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U.S. Immigration Reform Should Focus on Improving the Employment-Based Visa System, Cato Immigration Reform Bulletin No. 10

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IMMIGRATION JANUARY 2011 REFORM BULLETIN U.S. Immigration Reform Should Focus on Improving the Employment-Based Visa System BY STUART ANDERSON, an adjunct scholar at the Cato Institute and executive director, National Foundation for American Policy. E fforts to reform immigration are, at a minimum, delayed because of lack of support in the U.S. Congress. Attempts to impose more restrictive measures are expected in the coming year. Whether new legislation is pro-immigration or anti-immigratio
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  1000 MASSACHUSETTS AVE, NW  l  WASHINGTON, DC 20001 l  WWW.CATO.ORG IMMIGRATION REFORMBULLETIN fforts to reform immigration are, at a minimum,delayed because of lack of support in the U.S.Congress. Attempts to impose more restrictivemeasures are expected in the coming year. Whethernew legislation is pro-immigration or anti-immigra-tion, it is important to understand the rules, quotas, and reality of the current employment-based immigrationsystem if we are to avoid reforms that domore harm than good. TEMPORARY VS. PERMANENT The first important distinction to under-stand in our immigration system is the dif-ference between (1) receiving temporary sta-tus (see Table 1) and (2) gaining lawful per-manent residence, sometimes known asreceiving one’s “green card” (see Table 2). An employee in temporary status or on a temporary visa (also known as a “nonimmi-grant” visa) can stay in the United States for a period of timebut is not entitled to remain permanently or become a U.S. cit-izen. In contrast, a worker who receives permanent residence (a green card) can remain in the United States for the rest of his orher life (barring long absences or certain criminal convictions)and can become eligible for U.S. citizenship. 1 WORKING IN AMERICA: THERE IS NO LINE FORLOWER-SKILLED WORKERS One of the most common accusations hurled against illegalimmigrants is the rhetorical question, “Why can’t they just waitin line?” The problem for lower-skilled workers is that no suchline exists. For example, if an employer were to ask, “How doesone obtain a legal visa for an employee to work as a maid fulltime at a hotel or as a waiter at a restaurant?” the short answerwould be, “There is no such visa for those jobs.”The closest available categories for low-skilled workers areH-2A and H-2B visas. Both are used for short-term seasonal jobs. H-2A visas are used for such jobs in agriculture. Whilethere is no numerical limit on H-2A visas—approximately 60,000 were issued in FY2009 2 —employers consider the processbureaucratic, not timely for their employ-ment needs, and prone to litigation. Thisis a major reason the majority of agricul-tural seasonal workers are believed to be inthe country illegally. 3 Farm worker advo-cates would like to make the H-2A ruleseven tighter, however. Both growers andfarm worker advocates have favored com-promise legislation called AgJobs, whichwould streamline certain rules for growersand provide legal status for illegal immigrants now workingin agriculture.H-2B visas can be used for temporary jobs, such as pickingcrabs over a 3- to 6-month period, not for permanent posi-tions. The annual quota is 66,000 a year, which has regularly been exhausted by employers, although with the economicslowdown only 44,847 H-2B visas were issued in FY 2009. 4 Immigration attorneys say recent regulatory changes havemade the H-2B process more cumbersome and less pre-dictable for employers. Overall, the core problem is that the visas cover too few of the types of jobs most employers needfilled, which creates a mismatch between the law and thelabor market. BY STUART ANDERSON, an adjunct scholar at the Cato Institute and executive director, National Foundation for American Policy. U.S. Immigration ReformShould Focus on Improving theEmployment-Based Visa System The signifi-cant wait timefor green cardsis one reasonH-1B tempo-rary visas areso important. “         “ JANUARY 2011 E  Individuals on H-2A and H-2B visas can-not be sponsored for green cards. Even if they could, the annual quota for employer-spon-sored green cards is limited to only 10,000 so-called “other workers” (5,000, in practice, dueto a congressional offset in green cards). 5 Inshort, neither temporary visas nor green-cardsponsorship present realistic paths to worklegally in the United States in jobs at thelower end of the skill spectrum. WORKING IN AMERICA: OURIMPERFECT SYSTEM FOR HIGHLYSKILLED PROFESSIONALS Foreign nationals seeking to work in areassuch as computer science, finance, and engi-neering have it better than those in lower-skilled jobs. Still, even the visas in these cate-gories tend to be oversubscribed and bur-dened by long delays and frequent demandsfor additional documentation from govern- STUART ANDERSON,  Editor  IMMIGRATION REFORMBULLETIN  provides timely informa-tion, insight, and analysis about effortsto expand opportunities for legal immi- gration to the United States. The bulletin seeks to highlight immigration policiesthat promote economic growth, national  security, and individual liberty. IMMIGRATION REFORMBULLETIN For more informationon immigration policy,visit www.cato.org/immigration. Visa CategoryDescriptionAnnual Quota H-1B For professionals in jobsrequiring the equivalent of aB.A. or higher; separate require-ments for fashion models.Typical visa for internationalstudents who work long-termin the U.S. after graduation.65,000 plus exemption of 20,000 for advanced degreeholders from U.S. universities;there is also an exemption forthose hired by universities andnonprofit and governmentresearch institutes. L-1 Intracompany transferee visafor managers, executives, andthose with specialized knowledgewho have worked abroad for anemployer for at least one year.no quota H-2A For seasonal agricultural workers.no quota H-2B For seasonal nonagriculturalworkers.66,000 O-1 For persons of extraordinary ability.no quota P-1 Primarily for professional athletesand those in the entertainmentindustry.no quota R For religious workers.no quota  TN For professionals from Mexicoand Canada qualified underNAFTA.no quota  TABLE 1KEY TEMPORARY VISA CATEGORIES FOR EMPLOYMENT  Source: U.S. Citizenship and Immigration Services, U.S. Department of State.  ment examiners.To remain in the United States on a perma-nent basis, a skilled professional generally must receive lawful permanent residence.Temporary visas such as H-1B or L-1 entitle anindividual to stay for only limited periods of time. Under U.S. law, no more than 140,000employment-based green cards are issued in a fiscal year. Wait times for skilled immigrantsrange from 6 to 12 years (or more) in most cat-egories. 6 It is the low quota of 140,000, ratherthan bureaucratic delays, that lead to longwaits for skilled immigrants. 7 That quota includes not just the professional being spon-sored but also dependent family members(spouses and minor children). Another factor IMMIGRATION REFORMBULLETIN CategoryDescriptionPersons Obtaining Permanent ResidentStatus in FY 2009 First Preference(EB-1 priority workers) Aliens with extraordinary ability,outstanding professors andresearchers, and certain multina-tional executives and managers.40,924 Second Preference(EB-2 workers withadvanced degrees orexceptional ability) Aliens who are members of theprofessions holding advanceddegrees or their equivalent andaliens who because of their excep-tional ability in the sciences, arts,or business will substantially ben-efit the national economy,cultural, or educational interestsor welfare of the United States.45,552  Third Preference(EB-3 professionals,skilled workers, andother workers) Aliens with at least two years of experience as skilled workers; pro-fessionals with a baccalaureatedegree; and others with less thantwo years of experience, such asan unskilled worker who can per-form labor for which qualifiedworkers are not available in theUnited States.40,398 Fourth Preference (EB-4special immigrants) Workers such as those in areligious occupation or vocation.13,472 Fifth Preference (EB-5employment creation) Immigrant investors who create acertain minimum number of jobs.3,688  TABLE 2EMPLOYER-SPONSORED IMMIGRANT VISA (GREEN CARD) CATEGORIES Source: U.S. Citizenship and Immigration Services; 2009 Yearbook of Immigration Statistics  , Office ofImmigration Statistics, Department of Homeland Security, Table 6.  influencing the availability of green cards isthe per country limit on employment-basedimmigrants, which affects individuals fromIndia and China the most. 8 The significant wait time for green cards isone reason H-1B temporary visas are so impor-tant, since without such visas the vast majority of highly skilled foreign nationals, includinginternational students, could never work orstart a career in the United States. From FY1997 to FY 2010, employers exhausted the sup-ply of H-1B visas every year except when theceiling was temporarily increased for the years2001 to 2003. When Congress revised the H-1category in 1990 and designated it H-1B, law-makers established an annual limit of 65,000.Since then, Congress has approved exemptionsfrom the annual cap for those hired by univer-sities and nonprofit research institutes and20,000 individuals who received a master’sdegree or higher from a U.S. university. Whenthe economy is sluggish, such as in FY 2010and FY 2011, the visa supply is used up moreslowly, demonstrating that hiring is based onmarket conditions.Efforts to cripple the use of H-1B visasthrough additional bureaucratic require-ments will succeed mostly in preventing for-eign nationals from working in America,which is the general goal of those proposingsuch measures. Yet like most government reg-ulatory actions, such new restrictions willcarry unintended consequences—as morehighly skilled foreign nationals are pushedabroad, more innovation and work in impor-tant fields will take place in other countries,limiting new opportunities for U.S. workersand lessening growth in the United States forboth large and small companies in technolo-gy, finance, and other sectors.Employers must pay H-1B visa holders thehigher of the prevailing or actual wage paid toother similarly employed Americans. Jobsgenerally must require a B.A. or its equivalentthrough work experience. 9 Contrary to popu-lar belief, H-1B visa holders are free to change jobs, needing only a new employer to petitionfor them. Changing jobs is actually commonamong H-1B visa holders. A balanced use of whistleblower protections already in the lawcan help protect H-1B visa holders who feelunable to change employers. Liberalizinggreen card quotas would help prevent a situa-tion where an H-1B professional feels that heor she must stay at a current job while waitingfor approval of a green card.Today, in a connected global economy, L-1 visas have become essential to companies as a means of moving—and integrating—employ-ees from around the world. L-1 visas allow U.S.companies to transfer executives, managers,and personnel with specialized knowledgefrom their overseas operations into the UnitedStates. To qualify, L-1 beneficiaries must haveworked abroad for the employer for at least onecontinuous year (within a three-year period)prior to a petition being filed. This would pre- vent, for example, someone hired overseasfrom being sent to work immediately in theUnited States. Also, based on U.S. Citizenshipand Immigration Services (USCIS) regula-tions, an executive or manager is limited toseven years, while an individual with special-ized knowledge can stay for five years. OTHER CATEGORIES  An O-1 visa is for persons of extraordinary ability who can demonstrate national or inter-national acclaim. Generally, such individualswould be older and more accomplished.USCIS adopts a strict standard—in FY 2009only 9,368 O-1 visas were issued, includingthose for individuals in fields as diverse as film,the culinary arts, and science. A P-1 visa is used for professional athletesand people in the entertainment industry (23,920 visas in FY 2009). An R is used for reli-gious workers who come to work on a tempo-rary visa (23,920 visas in FY 2009). TN visas arefor professional workers from Mexico andCanada who qualify under the North American Free Trade Agreement (2,771 visas inFY 2009). Foreign journalists use an I visa (15,219 in FY 2009). 10 CONCLUSION Efforts to reform employment-based immi-gration should be measured against three crite-ria. First, has Congress increased the opportu-nity for lower-skilled foreign workers to enterthe country on legal visas, which would reduceillegal immigration? Second, have lawmakers IMMIGRATION REFORMBULLETIN
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