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Comprehensive Immigration Reform – Another False Start?


Immigration reform has become an extremely divisive national issue that is dominating the airways, cable news, the internet and is being hotly debated in the hallways of Congress.

Immigration reform arrived on the national stage in 2006 when the Senate Judiciary Committee under the leadership of Senator Arlen Specter held open meetings on immigration reform in which all sides were given the opportunity to express their views. Working within the framework of the existing immigration system, which everyone agreed was broken, the Senate Judiciary Committee crafted a piece of legislation, Senate Bill 2611, that provided a three-tier system for undocumented workers to earn a path to legal permanent residence; created a temporary worker program for low-skilled workers, increased the number of nonimmigrant visas for unskilled, semi-skilled and highly skilled temporary workers to better meet this country’s needs for such workers. In addition, this bill increased the number of family-based immigrant visas and employment-based immigrant visas in order to eliminate the large backlogs that had developed and to meet the anticipated needs of U.S. businesses in the science- and technology-related fields. At the same time, the bill contained provisions to enhance border security, to toughen the enforcement of the immigration laws and to impose on employers a more effective employee verification system. After full debate, S.2611 was passed by the Senate. However, the House of Representatives took a different path choosing to pass a bill that dealt only with securing the borders and imposing dramatically tougher enforcement provisions. When the House leadership refused to meet in Conference with the Senate leadership to fashion a compromise bill, immigration reform in the 109th Congress was dealt a death blow.

The 2006 Congressional elections put the Democratic Party in control of both the House and the Senate, and the new leadership of the 110th Congress made immigration reform a priority. However, when the new Congress convened in January of this year, the Senate leadership decided to proceed to craft a new immigration bill behind closed doors, without the benefit of input that comes from holding public hearings. Thus, individuals, groups and organizations representing all sides of the national immigration debate were not given an opportunity to make their views known. When the framework of the proposed new immigration legislation was finally revealed to the public, it provoked a firestorm of criticism from both the pro-immigrant and anti-immigrant forces.

The national debate, if one can call it that, has been focused mainly on the proposed creation of the “Z” nonimmigrant visa category applicable to the over 12 million undocumented aliens believed to be present in the country; it would accord those who qualify, among other things, work authorization, travel permission, eligibility to extend their stay and a pathway to earn legal permanent residence. Also, hotly debated is the bill’s creation of a Y-1 guest worker program designed to enable unskilled and semi-skilled foreign nationals to enter the United States temporarily to work in semi-skilled and unskilled jobs for which there are an inadequate supply of U.S. workers.

Lost in the avalanche of sound-bites and counter sound-bites is the proposed replacement of the existing family-based and employment-based immigration systems with a merit-based evaluation system for immigrants. This fundamental change to our immigration laws has never been vetted with those who will be directly impacted by this new immigrant selection system. On the employment-based side, our country’s science- and technology-driven businesses must be able to recruit and retain the highly talented personnel they need to remain competitive in the global marketplace. Unfortunately, the current pool of native-born talent in the fields of science, technology, engineering and mathematics is insufficient to meet the present and future needs of these businesses. Accordingly, it is critically important to such businesses that they have access to the global pool of highly-talented foreign nationals—many of whom have received their graduate education in the United States.

Despite this obvious need, the Senators who developed the bill proposed to put in place a merit-based point system that provides no means by which such employers can be assured that “the best and brightest” they need will be selected under this new system. This system simply awards points for types of employment (employment in specialty occupations, higher demand occupations and in science, technology, engineering and mathematics), for years of employment and for level of education attained. It provides no mechanisms for taking into account an alien’s level of ability, expertise or quality of performance. No points are awarded if you are an alien of extraordinary ability, an outstanding researcher or professor or are engaged in work that is in the national interest. Thus, for example, a foreign national with a Ph.D. in microbiology playing a lead role in groundbreaking cancer research will receive the same number of points as a foreign national with a Ph.D. in engineering working on the design of an improved can opener.

The proposed point system falls short in another important respect: it provides no clear path to permanent residence for multinational managers and/or executives of companies with global operations. Moreover, this system contains no labor market test to match fields of education and experience with the actual needs of the marketplace or to protect native-born workers. Putting in place a system that selects those who will be permitted to remain in the United States indefinitely without taking into account their ability and expertise, and the importance of the contributions they can and are making will put U.S. companies at a distinct disadvantage in the battle to attract and retain “the best and the brightest.”

Also proposed without any input from the U.S. companies that have need of low-skilled workers is the “Y” guest worker program that permits foreign workers to come for a period of two years and then requires them to leave the United States for a period of one year before they are eligible to re-enter the United States to work for another two-year period and then requires them again to depart for another year outside the United States before they can return for their final two-year period of employment in the United States. This 2-1-2-1-2 temporary guest worker program leaves U.S. employers with no flexibility to retain workers that have become important to the success of the employer’s business; rather, it imposes on U.S. employers a constantly churning workforce–something that no employer seeks.

The recent defeat in the Senate of the motion to end debate on the immigration reform bill and the decision of the Senate Majority Leader to end further consideration of this bill for the present time casts considerable doubt on its future. But, even if the Senate should pass an immigration bill that contains some or all of the flaws discussed above, and many others that are not, it is not the end of the legislative process. The various people and organizations impacted by the proposed Senate bill will have an opportunity to bring to the attention of their respective Representatives in the House, their views on all the many important issues encompassed in meaningful, comprehensive immigration reform. Unlike the Senate, the House leadership has stated that the promulgation of a bill will follow public hearings where the views of all concerned will have a chance to be vetted. Thus, both those who support and those who oppose what the Senate proposes to do will have an opportunity to make their views known so that they will at least be considered in connection with whatever immigration reform bill the House may pass. Should the Senate and the House each pass immigration reform bills, which is becoming less likely as time goes by, those bills will almost certainly be different in many significant respects. These differences will have to be worked out in the House and Senate Conference and, if a compromise bill emerges, it must then be approved by both Houses of Congress and signed into law by the President. Simply put, if the Senate actually passes an immigration reform bill, there is still a lot of opportunity for all concerned to press Congress to incorporate their various points of view in a final bill. So, speak up and make your views known to your Representatives and Senators.

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