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Practitioner Says Merit-Based Visa Could Create Uncertainty for Employers

Monday, May 20, 2013
By Laura D. Francis

The new, merit-based visa program proposed in the comprehensive immigration bill introduced by the Senate's “gang of eight” has the potential to create uncertainty for employers because of the operation of the points-based system, Stephen Yale-Loehr, an attorney with Miller Mayer in Ithaca, N.Y., and professor at Cornell University Law School, said May 17 at a media briefing.

Yale-Loehr said the proposed merit visa in the legislation (S. 744) introduced April 17 (73 DLR C-1, 4/16/13; 74 DLR A-11, 4/17/13) has received relatively little public attention in comparison to other provisions of the bill, such as the proposed changes to the H-1B highly skilled guestworker program and the proposed W visa for low-skilled, nonagricultural foreign workers.

Under the bill, Yale-Loehr said, the visas would go to the immigrants who attain the largest number of points each year, with points awarded for factors such as education level, work experience, having a job offer from a U.S. employer, whether the immigrant is an entrepreneur, having a “high-demand occupation,” “civic involvement,” knowledge of English, and whether the immigrant would qualify for the diversity visa lottery, which would be eliminated.

In addition, Yale-Loehr said the bill proposes a “tier two” of characteristics that also would be awarded points, including whether the immigrant is a caregiver, an “exceptional” employee, or has immediate relatives in the United States.

The bill would award 50 percent of the new visas to immigrants with the most points under the top tier and 50 percent to those with the most points under the second tier, he said.

For the first five years after the bill's enactment, the visas would be used solely to draw down current employment- and family-based visa backlogs. In year five, 125,000 merit visas would be available, with a potential for that number to reach 250,000, Yale-Loehr said.

System Would Result in Uncertainty
Yale-Loehr said employers who wish to hire someone through the merit-based visa system could face an additional layer of uncertainty as to whether the individual actually would receive a visa.

Under the current system, he explained, employers generally can guarantee they can hire the foreign national employee they want once they successfully complete the labor certification process.

However, he said, whether a foreign national receives a merit visa would be based on how he or she ranks in total number of points as compared to other immigrants competing for the visas that year, meaning that his or her entry is uncertain.

Yale-Loehr said the Senate bill as a whole “will not be a panacea for any employer,” although the proposed changes are “better than nothing.”

“Our current [immigration] system is broken and we have to try something new,” Yale-Loehr said. At the same time, he suggested that a comprehensive bill may not make it through the entire Congress this year.

House Could Stick With Piecemeal Approach
There are various possible scenarios for legislative activity, he said. One could be that the two chambers each pass a version of a comprehensive bill, which gets worked out in conference.

Another could be that the Senate passes the gang of eight's bill, but the House only passes components of the bill, such as the DREAM Act--which would grant legal status to certain young, undocumented immigrants--and the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act (18 DLR A-11, 1/27/11)--which would give green cards to foreign graduates of U.S. colleges and universities with advanced degrees in science, technology, engineering, and mathematics fields.

Yale-Loehr said, however, that the latter approach may not fly because of congressional concern that postponing the more controversial aspects of the comprehensive bill--such as a path to citizenship for undocumented immigrants--could mean that they eventually die in Congress.

Furthermore, Yale-Loehr said if the Senate is able to pass S. 744 by a large majority of 70 or more, that may put pressure on the House to approve the bill as well.

The immigration debate is like a Rubik's cube where five different people are trying to solve the puzzle at the same time and twisting all the pieces in different directions, Yale-Loehr said.

By Laura D. Francis

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