Anyone who works in immigration soon discovers that it is a complicated maze of laws, regulations, and procedures governing who may enter the United States under what circumstances and for how long. These statutes also specify who is required to leave, under what circumstances, and whether penalties are imposed. When it comes to employment-based immigration, the Immigration and Nationality Act (INA) spells out the defining terms, selection criteria, requirements for employers, and admissions steps in sections scattered throughout the law.
In terms of employment-based immigration, the INA assigns specific duties to the Department of Homeland Security’s U.S. Citizenship and Immigration Services, the State Department’s Bureau of Consular Affairs, and the Department of Labor’s Division of Foreign Labor Certification. When it comes to foreign nationals who work without proper employment authorization as well as employers who knowingly hire unauthorized foreign nationals (commonly called employer sanctions), DHS’ Immigration and Customs Enforcement is the lead agency. DOL’s Wage and Hour Division is responsible for administering and enforcing worker protections provided in several temporary foreign worker visa categories. The Wage and Hour Division’s primary duties include enforcing the minimum wage, overtime, and child labor protections. The Department of Justice’s Immigrant and Employee Rights Section investigates and prosecutes charges of immigration-related employment discrimination. For those counting, that is six federal agencies.
Rather than march through this maze to identify subsections that warrant reforming and the agencies that merit reorganizing, I propose envisioning employment-based immigration policies as plane geometry. Each plane represents a key perspective of the reform debate.
National Economic Interests: One plane consists of policies that address the national economic interests, such as prosperity, productivity, wage and job growth. Numerous research studies have found that high-skilled immigration yields a net economic benefit for the nation and that immigration targeted to the specific occupational needs of the labor force stimulates economic growth.
Employers: On a second plane are the policies that ensure U.S. workers are not adversely affected by foreign workers, for example by displacement, depressed or stagnant wages, or degradation of working conditions, and that foreign workers are not exploited because of their immigration status. Policy research has documented that foreign workers have had deleterious effects on certain U.S. workers, especially low wage workers and other immigrant workers. Similarly, foreign workers are all too frequently exploited because of the immigration status.
Workers: On another plane are policies that address employers’ needs for certain workers to fill specific jobs. Skills mismatches in a local labor market often lead employers to go abroad to find people able and available to work on the tasks at hand. In some sectors, these are grueling, low-wage jobs that many in the U.S. labor force are not interested in doing, notably agricultural labor. For many jobs requiring high-skill levels, the pool of qualified hires includes foreign nationals graduating from U.S. colleges and universities.
Opportunities for International Students: On the fourth plane are the policies that offer opportunities for international students and temporary foreign workers in the United States who would like to become permanent residents. U.S. colleges and universities as well as research laboratories and businesses are actively engaged in the increasing the human capital of international students and foreign workers, many of whom would like to permanently reside in the United States.
Regularization: On the fifth plane are foreign nationals in the United States without legal authorization, many of whom have been working and contributing to the U.S. economy for years. Any adverse impact they might have had on U.S. workers would have been factored in years ago. Most are unauthorized because no pathway exists for them under current law. They typically pay taxes but are barred from federal assistance. The COVID-19 pandemic has demonstrated that many unauthorized people are essential workers.
Despite a commonality that crosses each of these five planes, most of the time it seems these planes are floating in space without intersecting. Arguably, the planes are not even parallel. We can nonetheless use these planes to build a structure for reforming employment-based immigration.
The intersection of the employers and workers (second and third) planes is surprisingly possible. A shift away from the arduous up-front process of labor certification and attestation to an internet-based recruitment system that uses sector-centered paths could alleviate much of the paperwork burdens and bureaucratic delays. Rather than emphasizing the frontend scrutiny of employers petitioning for foreign workers, the reform efforts would be better served by focusing on “quality of life” immigration enforcement on the backend. As I have written elsewhere, quality of life immigration enforcement would prioritize investigations of specific worksites for wage, hour, and safety violations, sweatshop conditions, and trafficking in persons. That it is rare for employers who hire unauthorized workers to face criminal or civil penalties suggests that the law may need to be tweaked, in addition to be more vigorously enforced, so that employers who violate immigration law are prosecuted. Quality of life enforcement also would encompass reliable employment verification systems so that honest employers are held harmless.
The national economic interest plane would include policy options of a point system based upon specific criteria or an independent commission that annually proposes criteria—either of which aims to meet the nation’s labor force needs. If the criteria emerging from either a point system or a commission placed a value on education, training and work experience in the United States, then the national interest plane would intersect with the fourth plane representing opportunities for international students and temporary foreign workers as well as the fifth plane that would regularize unauthorized workers who have been contributing to the economy. If the national interest plane included an annual auction of visas for employers seeking to fill jobs with foreign workers, then the plane would intersect the third plane representing employers seeking to hire foreign workers. Quality of life enforcement as a national interest would ensure intersection with the second plane. Wow! We have almost built the cube.
Lest this exercise in immigration geometry appear too easy, it is time to introduce the sixth plane—the one that would complete the cube. This policy plane is one of nondiscrimination and equity in immigrant admissions, a value that many believe remains significant. Since the Immigration Act of 1965 eliminated the national origins quota law, the United States has aspired to offer equitable access to immigrant admissions so that immigrants from no one nation or set of nations would dominate the flow. A quick look at the backlogs of approved employment-based petitions reveals that most of the employment-based immigrants currently come from a handful of countries. These countries are oversubscribed because demand for visas exceed the per-country ceilings and worldwide numerical limits.
Efforts to reform the nondiscrimination and equity plane around employment-based immigration would quickly intersect—or more aptly put—would collide with family-based immigration. In turn, this intersection would provoke debate about the projections of future flows and the optimal levels of total annual immigration. These issues expose dependence interests on the current system and have been some of the most difficult to navigate in past efforts at reform. However, success on these issues could create a more coherent and accessible immigration system for the country. More thinking about how best to do this is clearly needed.