Hidden Double Attacks on our Immigration System

By David North, February 10, 2012

In addition to their massive assaults on the very core of our immigration laws – such as the use of "prosecutorial discretion" in deportation cases – the more-migration people in and out of the administration are keeping up a steady drum roll of proposed and actual changes in the rules, all intended to expand highly-specific bits and pieces of migratory flows and, in many cases, to short-change the Social Security system.

These proposed changes, in short, are designed to appear small and non-controversial but, in fact, do double damage to important American systems. That they are often both obscure and complicated make them that much more dangerous.

New College Grads. An excellent example is the proposed expansion of a program that puts new U.S. citizen or permanent-resident college graduates at a substantial disadvantage compared to F-1 (foreign student) graduates because employers hiring the Americans will pay 7.65 percent more in wages and taxes than if they hire the foreign graduates for the same basic salary.

This odd break for foreigners comes because many recent alien college grads and their employers are excused from paying payroll taxes for 29 months after graduation. I figured in an earlier blog that an employer could save $10,000 by hiring a recent F-1 graduate rather than an American at the same salary.

Thus this program simultaneously shoulders aside citizen and resident college graduates and cheats the Social Security and Medicare Trust Funds. A real twofer!

Did Congress make this decision? No – ICE did.

ICE has long had the power to define the employment roles of F-1 nonimmigrant students. Last year it decided that the optional practical training (OPT) period, a post-diploma operation, set previously at 12 months, could be expanded to 29 months for F-1 grads with a new degree in a long list of technical fields, including those in science, technology, engineering, and math (STEM) and many other disciplines. People in OPT status, and their employers, are excused from paying payroll taxes.

The most recent expansion in the program is a minor one, but simply reminds us of the program's existence; for details see here. Under the earlier program one's academic specialty was governed by one's most recent degree. Now, if the alien happens (unlikely though this sounds) to have added an MA, in say, art, to an earlier bachelor's degree, in say, math, then the earlier degree could be used to obtain the OPT preferences.

In short, it was another one of the instances in which DHS pays enormous attention to a tiny population, while exclaiming in a headline "DHS Reform to Attract and Retain Highly Skilled Immigrants". That most of the beneficiaries of this and other "reforms" announced at the same time are not immigrants, but are nonimmigrants, is just another example of the DHS' continuing distortion of what it is doing.

Spouses of Best Paid H-1Bs get to work. The double whammy in the case of the decision to make employment legal for a small subset of spouses of H-1B workers, described in a recent blog relates to a totally unnecessary increase in the number of nonimmigrant workers at a time of massive unemployment, and an exaggeration of the income gap between the well-to-do and the poverty-stricken.

Of all the spouses of H workers of various classes, those who are to be granted employment rights are the most prosperous. They are married to H-1B principals who are not only high-tech and professional workers, they have been selected by their employers for green card status, and thus they are already among the elite. The new action will do nothing for the spouses of farmworkers and other low-income nonimmigrant workers.

The DHS announcement does not mention payroll taxes; presumably these new H-4 workers (i.e., those married to H-1B workers) would pay payroll taxes as do other H workers.

Meanwhile, in the Marianas . . . where immigration policies are always at their worst, the far right-wing Gov. Benigno Fitial, not content with the DHS decision to allow an enormous number of nonimmigrant workers for the islands, has sued the IRS because it ruled that such workers and, more importantly to Fitial, their employers have to pay payroll taxes.

Congress ordered that the number of nonimmigrant workers in these islands, a U.S. possession lying north of Guam in the western Pacific, be lowered. So, with Fitial pushing them, DHS has decided that the number of such alien workers cannot exceed 22,416, a reduction of exactly one from the prior number, despite widespread unemployment in the CNMI. That's a staggering 41.6 percent of the entire population of the island territory, and about 70 percent of the private sector labor force. For more background see here.

Each of these three actions, regarding OPT, H-1B spouses, and the Marianas, has something in common; each tends to expand the number of nonimmigrant workers in the U.S. or more exactly, in the case of the CNMI, not reduce that number as it should be reduced.

On the Other Hand. In addition to these troubling proposals, the administration and its friends are also engaged in what I regard as a series of minor operations, dressed up in exaggerated language, to make the system seem more open for migration.

For example, the administration is trying to make it easier for three groups of potential immigrants to secure green cards: immigrant investors (EB-5), outstanding professors and researchers (EB-1), and, for a little contrast, young people in the custody of juvenile courts. The latest easing for the outstanding ones and EB-5s is announced in the previously-cited DHS statement, and that for the juveniles in an earlier blog of mine.

What I find interesting about all three of these efforts is the fact that all are within the numerically limited employment-based allocation of green cards, meaning that the total number of new immigrant visas issued each year will not be altered by any of this USCIS "reform" activity. Some parts of the flow will simply be augmented at the cost of other parts.

Similarly, the administration-supported bill HR 3012, regarding EB-2 and EB-3 backlogs, will not produce any more admissions. It will just speed green card status up for some skilled and not-so skilled Indians and Chinese, while slowing the issuance of green cards to comparable people from other nations.

While I have trouble with the EB-5 and juvenile adjustments, I see these four actions as far less harmful than the "reforms" that add substantial numbers to the inward flows of immigrants and nonimmigrants. Better the administration spend its energies on these proposals rather than the others.