January 2006 No. 15 SUMMARY Much of US legal admissions policy was formulated in the 1960s, with some US Employment- changes in the 1990s to reflect new realities. Foreign workers are admitted Based Admissions: through two, inter-connected admis- sions categories: permanent immigra- Permanent and tion and temporary work programs. The current system has some strengths Temporary in serving as a conduit for employ- ment-based admissions, but its many Susan Martin Director, Institute for the Study of International weaknesses reduce its ability to meet Migration at Georgetown University labor market needs or to protect ade- quately either domestic or foreign Background workers. Its principal strength is bring- ing to the country talented immigrants US employment-based policies are ostensibly demand-driv- who have high levels of employment. en. In most categories, employers petition for the admission of workers whom they wish to hire. The onus is on them to Among the problems is the inflexibility demonstrate that they have tested the labor market for a of the ceilings applied to various domestic hire and/or are taking steps to protect the domestic admission categories; processing and labor market, particularly by paying foreign workers prevail- administrative complexity and delays; ing wages. A totally different system chooses foreign workers inadequate mechanisms to measure on a supply-side basis. Point systems are a well-known way labor-market demand; inadequate pro- to attract human capital. Most do not test the labor market, tection for temporary workers; failure in contrast to demand-driven systems, as they tend to be to recognize the transitional, rather based on the presumption that persons with education or than temporary, nature of many non- specific skills, knowledge of the local language, youth and immigrant visa categories; and the very other desirable characteristics will benefit the overall econo- complexity of the current employ- my and society. ment-based system.This Policy Brief Permanent Immigration outlines the major permanent and temporary admissions categories, dis- During the 1990s, the United States admitted about cusses the weaknesses mentioned 825,000 legal immigrants each year, up from about 600,000 above, and concludes with principles a year in the 1980s (not counting those legalized under the for improving the employment-based 1986 amnesty), 450,000 a year in the 1970s, and 330,000 immigration system. a year in the 1960s. As immigration was increasing, the major countries of origin changed, from includes professionals with advanced degrees Europe to Latin America and Asia. and workers of exceptional ability. The third group is composed of other professionals, The four principal bases or doors for admis- skilled workers, and a limited number of sion are family reunification (either sponsored other workers; with the fourth permitting by green card holders or naturalized citizens), entry of religious workers; and the fifth employment, diversity, and humanitarian including entrepreneurs admitted for activi- interests. By far the largest admissions door is ties creating employment. Unused numbers for relatives of US resi- in higher priority groups can be passed down US employment-based dents. The second- to lower priorities. policies are ostensibly largest category of demand-driven. immigrants is immi- Not surprisingly, the employment-based immi- grants and their family grants are much more highly skilled than any members admitted for economic or employ- other class of immigrants. Nearly 20 percent ment reasons. Refugees, asylees and other are in managerial or executive occupations, humanitarian admissions are the third-largest and another two-thirds are professionals and category. Finally, about 50,000 immigrants technical sales workers (over 80 percent come under the diversity visa category — together). In contrast, only about one-fifth of immigrants from countries that have not family-sponsored immigrants are found in recently sent large numbers of immigrants to these two highly skilled occupational cate- the United States. gories. Diversity immigrants, for whom a high school degree is required, are at an intermedi- During the latter 1990s, about 450,000 immi- ate level, with about 45 percent finding work grants joined the US labor force each year, in these two occupational categories. Refugees, accounting for about 25 percent of the US for whom there are no economic screens, are yearly average increase of 1.7 million. Most of found most concentrated in operators, fabrica- these migrants (90 percent) are chosen tors, and laborer occupations (41 percent). because of family, humanitarian, or other cri- teria that do not consider labor market factors. Most employment-based immigrants are During the past twenty years, there have been sponsored by employers. There are some persistent calls for a shifting of admission clear advantages to such a system. Not sur- numbers from family categories, under which prisingly, rates of employment among these many immigrants with less than a high school immigrants are very high since they already education enter, to skills-based ones that have jobs and, generally, a supportive attract more highly educated immigrants. employer. Some argue that employers are the best judges of the economic contributions an The employment-based immigration category individual can make. A checklist, as used in is divided into five preferences, or groupings, a point system, may identify would-be each with its own admission ceiling. The migrants with educational or language skills, highest priority goes to persons of extraordi- but arguably these individuals may not have nary ability, outstanding professors and capabilities that are more difficult to measure researchers, and executives and managers of but that employers find valuable, such as an multinational corporations. The second group ability to work in teams. 2 Policy Brief The mechanisms to determine the legitimacy stantial $10,000 fee to a fund that would pro- of employer demand can be quite cumber- vide scholarships for US workers willing to be some. Most employment-based admissions are trained to fill the jobs going to foreigners. The subject to labor certification provisions. The idea was to make it employer must demonstrate that (a) there are equally or more expen- The mechanisms to deter- not sufficient US workers who are able, will- sive to hire a foreign mine the legitimacy of ing, qualified, and available at the time of the worker as it would be to employer demand can be application for a visa and admission into the hire a domestic one, quite cumbersome. United States and at the place where the alien with the fee going into a is to perform the work; and (b) the employ- pool that would help fill skills shortages. For ment of the alien will not adversely affect the lower skilled positions, where training would wages and working conditions of similarly not necessarily be needed to fill shortages, the employed United States workers. Under new fee could support testing of mechanization and streamlined rules, the employer must attest to other alternatives to admission of foreign work- having recruited US workers using prescribed ers. Auctions have been proposed as another mechanisms and demonstrate why applicants way to test employer demand. were not suitable to the job. Because the US system is employer/employee- In some cases, the Department of Labor (DOL) driven and a job offer is essential, most of has established a Schedule (A) of occupations those admitted to permanent residence in the for which there are “not sufficient US workers employment-based categories are already in who are able, willing, qualified and available.” the United States. Due to delays in labor certi- These do not require a test of the labor market fication, employers tend to use temporary visa for green card admission. This list includes a categories to bridge the gap between the deci- rather limited number of occupations. The sion to hire the worker and the government’s labor certification process normally requires grant of permanent resident status. As a result, an attorney’s help, and the wait for approval the recruitment process required by labor cer- can be several years, first at DOL and then US tification rules is often a farce, the employer Citizenship and Immigration Services (UCIS) having already hired the foreign worker. at the Department of Homeland Security (DHS), which assumed responsibility from the Temporary Workers Immigration and Naturalization Service. Temporary work categories are increasingly Alternatives to labor certification have been important as the vehicle for admission of for- proposed by a number of academics and eign workers in all skill categories. Each year, experts. Some mechanisms test demand by hundreds of thousands of visas are issued to pricing immigration in a way that tests employ- temporary workers and their family members. ers’ resolve, others use objective measures of In addition, an unknown number of foreign shortages or demand to vary visa allotments. students are employed either in addition to For example, the Congressional-appointed their studies or immediately thereafter in prac- “Jordan Commission” for Immigration Reform tical training. The growth in the number of for- proposed that employers could hire the immi- eign workers admitted for temporary stays grants quickly and easily if they paid a sub- reflects global economic trends. In fast-chang- 3 ing industries, such as information technology, organizations. Professionals, managers and having access to a global labor market of executives may also enter under the North skilled professionals is highly attractive. Also, American Free Trade Agreement. With the as companies contract exception of the H2-A and H2-B visas, all of Temporary work categories out work, or hire con- these temporary work categories require a sig- are increasingly important tingent labor to work nificant level of skills or education. as the vehicle for admission on specific projects, of foreign workers in all the appeal of tempo- The regulations governing admissions vary skill categories. rary visas, rather than from visa to visa.