but withdrew it when it became clear that the amendment would hurt the bill's chances of being brought to the Senate floor.  Now, Senator Leahy has reintroduced his amendment.  Such a controversial change to the bill could shave off enough support from the bill to prevent it from receiving the necessary sixty votes to end debate and bring the bill up for a decisive vote. 

Another way that the comprehensive immigration reform bill could be defeated is if the extreme right includes an amendment that requires that unrealistic enforcement measures be met before most of the bill takes effect.   This could be in the form of a requirement that the U.S. spend an unconscionable amount of money to build and complete a border fence on the U.S./Mexico border.   While border security is an essential part of any viable immigration reform proposal, it should not be used as a noose to choke off other parts of the bills that are equally essential to the continual economic well-being of this country.   Another form of an unrealistic imposition is the requirement that an alien prove that he has satisfied any tax liability he may have incurred while being in the United States, before being eligible for registered provisional immigrant status.  While such a demand would make sense in theory, in practice it would be disastrous.   The individual who has been in the country in an undocumented status for over fifteen years would have a nearly impossible time gathering the necessary documents to satisfy this requirement.  Furthermore, the IRS would be inundated with new filings, which would increase the stress of its current overburden and inefficient structure, and it would create the breeding ground for widespread fraud and error.  Therefore, in light of this, including such a provision to the immigration proposal would probably be enough to tip it to the side of complete rejection.

Finally, the most probable way that the comprehensive immigration reform bill could fail to pass would be if the Senate approves its bill and the House of Representatives passes a different version and the two houses of Congress fail to reach a compromise, and therefore a bill would never reach the president’s desk for signature.   However, if they did reach a compromise, the resulting bill might not include the infamously misnamed “pathway to citizenship”.   Arguably the most controversial part of the comprehensive immigration bill currently debated in the Senate is the plan to put millions of undocumented immigrants on a long path to permanent residency, which would then give them the option of later pursuing U.S. citizenship.   A successful conclusion to a difficult negotiation between members of the House of Representatives and the Senate could end up hinging on the inclusion or exclusion of what would be properly termed as a “pathway to permanent residency”.    The negotiators could ultimately decide that the other parts of the bill are too important to risk losing in the face of opposition to the pathway to permanent residency.  They might agree, instead, to allow the millions of eligible undocumented immigrants to remain in the United States in a temporary status which would be renewable and would allow them to work legally in the country and to travel abroad.  However, such a status would not, per se, lead to permanent residency.   The negotiators might consent to revisit the possibility of those individuals being able to apply for permanent residency in the future. 

 

In the January 28, 2013 post entitled, Immigration Reform and its Two Main Adversaries, this blog stated:

Most individuals who wish to enter the United States do not want to do so to live here permanently, at least not initially. He wants to visit as a tourist, worker or student, and then return to his respective home country. There is no sense of permanence in his mind. It is only after the visitor is in the country and has accomplished his task, does the person consider stability in his life in the United States in the form of U.S. permanent residence. Finally, after acquiring residence will many of these immigrants wish a true sense of "belonging" in this country in the form of U.S. citizenship. Most individuals who would benefit from comprehensive immigration reform are in the first level--they wish to work or study in the United States without hindrance. Therefore, the vast majority would welcome a guest worker program that would help make their dreams to come true.

If the inclusion of a guest worker program is the best that can be done under the current political climate, would immigrant groups support the bill, and allow millions of undocumented immigrants to finally emerge from the shadows of anonymity and be able to obtain some sort of legal status?  Would they support the process of finally providing real reform for our nation’s immigration laws in the form of more work visas and faster immigration process?  Or will these so-called advocates take a myopic “all-or-nothing” approach and demand the bill’s defeat and the continuation of the utter failure that is the status quo?

While the comprehensive immigration reform bill enjoys a significant amount of support, its enactment into law is far from a certainty.  The three points mentioned above are probably the greatest threats faced by real immigration reform.   The coming months will be pivotal in determining if there will be real immigration reform.

The above information is provided for information purposes. It should not be construed as legal 
advice or the formation of an attorney/client relationship.

This Makes Immigration Sense-Squared

The last couple of weeks has seen a lot of talk about comprehensive immigration reform. A week ago, senators from both parties, led by John McCain and Chuck Shumer, announced the framework of a proposal that will be presented to the U.S. Congress in the near future. A day later, the President spoke in favor of the senators' framework and advocated for comprehensive immigration reform in general. However, these two events, the senators' announcements and the President's speech, are only words so far. The senators have yet to turn their framework into a legislative proposal and the President has not offered his own plan. Therefore, while these words are applauded, we must wait and see if these statements will lead to real action.

Nevertheless, lost in all of the reporting last week by the major news outlets was a real step towards action. On Tuesday, January 29, 2013, another bipartisan group of senators, led by Orrin Hatch, presented the Immigration Innovation Act of 2013 or the "I-Squared Act". In the September 5, 2012 post, entitled The Future of Immigration Reform, this blog described what consisted immigration reform. The post stated, "Immigration reform would transform people's lives forever. Immigration reform would strengthen our nation's economy and put it in a better position to compete globally."

The I-Squared Act, if approved, would be true immigration reform. The proposal would work to re-enforce the economic engine of the nation. In the November 9, 2012 post entitled, Immigration, Innovation, Stability and Confidence, this blog wrote:

One of the clearest examples of [the nation's innovation] deficiency is in the H-1B professional work visa program. The H-1B program is the mechanism by which U.S. companies can petition to bring into the country highly qualified professionals to work in such occupations as computer programmers, engineers and physicians. In 1999, the U.S. government had a yearly quota of 65,000 H-1B work visas. The U.S. Gross Domestic Product ("GDP") for that year was $11 trillion. The yearly quota of H-1B visas was then tripled to 195,000 for the next few years, until it returned to 65,000 visas in 2004. Yet, the U.S. GDP for 2004 stood at $12.39 trillion, a 12.6% increase since 1999. The H-1B visa program had not been allowed to continue to grow along with the U.S. economy. Even in light of what many call the Great Recession, the U.S. economy continues to grow overall. Yet, the H-1B program has not continued to develop to adapt to such growth. In 2005, another 20,000 visas were added to the H-1B program, which were reserved for individuals with an advanced degree from a U.S. institution of high education. However, this did little to mitigate the massive 67% drop in visas allocation the prior year. It is essential that the U.S. expand its H-1B program if it wishes to continue its economic dominance.

Senator Hatch and his co-sponsors understand this argument. Their I-Squared Act would increase the H-1B annual cap from 65,000 to 115,000. Furthermore, the proposed legislation would allow the cap to be connected to the needs of industry for the H-1Bs. The cap could be adjusted up or down each year based on economic demands. In Immigration, Innovation, Stability and Confidence, this blog wrote of a hypothetical "Company W" that was investing a vast majority of its resources in trying to develop a revolutionary product. Its prospect of being successful in its endeavor hinged on being able to employ three foreign students who had been working on a similar product. However, "Company W' was prevented from hiring the trio because the H-1B cap had been exhausted for the year, therefore putting the company's future in jeopardy. Under the I-Squared Act, this scenario would likely not occur. Under the proposed law, if the cap were hit in the first 45 days of H-1B petitions  being filed, an additional 20,000 H-1Bs would be made available immediately. If the cap were met in the first 60 days, then an additional 15,000 H-1Bs would then be available. Finally, if the cap were reached in the first 90 days or during the 185-day period ending on the 275th day on which petition may be filed, the cap would be raised 10,000 and 5,000, respectively. Likewise, the proposal sets up benchmarks for which the cap can be lowered if the yearly demand for H-1B were to drop.

Current law allows an additional 20,000 H-1B for individuals with an advanced degree from a U.S. institution of high education. The I-Squared Act would remove the cap on these filings and allow companies to fully invest in the foreign talent currently being trained in the nation's premier universities.

The I-Squared Act would also transform people's lives. Currently, there are several impediments for an individual in the United States with a student visa, to explore options in remaining the country to live. The I-Squared Act would remove these obstacles. Moreover, the proposal would allow dependent spouses of H-1B visa holders to work. Under current law, H-4 visa holders (dependent of an H-1B holder) are not authorized to work. Therefore, many individuals have had to sacrifice their careers in order for their spouse to be able to obtain an H-1B. The I-Squared Act recognizes the modern reality that many families include a husband and wife who work.

Finally, the I-Squared Act would eliminate the annual per-country limits for employment-based visa petitioners and increase the per-country caps for family-based immigrant visas. In Immigration, Innovation, Stability and Confidence, this blog argued:

The U.S. government should also shorten the wait-times for persons who wish to immigrate to the United States. Currently, some of these cases are taking more the twenty years to process. The long delays cause confidence in the system to erode, thus contributing to the undocumented immigrant phenomenon.

The I-Squared Act would adopt this view and allow individuals and families to immigrate faster to the U.S.

Since the proposal meets the definitions set out as to what immigration reform really is, (it would transform people's lives forever and it would strengthen the nation's economy), and it embraces suggestions that this blog has made in the past few months, Mundus Migrationis  has no other choice than to welcome the introduction of the I-Squared Act.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

 

Immigration Reform and its Two Main Adversaries

Recently, there has been much talk about the possibilities that this year the nation's immigration laws could finally be reformed thus allowing hundreds of thousands, if not millions, of people to work towards obtaining their lawful permanent residence.  It is expected that this coming week a bipartisan group of U.S. senators will present  a plan for comprehensive immigration reform.  The details of the plan have yet to be revealed.  Nevertheless, there is a sense that the Republicans and Democrats may join together and approve the legislation.  There have been signs recently that this could happen.  Senator Marco Rubio, Republican from Florida, has been making the rounds of news shows advocating for immigration reform.  President Obama, a Democrat, in his second inaugural address last week, also expressed support for immigration reform and a Super PAC, Republicans for Immigration Reform, was created last November with the express purpose of pushing for immigration reform.

However, the implementation of immigration reform this year is anything but certain.  In order to modify the immigration laws, proponents of the change will need to defeat its two main adversaries.  One opponent is a group that is well-known.  It is comprised of those who believe in "enforcement only".  Their position is that the nation's immigration problems can be solved with a three-pronged approach: (1) secure the U.S. southern border to prevent individuals from crossing into the country illegally; (2) increase penalties of employers who hire illegal aliens thereby decreasing the number of illegal aliens working in the country; and (3) greater enforcement of current immigration law, leading to a greater number of individuals being removed from the country.  This group led the successful opposition to the last real efforts for immigration reform in 2006 and 2007.   Yet, its influence in the political process is much weaker than in years past.  More resources than ever before have been applied to secure the southern border.   Second, in the past years the federal and state governments have taken a harsher position against business with the implementation of such programs as E-Verify. Finally, the current presidential administration holds the distinction of being the one that has removed or deported the most individuals from the country in a four year period.  Yet, there are approximately 11 or 12 million illegal immigrants who continue to reside in the country. Therefore, this group's prescriptions to the immigration problem no longer appear as convincing as before.

Although, the second group has not been as visible or vocal in the past as the "enforcement only" group, it presents as much danger to the approval of comprehensive immigration reform.  This group could be termed the "anti-guest worker" group.  Any proposal announced this year regarding comprehensive immigration reform would most likely include a guest worker program component, which if approved, would have the applicant in a temporary worker or "guest worker" status that could last between a couple of years to over a decade before the applicant would receive lawful residence, if at all.  The "anti-guest worker" group believes that a guest worker program is a non-starter in any proposal and it would lead the opposition to it. The group takes the position that a guest worker program would be tantamount to "second class citizenship", which in its view is an insult to immigrants.
  
Unfortunately, the "anti-guest worker" group fails to understand the mindset of the typical immigrant.  Most individuals who wish to enter the United States do not want to do so to live here permanently, at least not initially.  He wants to visit as a tourist, worker or student, and then return his respective home country.  There is no sense of permanence in his mind.  It is only after the visitor is in the country and has accomplish his task, does the person consider stability in his life in the United States in the form of U.S. permanent residence.  Finally, after acquiring residence will many of these immigrants wish a true sense of "belonging" in this country in the form of U.S. citizenship.   Most individuals who would benefit from comprehensive immigration reform are in the first level--they wish to work or study in the United States without hindrance.  Therefore, the vast majority would welcome a guest worker program that would help make their dreams to come true.  Yet, if the "anti-guest worker" have its way, they remain just dreams.
                                                                                                                                                              
It is only after our leaders, influential groups, and the public in general understand the levels of "temporary", "stability", and "belonging", will comprehensive immigration reform have a chance of being approved.  One of the primary reasons that the push for immigration reform failed in 2006 and 2007 was bad marketing.  It was presented at the time as a "pathway to citizenship", which gave the wrong impression that those that would benefit would skip the "temporary" and "stability" level and automatically reach "belonging" i.e., U.S. citizenship.  This was understandably repulsive to the rest of the  U.S. population, along with former immigrants who had gone through the levels themselves. The truth was that it was a "pathway to permanent residence", which would have taken the applicant to the "temporary" level first and then "stability".  While the person could have continued on to apply for U.S. citizenship, this would have been beyond the process being outlined.


Finally, comprehensive immigration reform needs to be true immigration reform.  In a September 5, 2012 post, entitled The Future of Immigration Reform, this blog stated that, "Immigration reform would transform people's lives forever. Immigration reform would strengthen our nation's economy and put it in a better position to compete globally."  The proposal expected to be announced this week in the U.S. Senate must be aimed to achieve these goals in order to be considered real reform.
If so, comprehensive immigration reform can be implemented if it can withstand the opposition of its two main adversaries, the "enforcement only" and "anti-guest worker" groups.  This can be done with a proper understanding and adequate marketing of the legislation.

The above information is provided for information purposes. It should not be construed as legal 
advice or the formation of an attorney/client relationship.

The Citizen's Almanac Part II

A few months ago, I wrote about The Citizen’s Almanac, a publication printed by the Office of Citizenship of the United States Citizenship and Immigration Services (USCIS).   I mentioned that USCIS tries to promote the importance of U.S. citizenship by giving a copy of the publication to every new citizen.  I stated that The Citizen’s Almanac includes a variety of information on the U.S., such as "Patriotic Anthems and Symbols of the United States", "Fundamental Documents of American Documents" and "Landmark Decisions of the U.S. Supreme Court".   Furthermore, I discussed how one of the most important discussions in the publication is that regarding the "inalienable rights" found in the Declaration of Independence.

Today I wish to return to the topic of The Citizen’s Almanac. An important theme that catches the reader’s attention while reading The Citizen’s Almanac is the symbolic importance of  the patriotic songs, the excerpts from historical documents such as founding documents and speeches, and the contribution made by prominent foreign born men and women.  For many Americans, patriotism is something that is unconsciously being learned from a young age. The opportunities that the United States provides for its people is what many around the world covet and will go to drastic measures to obtain but too often native born American citizens take for granted the  opportunities provided. The Citizen’s Almanac provides naturalized citizens with a simple text that promotes patriotism and a sense of belonging. However, along with opportunities, becoming an American citizen brings with it rights and responsibilities.

The responsibilities of an American citizen include:

·         Support and defend the Constitution against all enemies, foreign and domestic.

·         Stay informed of the issues affecting your community

·         Respect and obey federal, state, and local laws. 

·         Respect the rights, beliefs, and opinions of others.

·         Participate in your local community

·         Pay income and other taxes honestly, and on time, to federal, state, and local authorities.

·         Serve on a jury when called upon.

·         Defend the country if the need should arise.

The rights of an American citizen include:

·         Freedom to express yourself.

·         Freedom to worship as you wish.

·         Right to a prompt, fair trial by jury.

·         Right to keep and bear arms. 

·         Right to vote in elections for public officials.

·         Right to apply for federal employment.

·         Right to run for elected office.

·         Freedom to pursue “life, liberty, and the pursuit of happiness.”

An excerpt from Abraham Lincoln’s Second Inaugural Address is the last item printed in The Citizen’s Almanac.  It is not within any particular section.  Rather, it stands on its own on the back side of the cover. The location in which the excerpt was printed really catches the eye of the astute reader. It is as if the Office of Citizenship in publishing the publication was making sure that if nothing else throughout the text caught the reader’s attention, then it would make one final effort to make sure that at least thing remains in his mind. It is ironic that after last year’s presidential election the president that was in the spotlight was Abraham Lincoln. President Lincoln was the hot topic because residents in approximately thirty states had filed secession petitions with the “We the People Program” on the White House website. After reading the excerpt from Lincoln’s second Inaugural Address one is reminded why Lincoln was such an important figure.

“With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation’s wounds; to care for him who shall have borne the battle, and for his widow, and his orphan—to do all which may achieve and cherish a just and a lasting peace, among ourselves, and with all nations.”— Abraham Lincoln’s Second Inaugural Address, March 4, 1865.

The Citizen's Almanac is a wonderful tool in understanding what it is to be "American". It is available for purchase from U.S. Government Printing Office at bookstore.gpo.gov.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship.

On the Path to Reform

A few weeks ago, this blog highlighted the need to reform our current immigration laws.  This week we have seen concrete steps taken to reach that goal.  On Friday, November 30th, the U.S. House of Representatives voted and approved the STEM Jobs Act of 2012.  The bill now goes to the U.S. Senate for consideration and, if approved, will be presented to the President for his signature.

The STEM Jobs Act is not a new proposal.  It was presented for a vote in September, but had failed to receive the necessary 2/3 votes that it required at the time under a special voting procedure.  Now, under a more simplified majority vote, it has passed.

If enacted the STEM Jobs Act would make available 55,000 immigrant visas a year for individuals who obtain a doctorate degree in a field of science, technology, engineering, or mathematics ("STEM") from a U.S. university.  Any immigrant visas not allocated under the aforementioned criteria, will then be made available to those holding a master's degree in a STEM field from a U.S. university.  

This blog previously stated in the November 9, 2012 post, entitled "Immigration, Innovation, Stability and Confidence", that:

Innovation is the key to long-term economic sustenance. Innovation is powered by bright minds, who working for themselves or for companies, come up with life changing products, which are then marketed around the world. Therefore, the country that has the greatest control of economic and trade matters will be the one that can attract the best work talent in the world. 

The STEM Jobs Act is an effort  to achieve this goal.  It is a move to attract the best work talent in the world and to ensure that innovation continues to propel domestic job creation. 

Holders of STEM degrees are not the only ones that would benefit from the bill.  The STEM Jobs Act  would also revive the V visa program, which was first implemented under the Legal Immigration Family Equity ("LIFE") Act in 2000.  The V visa was created to allow spouses and minor children of lawful permanent residents to live in the United States in valid non-immigrant status and travel to and from the United States while they waited to obtain their permanent residence.   However, under strict requirements, the number of individuals who qualify for a V visa has drastically diminished over the years.  In order to qualify for a V visa under the LIFE Act, the individual must have been a beneficiary of a Petition for an Alien Relative filed on or before December 21, 2000 and have waited at least three years after the filing of the Petition.  Now, if approved, the STEM Jobs Act would relax the requirements of the V visa program to allow a spouse and minor children of a lawful permanent resident, whose Petition for an Alien Relative are pending for at least one year as of October 1, 2013, to apply.  This modification in the law would benefit countless number of individuals whose petitions were filed after the December 21, 2000 deadline set by the LIFE Act.   Doing so would alleviate the hardship associated with the long wait-times many have to currently endure in order to receive their permanent residence.  

Yet, despite its potential benefits to the U.S. economy and to individuals wishing to immigrate to the U.S., the STEM Jobs Act is not without controversy.  If enacted, the STEM Jobs Act would eliminate the Diversity Visa program, a lottery system administered by the U.S. government which grants 50,000 immigrant visas annually to individuals from countries with low rates of immigration to the United States.  The Diversity Visa program, established under the Immigration Act of 1990, has been heavily criticized in the past few years.  Many individuals interested in the Diversity Visa program have ended up the unfortunate victims of scams.  Although, there is no fee to apply for a Diversity Visa and no guarantee of approval, many companies charge exuberant fees and falsely promise the individuals that they will be granted.  

Finally, in the face of the so-called "financial cliff" and the need for Congress to focus its major energies to avoid it before the end of the year, it may be too late at this point for the STEM Jobs Act to be properly considered this year.   Yet, if not approved, parts of the STEM Jobs Act could possibly be used as building blocks for a more comprehensive immigration reform in the next year. 
   

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship   

       

Immigration, Innovation, Stability and Confidence

It is days after the presidential election, and the president has been re-elected. In the next few days and weeks, he will set out his agenda as to what he wishes to accomplish during his second term. One of those items should be immigration reform. The future economic prosperity of this country depends on whether we can reform the nation's immigration reform to reflect current and future realities.

The United States is in a race to determine which country will be the economic superpower of the next hundred years. This is very important since economic power often translates to military power, which leads to dominance over global affairs.  Right now, the United States and China are the front-runners in that race to economic dominance. The United States is winning, but China has good momentum. What hinders China is that its economy is based primarily on replication as opposed to innovation. China is currently the biggest manufacturer in the world. However, it manufactures products that can be found in other parts of the globe. Its comparative advantage lies in pricing. China's products are competitive in the world market based in their prices being generally lower than its competitors. Yet, China lags behind its competitors, such the U.S., Japan, South Korea and the E.U. in innovation. Innovation is the key to long-term economic sustenance. Innovation is powered by bright minds, who working for themselves or for companies, come up with life changing products, which are then marketed around the world. Therefore, the country that has the greatest control of economic and trade matters will be the one that can attract the best work talent in the world.

For more than a century, the United States has not had a problem attracting many of the world's best and brightest. It is a democracy that protects many basic human rights that are enshrined in the U.S. Constitution. It has some of the best universities in the world. And, it is a country where opportunity to succeed is available to all and not just a select few. It is an obvious magnet for foreigners from around the world. However, current U.S. immigration law no longer accommodates the innovation needs of our country.

One of the clearest examples of such deficiency is in the H-1B professional work visa program.  The H-1B program is the mechanism by which U.S. companies can petition to bring into the country highly qualified professionals to work in such occupations as computer programmers, engineers and physicians.   In 1999, the U.S. government had a yearly quota of 65,000 H-1B work visas.  The U.S. Gross Domestic Product ("GDP") for that year was $11 trillion.   The yearly quota of H-1B visas was then tripled to 195,000 for the next few years, until it returned to 65,000 visas in 2004.  Yet, the U.S. GDP for 2004 stood at $12.39 trillion, a 12.6% increase since 1999.  The H-1B visa program had not been allowed to continue to grow along with the U.S. economy.  Even in light of what many call the Great Recession, the U.S. economy continues to grow overall.  Yet, the H-1B program has not continued to develop to adapt to such growth.  In 2005, another 20,000 visas were added to the H-1B program, which were reserved for individuals with an advanced degree from a U.S. institution of high education.  However, this did little to mitigate the massive 67% drop in visas allocation the prior year. 

It is essential that the U.S. expand its H-1B program if it wishes to continue its economic dominance.  Let's use a hypothetical to illustrate the point. "Company W" is a U.S. medium sized company that employs about a thousand U.S. workers. Its R&D department is working on the "next big thing", a product that will revolutionize how we do things or how live our lives. Think of such products as the iPhone, Facebook or the electric lightbulb. With this product Company W will grow 20 times its current size and will create thousands of more jobs. Company W is halfway in its timetable to create a prototype of its  product, test it, make a final product and then finally market it. It is still many years away from finishing the process. However, the executives of Company W have become aware that there are three foreign students at one of America's top universities, "X", "Y" and "Z", who on their own are working on developing a similar product. However, since their current immigration status is expiring X, Y and Z must soon return to their respective countries. Company W knows that with the help of X, Y, and Z, it can cut its timetable for its product by half, thereby mass-producing and marketing it years ahead of schedule. However, if the executives of Company W came to consult with us about the possibility of petitioning X, Y and Z for H-1B work visas, our answer would be that it is currently not possible. The quota of H-1B visas has been exhausted for the current fiscal year. Therefore, Company W could only employ X, Y and Z in H-1B status in the United States beginnning October 1, 2013. Of course, depending on the facts, there could also be other means of employing X, Y, and Z. However, without other facts, H-1B would be the only viable option.    October 1, 2013 is too long to wait for Company W. To do so, would be to lose one year in their path to develop their big product. Furthermore, Company W would run the risk that some foreign company in China or India would hire X, Y and Z and develop the product before Company W can, thereby making years of R&D obsolete and wasting millions of dollars invested. Such a decision, could bankrupt the company. In order to avoid this, Company W might decide to relocate its operation to another country thereby laying off nearly all of their thousand U.S. workers and extinguishing the future possibility of hiring thousands of U.S. workers.

The case of Company W happens in real life. In 2007, Microsoft opened an office in Vancouver, Canada because it was unable to petition in the United States the necessary amount of foreign programmers for its projects. The current state of U.S. immigration law is forcing companies to consider outsourcing in order to remain competitive in the world market.  This, in turn, leads to massive layoffs in the United States.   Without comprehensive immigration reform, the layoffs will continue, further affecting the U.S. economy and risking the possibility that the United States could cede its dominance in innovation to a country like China.   

The U.S. federal government must get serious about immigration reform.  The Obama Administration implemented Deferred Action for Childhood Arrivals (DACA) several months ago, which is aimed at providing temporary relief to a little over one million undocumented immigrants.  However, DACA is not immigration reform.  As was stated in the September 5, 2012 post on this blog, entitled "The Future of Immigration Reform":

Immigration reform would strengthen our nation's economy and put it in a better position to compete globally.  DACA does neither. While DACA provides protection from the fear of being removed from the country and in most cases can lead to work authorization, it does little to change a person's life. DACA, itself, does not lead to permanent residence. It is simply a temporary measure that provides a benefit that can disappear at any time. A person cannot plan his future based on DACA's instability. Likewise, DACA does little to attract and retain foreign talent.  

The Obama Administration must look beyond DACA in its second term in order the reform the immigration system in the United States.  However, the Obama Administration is unable to do so on its own.  It needs the cooperation of the U.S. Congress. 

There are several things that the Obama Administration and the U.S. Congress can do to fix our immigration system.  First, replace DACA with a permanent system that provides stability for those that would apply for it.  One option is the DREAM Act.  The Obama Administration and Congress last pushed for the approval of the DREAM Act during a lameduck seesion two years ago when other more pressing issues were on the agenda.  Congress is now about to begin another lameduck session where it will tackle the so-called "fiscal cliff", a set of draconian measures set to go into effect next year that has the high probability of crippling the U.S. economy.  This is not the time to present any major immigration legislation, such as the DREAM Act.  A more optimal moment would be early next year when Congress will begin a brand-new session. 

Another fix to the immigration system would be to increase the quota of H-1B professional work visas so as to reflect the needs of U.S. companies, large and small.  This will allow for innovation to continue to grow in the U.S., which in turn will lead to greater job creation domestically. 

The U.S. government should also shorten the wait-times for persons who wish to immigrate to the United States.  Currently, some of these cases are taking more the twenty years to process.   The long delays cause confidence in the system to erode, thus contributing to the undocumented immigrant phenomenon.  There is currently a bill in Congress, entitled the Fairness for High-Skilled Immigrants Act (H.R. 3012) that if approved would, in fact, shorten the wait time for many employment-based and family-based immigration cases.  It is doubtful that the bill could be approved before the end of the year.  However, Congress has the option to reintroduce the bill and enact it next year. 

If President Obama and congressional leaders are serious about wanting to ensure the U.S. economy remains dominant in the decades to come, they should tackle comprehensive immigration reform in the next two years.

The above information is provided for information purposes. It should not be construed as legal advice or the formation of an attorney/client relationship