The murky area of what the Obama administration might do administratively to open the gates to more migration is a little less murky now, thanks to immigration lawyer Angelo Paparelli.
He suggested in a June 10 article in Immigration Daily that five highly specific gaps be opened in the current system for admitting still more high-tech workers and their relatives.
It's a skilled bit of advocacy on Paparelli's part as he discusses two ways to expand the flows of nonimmigrant workers and three ways to hand out more green cards.
His first suggestion is to repeal existing restrictions that prohibit what I call the "I am my own grandpa" green card applications. Currently if you are here on an H-1B visa you cannot create your own corporation and hire yourself and get a green card as a result. He wants to eliminate that limitation.
His second and third recommendations deal with the already too loose regulations on the importation of L-1 workers, a flow that does not even have the minimal oversight that we see in the H-1B program. The L program is particularly attractive to employers because there are no numerical limits on the issuance of L visas and it has the additional lure that L spouses are permitted to work, it, unlike the H-1B program. Further, the Labor Department, that sometimes zaps really exploitative employers, has nothing to do with L visas.
What the lawyer wants is for the government to remove two sensible definitional decisions that have slightly narrowed the influx of these L-1 workers; in one case the government decided that to be a manager you had to actually have people to manage, and in the other the authorities narrowed the definition of "specialized knowledge" to a point where some would-be L-1 nonimmigrants were not allowed to migrate.
The fourth item on the wish list involves the "special merit" foreign citizens and the grant of labor certifications. Again, this is close to a "I am my own grandpa" situation, but let's let the lawyer describe it:
"DoL under its Schedule A regulation has long allowed person whose skills are in short supply to avoid the labor market test normally required and obtain an employment-based green card. . . Back in 2002 AILA [American Immigration Lawyers Association] asked DoL, but the agency refused to expand Schedule A by allowing "special merit" foreign citizens to immigrate. . . Individuals in the unwelcome [to DoL] category include investors, entrepreneurs and working owners, and foreign-born employees who are "so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operations without the alien."
The fifth suggestion involves one of the nuances of the odd waiting lists that are a feature of U.S. immigration policy and were covered in a recent blog. Currently, and this is particularly true for high-tech workers from India, and to a lesser extent, China, a would-be skilled green card worker is put on a long waiting list; if the worker has children they may pass their 21st birthday before daddy gets his green card, so they would be "aged-out" of their childhood eligibility. The lawyer's proposal is to freeze the children's eligibility at the time of the filing of the green card application. This suggestion, alone of the five, would not make an immediate negative impact on the U.S. labor market, and might be worth considering in a total package that otherwise substantially lowered the levels of immigration to the States.
Paparelli's five suggestions, because they are highly technical and because they deal with both legal entrants and skilled workers, will be all too attractive to an administration that seems to be looking for ways to create more migration without needing congressional approval.
To be forewarned, as we now are, is to be forearmed.