By Deborah J. Notkin, AILA Past President
This month, Migration Policy Institute rolled out its immigration reform proposal entitled Aligning Temporary Immigration Visas with US Labor Market Needs: The Case for a New System of Provisional Visas.
The report acknowledges the current misguided requirement of non-immigrant intent—the rule that a foreign national must intend to return home after his stay in the US—now imposed upon many U.S. non-immigrant work visas.
MPI is correct to point out that many non-immigrant foreign nationals want U.S. permanent residence. Thus, MPI’s proposal raises the concept of substituting “provisional visas” for many of the current non-immigrant visas, thereby eliminating the current “non-immigrant” intent requirement of many work visas and creating the assumption that many of those in provisional visa status would ultimately obtain permanent resident status. But, the proposal completely ignores the fact that two major non-immigrant employment visa categories, H-1Bs and L-1s, have been statutorily exempt from this “temporary intent” requirement for many years.
Once the MPI proposal explains the provisional visa concept, it’s all downhill. MPI lumps together current temporary visas including H-1Bs, H-1Cs, Ls, Os, Ps and Es (irrespective of the treaty aspect of E visas) and appears to consolidate these categories into one provisional visa.
And guess what? MPI proposes that a Commission recommend annual temporary visa levels to Congress. Hasn’t business already suffered enough from the caps on H-1b and H-2b visas?
Yet, MPI’s proposal would cap all of these visas. And it is unclear how the provisional visa would distinguish between an L-1 (intracompany transferee) and O-1 (foreign national of extraordinary ability). MPI apparently figures that a “one size fits all” is simpler—never mind that it fails to reflect the needs of the U.S. workforce and is unworkable from a practical business standpoint.
What exactly does MPI mean by a Commission to recommend temporary visa levels? This was explained by an MPI representative at a meeting of the employer community involved in immigration reform that I attended in Washington DC on June 4, 2009. MPI envisions the Commission to be made up of small number of people appointed by the executive branch of government. Small was defined as 5 to 9 people, but preferably 5.
There have been other articles criticizing a Commission. But, frankly, it scares me to death to think that 5 people, lacking any reliable economic data on future employment needs, would be empowered to make determinations about annual visa levels to meet the needs of business. The notion that such a Commission would set levels for employment-based permanent immigrant visas is bad enough. But the idea that such a Commission would set levels for employment-based temporary visas should terrify business people, economists, and anyone who believes that the U.S. should have a temporary immigration policy that is sufficiently nimble to respond to the next big technological wave, when it arrives, as it surely will.
MPI also expresses a common and legitimate concern regarding a foreign national’s ability to change employers. But MPI’s oversimplified view would allow a foreign national to change employers after one year without having to seek approval from U.S. Citizenship and Immigration Services. Nor is any nexus between a temporary worker’s original position and a future occupation required. Evidently, that is irrelevant to MPI which fails to comprehend the value of an employer and occupational tie to business immigration. In fact, cutting that tie, as MPI effectively proposes, may well lead to the same situation experienced in Canada, where foreign physicians end up as taxi drivers. Who knows? Maybe under MPI’s proposal microbiologists will become real estate agents. Not exactly the best way to have employment based immigration benefit our economy.
Nor does MPI’s provisional visa do anything to attract the best and brightest to our shores by shortening the road to permanent residency. To the contrary, it would require that a provisional immigrant wait 6 years to apply for permanent residence, similar to the current dysfunctional track we have now and which we want to eliminate. If a talented immigrant must wait six years to apply for permanent residence, how much longer will it take after that in agency processing time? Today, for those advanced degree holders from countries other than India and China, the wait for permanent residence can be anywhere from 10 months to 2 ½ years, depending on the specific type of petition. But for others, such as nationals of India and China with advanced degrees, as well as anyone in a job requiring a bachelor’s degree plus less than five years of experience, the wait is much longer.
MPI’s proposal offers no real improvement. A 6 year wait for permanent residence is not desirable for many immigrants, especially those with families whose children want to work as teenagers, be eligible for college scholarships and grants, and have some certainty after growing up for a substantial time in the U.S. Other countries make this process much quicker and user friendly. We should too.
Provisional Visas—a good concept but the details of MPI’s plan set us back rather than move us forward.
