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Employer Law Report

“Now is the Time” to Move on Immigration, But the Devil is in the Details

Posted in Immigration

It has been two weeks since a bipartisan Senate Committee of eight senators released their statement of principles for Comprehensive Immigration Reform, followed two days later by President Obama during a speech in Las Vegas. The President told the nation that the political stars have aligned and "now is the time" for serious consideration of immigration reform. Together, these statements set the stage for the debate to come.

These two statements provide a hopeful sign that the intractable problems have been reconsidered in light of the new political reality and good old-fashioned compromises have been defined. There are still many difficult decisions ahead. The devil, as they say, is in the details, and it is those details beyond the basic positional statements that will be necessary to define.

When it comes to immigration reform, the critical decisions boil down to numbers. The problem with the last comprehensive reform legislation in 1986 was that the law made no attempt to adjust the limits to changing economic conditions – immigration limits haven’t changed since they were arbitrarily set in 1990.

Immigration policy must be based upon both family reunification and the labor demands and employment opportunities, both core national values. But the law was not built to index or adjust to changing economic conditions. In fact, the Immigration Act of 1990, still in place today, permits the annual admission of 226,000 family-based immigrants, based on various family relationships; and 140,000 immigrants conditioned on the needs of U.S. employers, based on different skill sets.

Not surprisingly, the country and labor market have changed in the past 23 years. Now more than ever, there is growing demand in several categories of our nation’s workforce, particularly for sophisticated technology skills. But with a static supply of visas, there is a severely growing backlog in several defined categories.

It is this crucial area in which the Senate statement of principles will be rigorously tested. The Senators’ statement provides a pathway for the 11 million undocumented immigrants to apply for legal status, with appropriate qualifications (background checks, payment of a fine and back taxes), but the statement also stressed that these immigrants will be required to go to the "back of the line." While this sounds fair, the reality is the problem of mass undocumented immigration was caused by a lack of a line. Bureaucracy hasn’t slowed the process—the impasse is the limited number of visas permitted each year.

Take for example one category of family-based immigrants, married adult children of U.S. citizens. The law permits 23,400 married adult children to immigrate each year. Each country is limited to 7% of the total. So for any one country, only 1,638 adult children can immigrate each year. If there are more than 1,638 from any one country, they must "get in line" and wait their turn. Today, the State Department reports that 183,113 Mexican adult, married children are in line for an immigrant visa. Because the law permits only 1,638 each year, the anticipated wait is 112 years.
The problem is not limited to family based immigrants. The employment-based categories also have a 7% per country limitation. Right now, there are approximately 66,650 applicants from India waiting for a visa in the third employment preference. The limit is 2,803 per year, which means that the wait for the last one in line is approximately 23 years. This category includes professionals with a bachelor’s degree, many of whom graduated from U.S. universities with degrees in science, technology, engineering and math (STEM)—a priority qualification for President Obama.

While these two examples are among the worst categories, they offer a glimpse into the systemic problem. The State Department reports that there are 4.3 million family-based applicants and 4.4 million employment-based applicants waiting for a visa. That is almost nine million people in line. If we are to have a meaningful path to citizenship, "the line" has to be meaningfully addressed. This is where rubber meets the road.

This is also why numbers matter most. If the current undocumented immigrants must get in line behind these nine million individuals, some who have already been waiting over 20 years, we won’t have solved the problem.

The question then becomes what number is appropriate. Being certain that a "line" that takes 112 years, or even 23 years, is far too long still doesn’t answer the question. While the bipartisan Senate statement alluded to finding a number that works, this aspect of the policy is the critical linchpin. We must permit immigration at levels that facilitate economic growth and serves our humanitarian and social values by encouraging family reunification at appropriate levels. Creating a mechanism to achieve that goal will determine the success or failure of immigration reform.

If the last 23 years have taught us anything, Congress and the whims of sound-bite politicians is not the proper forum to determine these specific decisions going forward—it must be the federal government policy makers taking their cues from market forces. The law should determine future flows based upon objective economic data and market demand. The ultimate number of immigrants, and the process of determining of which immigrants we need to welcome, must enhance our economic growth, reflect our national values and build upon our history and recognition that America is a strong nation—because we are, and continue to be, a nation of immigrants.
 

Rob Cohen