I recently gave a presentation to a community group on why the immigration system is broken. One of the factors I presented for the current dysfunction is what I call the Fundamental Paradox of Immigration Reform. That is, the only people who can fix the immigration system are the very same people that broke it in the first place. Since 1952, every time Congress has attempted to fix anything immigration-related, it has done more harm than good.
Almost on cue after the talk, Sens. Dick Durbin (D-Ill.) and Mike Rounds (R-S.D.) introduced S.2384 to demonstrate the Fundamental Paradox of Immigration Reform at work.
The bill describes itself as “A bill to provide lawful permanent resident status for certain advanced STEM degree holders, and for other purposes.” Anyone involved in technical work will recognize a problem with the bill from the title. “STEM” has become a meaningless buzzword. If you want to instantly mark yourself as a wannabe, use terms like “STEM” or “cyber” in your speech. Illustrating that point, Law360 quoted Sen. Durbin: “By denying international students with advanced STEM degrees the opportunity to continue their work in America, we are losing their talents to countries overseas and won't see the positive impacts of their American education.”
The bill purports to make it easier for foreign students with “STEM” degrees to stay in the United States. Sens. Durbin and Rounds play the buzzword game by defining “STEM” as fields of study found in one of seven groups within the Classification of Instructional Programs of the Department of Education taxonomy. This effectively kicks the can to the Department of Education, because it can change their taxonomy at will. If there is a specific benefit limited to foreign students in “STEM”, then universities will go through the exercise of lobbying the Department of Education to include more programs within the “STEM” classification. Universities will also reclassify programs so they will become “STEM”. We have seen this game played already with the “STEM” extensions for the Optional Practical Training program, where universities have taken MBA programs that are decidedly not related to science or technology and have had them classified as “STEM”. Incorporate “STEM principles” and any degree can become “STEM”. It’s just a buzzword.
One of the benefits conferred by the bill is that graduates with a master’s degree or higher in a “STEM” field in the United States and their dependents will no longer count toward annual numerical caps on green cards. According to Sen. Durbin, “America should be focused on maintaining a strong STEM workforce — to strengthen our economy and enhance our ability to compete on the world stage.” Yet Sen. Durbin’s bill has nothing do with maintaining a strong workforce. If it is in the national interest to have a strong “STEM” workforce, why does a graduate from a fourth-tier university in the United States get preference in immigration over a graduate from a top-tier school abroad?
The Durbin/Rounds bill would seem to have less to do with building a strong workforce in the U.S. and more to do with giving universities the ability to effectively sell green cards to foreign students. Instead of having limits on employment-based immigration being set by Congress, immigration numbers would be set by the number of master’s degrees that universities could churn out. Sens .Rounds and Durbin want to make university admissions committees the gatekeepers of the immigration system.
Another gift to universities is that Sens. Rounds and Durbin would establish “dual intent” for foreign students admitted into a “STEM” graduate program. This aspect of the bill puts the Fundamental Paradox of Immigration Reform on full display. Normally, nonimmigrants must show they will return to their home countries and thus cannot apply for permanent residency directly. Dual intent would allow such ostensible aliens to apply for permanent immigration.
The Rounds/Durbin bill does not require that such “STEM” students actually graduate; they just have to be admitted. This allows aliens to enter the United States on a student visa, search for jobs, and apply for green cards.
An unworkable oddity of the Rounds/Durbin bill is that an alien seeking an advanced “STEM” degree must “apply for admission” and follow a new vetting process. The bill text requires an application for admission even if one has already been admitted on a student visa. The drafters of the bill made no effort to explain how this would work in the case of major changes, especially in cases, such as MBA programs, where one is admitted into a program with multiple tracks and were some tracks are “STEM” and other tracks are not.
The apparent purpose of vetting is to require those entering “STEM” programs to undergo the same checks as those getting a student visa from outside the United States. In any event, the bill delegates the specific process for this vetting to the Secretary of Homeland Security to work out. When such authority is delegated to someone like Alejandro Mayorkas, one can be certain any such vetting would be perfunctory.
The Durbin/Rounds bill illustrates that Congress rarely takes immigration policy seriously. The sponsors have made no effort to work through the implications of their bill. Hopefully, S.2384 is just an appease-the-lobbyists measure that will die quickly. In any event, S.2384 shows the Fundamental Paradox of Immigration Reform in action.