Nation of Immigrators - A public policy blog on America’s dysfunctional immigration system

One of the most challenging elements of comprehensive immigration reform (CIR) has long been the need for consensus on the legal, temporary entry of essential foreign workers. This plan for "future flows" of guest workers is critical if we are to reduce the incentive of unauthorized migrants to crash the border.

The lack of agreement between business and labor over guest-worker admissions, a contributing factor in the collapse of the last CIR effort in 2007, may be, however, a thing of the past.  

Last week, The AFL-CIO and the U.S. Chamber of Commerce issued a "Joint Statement of Shared Principles," offering seeming harmony on future flows in these words:

[There] are instances – even during tough economic times – when employers are not able to fill job openings with American workers. . . . [It] is important that our laws permit businesses to hire foreign workers without having to go through a cumbersome and inefficient process. Our challenge is to create a mechanism that responds to the needs of business in a market-driven way, while also fully protecting the wages and working conditions of U.S. and immigrant workers. Among other things, this requires a new kind of worker visa program that does not keep all workers in a permanent temporary status, provides labor mobility in a way that still gives American workers a first shot at available jobs, and that automatically adjusts as the American economy expands and contracts. . . 

[We] need to fix the system so that it is much more transparent, which requires that we build a base of knowledge using real-world data about labor markets and demographics. The power of today’s technology enables us to use that knowledge to craft a workable demand-driven process fed by data that will inform how America addresses future labor shortages. We recognize that there is no simple solution to this issue. We agree that a professional bureau in a federal executive agency, with political independence analogous to the Bureau of Labor Statistics [BLS], should be established to inform Congress and the public about these issues.

The prospect of an independent BLS-type bureau becoming involved is intriguing since the BLS's current mission already seems to align nicely with the task of gathering relevant job-shortage data:

The Bureau of Labor Statistics of the U.S. Department of Labor [DOL] is the principal Federal agency responsible for measuring labor market activity . . . . As an independent statistical agency, BLS serves its diverse user communities by providing products and services that are objective, timely, accurate, and relevant.

The problems with the concept, however, are many.

For one, we tried this before and it went nowhere.  In 1990 Congress commissioned DOL to set up a three-year experiment requiring a "determination . . . of labor shortages or surpluses in up to 10 defined occupational classifications in the United States . . ." [See the Immigration Act of 1990 § 122(a).]  

When the Labor Department proposed its initial list, however, all hell broke out.  Labor and business disagreed vociferously over whether the right shortage or surplus occupations had been identified.  Unable to take the heat, DOL quickly retreated and, since that time, has maintained that it lacks the data to determine shortage occupations:

Instead, as I've noted in previous blog posts and explained to National Public Radio's Martin Kaske on Morning Edition this week, employers must carry the burden of recruitment under an artificial labor certification program (DOL's mandated testing procedure for employers to prove that a particular job cannot be filled by qualified and available American workers) that is an "empty ritual":

PAPARELLI: So U.S. workers put on their suits and ties and their white shirts and they shine their shoes, and they go to the interview thinking that they have the opportunity that they've been longing for, only to be rejected.

KASTE: Paparelli calls it an empty ritual required by the Department of Labor, as it compels employers to prove a negative, to prove they can't find qualified workers. The result, he says, is pointless job interviews.

Given that DOL apparently lacks the technical data and the political courage to declare shortage occupations, the solution lies in taking the declaration out of frail human hands, as Louis D. ("Don") Crocetti, a former senior immigration official now in private consulting, suggested to me in a recent email:

[Any] Guest-Worker Program (GWP) should be driven by the labor needs of this country, not emotion, politics, or other subjectivity. These needs must be data-driven. Prior to implementing any GWP, we should develop a much better mechanism in which to determine occupational shortages. The current system is primarily paper-based, thus inefficient, ineffective, and fraud-ridden.

Thought should be given to developing a national jobs or labor data system that is engaged by all states, working collaboratively with the U.S. DOL. States should be required to enter specific labor data and employers should be required to use this system to post and recruit workers, and provide other data needed to determine the labor needs of this country in a progressive, real-time manner. This system could also be engaged to determine and administer permanent employment-based (immigrant) visas, as well as manage the issuance and use of visa numbers.

I agree with Don Crocetti on the importance of removing emotion, politics and subjectivity from the current process for declaring occupational shortages and on the need for real-time, data-driven reports of jobs that go unfilled.  I offer, however, some friendly amendments.  

U.S. employers should not be put to the burden of recruiting for candidates in shortage-designated jobs.  A simple print-out of the screen shot from the government's forthcoming database showing the lack of workers in the occupational classification should be all that's needed for U.S. Citizenship and Immigration Services to approve an employment-based immigrant visa petition.  Thus, DOL's current PERM labor certification procedure could be eliminated.

Moreover, there should be no change in current H-1B requirements  relieving all but H-1B dependent employers and willful violators from the duty to recruit for these nonimmigrant visas.  As I explained to NPR's Martin Kaste:

These [H-1B] hires have to happen very quickly. The job imperatives that the customers impose are so time-sensitive, that [advance recruitment simply] can't work.

So let us now face the question posed in the title of this post:  

Will the new labor-business accord produce an immigration death panel?  The answer is "NO"  -- as long as political influence and hackery is kept out of the equation and algorithms digesting state- and employer-fed job openings and hiring data are allowed to produce up-to-the-minute reports of shortage occupations.  

But an economy-killing immigration death panel it will assuredly be -- a veritable Dr. Caligari's cabinet -- if instead a "bureau in a federal executive agency . . . [is] established [merely] to inform Congress and the public about these issues."

Youthful fans of Saturday Night Live may be forgiven for assuming, however mistakenly, that SNL invented satirical television comedy. The patent for this invention probably ought to go instead to other earlier contenders, Jack Paar, Sid Caesar, Imogene Coco or Steve Allen.  While I love these past and present paragons of humor, I'll never forget the laughs my Dad and I shared watching an earlier NBC show, a precursor to SNL, the short-lived political revue, That Was the Week That Was.  

TW3, as it was known, an émigré from the BBC, hosted in the U.K. and the U.S. by David Frost, ran here only for two seasons, from 1964 to 1965 -- but a hilarious two years they were. The format for the show was simple:  Take the news of the past week and turn it into song-and-dance sketches reeking with ridicule, irony, satire and scorn.  With ballads by piano-thumping political troubadour, Tom Lehrer, TW3 featured timeless classics like "National Brotherhood Week" (enjoy the audio here, and the lyrics here).

That Was the Week That Was came reverberatingly to mind with the news of the last seven days.

The week began with the airing of a surreptitiously recorded video of presidential candidate Mitt Romney wishing out loud to an audience of wealthy contributors that, if his dad, George, the late Michigan governor, had not been born in Mexico of an American mother and father but instead of "Mexican parents, I'd have a better shot at winning this. I mean, I say that jokingly, but it would be helpful to be Latino." As the week proceeded, his campaign staff had to walk back Romney's claim that he'd never met anti-immigrant lawyer and father of AZ's SB1070, Kris Kobach (according to CNN, "Romney and Kobach have, in fact, met before at campaign events — but not in formal policy meetings”). The week ended with the resolution of a controversy stirred up by Stephen Colbert suggesting that the candidate had applied tanning spray before his appearance on Univision as a pander to its Latino viewers. The truth is that Romney's Ricardo Montalban look, as Univision has confirmed, came at the heavy hand of the network's make-up artist who daubed on too much "MAC Studio Fix powder and foundation." 

President Obama likewise had his turn on the Univision hot seat, admitting (duh!) that his biggest failure was failing to pass comprehensive immigration reform, and splitting hairs with the moderators over whether he had promised or not promised to do so (or merely try) in his first year in office or first term.

Another laughable moment came when the White House issued a statement and the State Department a video claiming how much easier than perceived it now is to visit America. Yes, they are right that more consular resources, enhanced customer service training and better queuing at ports of entry, among other measures, will improve the inbound traveler's experience.  But nothing will fundamentally create better first impressions until minimal standards of fairness are established for consular visa interviews and CBP interrogations. Yet another Administration official, Homeland Security Secretary Janet Napolitano, surprised many with the risible observation that immigration hasn't been much of “a linchpin, red hot issue" in the presidential campaign.  Tell that to the 10 million Hispanic-Americans whose votes may be suppressed this year.

Congress too contributed to the week's fatuous merriment with the "BRAIN-STEM" follies.  Senator Schumer proposed a new BRAINS act which would allow a smart foreigner with family members to enter every time we deport an equivalent number of permanent residents. In the other chamber, House partisans bickered and failed to pass a green-cards-for-STEM-students bill that failed -- as Bill Clinton might say -- over "arithmetic."  Republicans wanted to eliminate 55,000 Diversity-Lottery visas to provide the immigrant-visa currency for the additional Science, Technology, Engineering and Math graduates from U.S. universities who would receive green cards, while the Democrats wanted to add, not subtract, green-card quota numbers for additional STEM graduates.

On the international front, an Italian court affirmed criminal convictions in absentia of 22 Americans (allegedly CIA operatives) by tossing a creamy tiramisu (a confection translated as "lift me up") at a Bush-era immigration policy known as rendition -- the act of removing (airlifting?) individuals from one country and forcibly immigrating them to another where they are likely to be tortured.  In other judicial news, a federal judge in Arizona lifted an injunction on the surviving piece of SB1070, known as the "show me your papers" provision, which many fear will play out as a "driving or walking while Hispanic" basis for arrest and removal.

The week's levity aside, some important and serious things happened as well:

• 600 city and county government agencies in Georgia reportedly face penalties for failing to comply with the state's mandatory E-Verify enrollment law, an analogue to the Arizona statute upheld last term by the Supreme Court.
• Reports like this one, entitled "Time to reject false choices and fears about immigration: Basic freedom of movement across borders is fundamental to human dignity," added to the body of work showing that economic prosperity and human rights can be married successfully by revising outdated immigration laws.
• The pejorative, "illegal immigrant," continued to be lambasted by such courageous DREAMers as Jose Antonio Vargas and others as a grammatically and legally incorrect term meant to demean and demonize a population.
• Rinku Sen of Colorlines wrote a must-read piece entitled, "Immigrants Are Losing the Policy Fight. But That’s Beside the Point," emphasizing the importance of real-world stories on immigrants and immigration as the best way to win over American hearts and minds.
• R. Blake Chisam issued a report through the National Foundation for American Policy, "DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals" -- ironically, the very same H-1B workers entitled to DOL's statutorily mandated labor protections.
• Both presidential candidates pledged, if elected, to fight for comprehensive immigration reform.

Thinking back to TW3, I am reminded that the polarization and class warfare we see today likewise existed in '64 and '65, as acerbic songster Tom Lehrer croons in his timeless ditty, "National Brotherhood Week":

Oh, the poor folks hate the rich folks,

And the rich folks hate the poor folks.

All of my folks hate all of your folks,

It's American as apple pie.  

Are we a trustworthy nation?  The world waits to see if the American government becomes a deadbeat on August 2, when the debt ceiling is hit.  Will the country break faith with its creditors?  Will it stiff Social Security recipients, the ill and disabled, fallen warriors and others whose lives or fortunes depend on Uncle Sam's unflagging reliability.

The New York Times reported recently on a set of already broken American oaths. Many would-be "Special Immigrants" in Iraq who've worked for the U.S., are stranded there, facing death threats, living in stairwells, checking for car bombs underneath their vehicles, losing hope that their oft-promised yet long-delayed U.S. visas will ever arrive -- green cards that Congress ordered to be fast-tracked -- all the time chastising themselves for their gullible belief in America's words.

A letter writer commenting on the Times story bewailed our "exceptional[ly]" roguish behavior: 

What have we become? Our word means nothing now. We break our word to Iraqi friends who helped us. Do we think that those whom we’ve left dangling in the wind will remain our friends? We want to break our word on debts we’ve already accrued.

Do we think that our creditors will continue to invest in us because we are “exceptional”? . . . I despair for a country that I see becoming . . . more removed from what I once thought were our high moral standards. And a country that does not keep its word.

As these despondent Iraqis have come to realize, institutional word-breaking is endemic within the U.S. immigration ecosystem. One small example tells a tale.

Consider the H-1B visa available to nonimmigrant workers in "specialty occupations" who possess at least a university sheepskin or its equivalent in the workaday world.  For those who prefer their learning via chart rather than text, click here; otherwise, read the following indented paragraphs:

This visa started life in 1952 as the H-1 for employees of "distinguished merit and ability" -- a term later interpreted to refer to degreed or degree-equivalent "professionals." In 1990, however, Congress rebranded the visa the H-1B and added an array of worker protections to be enforced by the Department of Labor (DOL), including a requirement that foreign citizens in H-1B status receive at least the going rate (the "prevailing wage") in the local area. The process was designed to be speedy.  It would be "attestation-driven" with penalties applied only later if DOL were to investigate a complaint and find that an employer had violated the worker-protection duties of the law.  The employer's attestation, in the form of promises that must be kept, is made under oath on a form known as a "Labor Condition Application," or LCA. 

The DOL is obliged to "certify" an LCA unless it is "incomplete" or "obviously inaccurate."  The employer then submits the certified LCA to an agency of Homeland Security, U.S. Citizenship and Immigration Services (USCIS), together with a work-visa petition. USCIS then determines if the job and the worker qualify as "specialty occupations," meaning that the job requires and the individual possesses that combination of theoretical and practical knowledge typically gained in a baccalaureate program or through equivalent work experience. Thus, the DOL protects H-1B workers, while USCIS confirms visa eligibility.  All was well with the world, or so we thought . . .

Because the prevailing wage is defined by geography (usually the wage considered prevalent in a particular metropolitan area), the DOL maintains listings of prevailing wages for locales around the country.  If an employer learns of an unforeseen business need to dispatch an H-1B worker to a worksite not listed in the LCA, the DOL requires the employer to file a new LCA and obtain DOL's certification.

USCIS's H-1B regulations, however, do not expressly require employers to submit a new or amended visa petition when the change merely involves a job relocation.  After all, there'd be no reason, in principle, why such a filing would be necessary, since the employee and the job itself would not have changed.  Both would still be the very same specialty occupations that USCIS had already screened and approved. 

To be sure, at one point in 1998, USCIS's predecessor, the Immigration and Naturalization Service (INS), had proposed a rule that an amended petition be filed for such job changes, but never took final action.  Instead, INS twice issued policy guidance, the Hogan and Aleinikoff memos, that each confirmed there is no need to report such changes unless the change invalidated the LCA.  The problem for INS and now USCIS, however, is that the DOL regulations do not prescribe any situations which invalidate an LCA.  Under DOL rules, an LCA may only be withdrawn by the employer or allowed to expire.

The view that a "geographic move" by an H-1B worker is not a material change (presumably because such a move does not by itself invalidate the associated LCA) was then confirmed by a senior USCIS official, Efren Hernandez III, Director of the agency's Business and Trade Branch, in 2003 correspondence to the American Council for International Personnel.

Now comes the institutional word-breaking.  Recently, USCIS has begun to rule in numerous individual cases that the employer's failure to amend the H-1B petition (something only the employer can do) and secure the agency's okay for a worker's change of job location means that the H-1B worker -- merely by following her employer's instructions to appear at a new worksite -- has violated nonimmigrant status.  Failing to maintain status is no small matter.  It is a violation of law that can lead to the worker's and her family's removal from the United States and banishment for at least five years.  It can also cause the employer to be charged with continuing to employ the worker while knowing that the right to work has been terminated -- a felony  -- unless the employer immediately fires the worker. 

The bitter irony here is that by relying on the USCIS to keep its word the guileless, relocated worker (the supposed "beneficiary" of H-1B labor protections) and the trusting employer have been placed into a cauldron of hot immigration water. Also ironic is the notion that serious thought is given to "Rewarding Employers Who Play by the Rules," as the Migration Policy Institute recommends, when the agency conferring the reward has systematically failed to publish intelligible rules of play.

How could this happen?  Four plausible theories come to mind:

1. Failure to publish a final rule.  Legacy INS and its successor, USCIS, must be greater believers in "The Secret" (visualize intention and it will manifest) than in the notice-and-comment prescripts of the Administrative Procedures Act.  Just because the agencies float an idea publicly does not make it binding law.
2. Ignorance of DOL regulations.  When Messrs. Hogan and Aleinikoff issued policy guidance, it seems no one bothered to study the DOL regulations.  Had they done so, they would have understood that LCAs can never be "invalidated." Hence, they would not have referred to the "invalidation" of the LCA, but would have at least expressly stated in policy guidance (or better yet in a final regulation) that an H-1B worker's change in work site from one metropolitan area to another requires the filing of an amended H-1B petition.
3. Writing a letter does not make the letter binding law. USCIS and INS know the rules of procedure and precedent.  They should not have allowed the release of informal, non-binding letters that can only serve to mislead stakeholders.
4. USCIS's creeping mission.  As armies of USCIS Fraud Detection and National Security ("FDNS") investigators and contractors performing "site visits" have appeared at business doorsteps nationwide, some learned that the H-1B worker whose file was to be audited had moved to another job site.  To an unschooled investigator (see # 2 above), this "suspicious" conduct looks like either fraud or a technical violation of the H-1B rules (even if the employer proffers an LCA covering the new worksite). 

None of these reasons justify indifference to the unpaid debts of promises unkept.  The poet, Robert Service, whose surname is what USCIS should be all about, said: "A promise made is a debt unpaid." USCIS should heed the poet's wisdom and put "Services" rightly back into its own name by promptly paying its debts to the stranded Iraqis endangered by American loyalty and by repairing the damage it has caused to relocated H-1B workers and their employers falsely accused of violating U.S. immigration law.

On February 18 and 19, the University of California (Irvine) hosted a symposium where many of U.S. immigration's Rock-Star professors came together to try and solve "Persistent Puzzles in Immigration Law."  The topics covered a wide expanse. A subject discussed that particularly interested me is Congress's often inexplicable delegation of regulatory authority among a surfeit of federal agencies that administer and enforce the immigration laws, each with its area of real (or presumed) expertise and overlapping responsibilities. 

One speaker mentioned her concern about the possible mis-use of E-Verify by some employers to screen current or would-be workers for employment eligibility, even though that kind of screening violates the terms of use under the memorandum of understanding with Homeland Security (DHS).  She proposed that perhaps Congress should authorize the Department of Labor (DOL) to investigate and punish this type of violation.  During the Q & A, I suggested that, even if the problem is as widespread as the speaker feared, the Department of Justice (DOJ) should do the policing, because, based on my experience, DOL must first improve its abysmal record of administering the immigration laws before Congress grants it any more power.

Regular readers of this blog would be forgiven for assuming, given my recent rants on labor certification (here and here), that the DOL's PERM program had come to my mind.  No, actually I was thinking of the H-1B program and a January 2011 Government Accountability Office report (GAO-11-26). Although the report contains a wealth of data, and is written from a glass-half-empty perspective, it actually shows that access to cheap foreign labor -- the usual slam against the category -- is not the real motivation for its use.  Rather, as the National Foundation for American Policy notes in its analysis of the GAO data, "hiring the best candidate for the job, whether U.S.-born or foreign-born, is the primary consideration for employers" who sponsor H-1B workers.

I will offer many critiques of the economy-harming H-1B program in future blog postings, and assail the GAO's flawed analysis and implied bias reflected in the title of its report ("H-1B VISA PROGRAM - Reforms Are Needed to Minimize the Risks and Costs of Current Program").  For now, in the au courant Washington spirit of reducing government expenditures and eliminating unnecessary regulations that burden business, I propose that Congress take the DOL out of the H-1B application process altogether, and that USCIS serve solely to approve or deny H-1B visa petitions and grants of nonimmigrant status.  

To gain a visual understanding of my point, consider this GAO chart depicting the current H-1B process:

As the chart shows, the only role for the DOL at the outset of the H-1B process is to perform a ministerial task, i.e., to review an employer attestation form (known as the Labor Condition Application or LCA) to confirm that it is not "incomplete or obviously inaccurate."  The GAO agrees with me that Congress should consider eliminating this step, and instead requiring U.S. Citizenship and Immigration Services (USCIS) to receive and certify the LCA when adjudicating the H-1B visa petition:

To reduce duplication and fragmentation in the administration and oversight of the H-1B application process, consistent with past GAO matters for congressional consideration, [Congress should] consider eliminating the requirement that employers first submit a Labor Condition Application (LCA) to the Department of Labor for certification, and require instead that employers submit this application along with the I-129 application to the Department of Homeland Security’s U.S. Citizenship and Immigration Services for review.

Eliminating the LCA review by DOL would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to "certify" the LCA. This savings of time is especially important each year in March when every day counts as employers scramble to file their H-1B petitions by April Fools Day in order to fall within the woefully small H-1B annual quota. 

USCIS opposes the GAO's suggestion, however, offering the following rationale to the GAO:

Homeland Security officials believed that Labor would be better suited to review the LCA because Labor has specialized knowledge about the computation of prevailing wages.

USCIS's justification for shirking a task that would result in an obvious time- and cost-savings doesn't stand up to close scrutiny.  Most employers use the DOL's online O*Net database and Standard Occupational Classifications to obtain the prevailing wage, and USCIS could easily cross-check those sources (as it now does with its VIBE system) to make sure the correct wage figure is used.  Even in the comparatively rare situations where an employer submits an alternate wage source, USCIS could easily adopt and apply DOL's regulations on the requirements for use of a union contract, an "independent authoritative source" survey, or "[an]other legitimate source" of prevailing wage data, or consult with the DOL.

Avoiding front-end delay is just a first step in process improvement.  The more urgent challenge is how best to consolidate enforcement of the H-1 program in one agency.  The current enforcement hodgepodge is reflected in this GAO chart:   

There is no reason that H-1B employers, by regulation, must be prepared to face a triad of investigations by three federal agencies housed in three different departments.  H-1B enforcement responsibility should be consolidated into one agency, and the rules governing the procedures, scope and duration of an investigation, along with employer due process protections (such as the Good Faith Compliance defense added by the H-1B Visa Reform Act of 2004) should be promulgated under the customary requirements of public notice and opportunity for comment under the Administrative Procedures Act. 

As I suggested to the immigration law professors, my recommendation would be to place all immigration policing authority with the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) in the Justice Department under an expanded grant of authority.  The money we'd save and the burdens lifted by permitting USCIS to serve as sole H-1B adjudicator and pinning on OSC the lone sheriff's star would be substantial. An added benefit would be that a neutral actor, the Justice Department, would have no dog in the fight, unlike the DOL whose mission is "foster[ing] and promot[ing] the welfare of the job seekers, wage earners, and retirees of the United States," rather than according fair process to employers. 

So, Congress, in keeping with the zeitgeist, can you spell?:

I-M-M-I-G-R-A-T-I-O-N

D-E-F-I-C-I-T

R-E-D-U-C-T-I-O-N