Time For Immigration Reform

A merit-based system to replace our employment-based green card system will be beneficial to all.

To mark his first 100 days in office, President Joe Biden implored Congress to act on immigration reform. Immigration, he said, has always been essential to America, and it’s time we ended the exhausting war over it. “For more than 30 years, politicians have talked about immigration reform and we’ve done nothing about it,” he said. “It’s time to fix it.” I agree wholeheartedly. Now is the time to be bold, to make lasting and impactful changes — especially to our employment-based immigration system. Let’s consider a complete overhaul and introduce a merit-based system to replace the broken one we have now.

It’s not a new concept. In 2013, the Senate passed S.744, a comprehensive immigration reform measure. It was introduced in the House but didn’t get far. It sought to create a merit-based system for employment-based green cards, and in my opinion, was a good starting point. It was a reasonable foundation for jump-starting a new debate to finally bring about needed reform. It awarded points for skills, work experience, education, and more. It would likely be more transparent than the current system that relies on a convoluted process of proving that there are no other suitable American workers for the job. And will likely be more equitable than the current system — only if created well. It would be less burdensome, costly, and stressful for all parties involved, including the government agencies that adjudicate this process.

Employers seeking to sponsor a noncitizen employee for a green card must first test the labor market and prove a qualified U.S. worker isn’t available for the position. Known as Permanent Labor Certification applications (or PERM), the process is long, exhausting, and expensive. 

From beginning to end, it can take 18 months — often longer. Only after the labor market has been tested can the employer file a green card sponsorship application with the U.S. Citizenship and Immigration Services on the worker’s behalf — which has its own costs, tediousness, and often lengthy time frames. Sometimes expedited fees can be paid, but not always.

But before employers can even test the market, they must analyze the position, the duties, and the skills required for that job. The Department of Labor (DOL), which oversees PERMs, has a list of job codes for almost any job you can imagine — from teachers to doctors to computer programmers. But not all. Oddly enough, there’s no code for one of the hottest jobs on earth, data analyst. Those codes determine the salary, duties, and other factors associated with that job. Get the code wrong and the application goes up in smoke. This creates a problem for jobs that don’t have a nicely fitting cookie cutter code, such as a data analyst.

Employers test the market by advertising available positions and sifting through the resulting job applications. If someone even minimally qualified is found, the application process ends, and the employer must either hire that person or stop the process and restart it in the future.

Part of the PERM process requires an application to the DOL to seek a wage level for the job, otherwise known as the “prevailing wage determination” (PWD). There are four levels of wages, entry level or level one to very experienced or level four. Before the pandemic, such a request took four to six months.

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In May 2021, the DOL introduced an updated version of Form 9141, which is used to make this request. The change came with little notice and no opportunity to comment on the form. It originated with the Trump administration, but the Biden administration is allowing it to take effect. In essence, the updated form will collect detailed additional information about the position that was not previously required. DOL said it would help streamline the process by collecting more information. Practically, I think it will make the process more difficult — both in preparation by employers and lawyers and adjudication by the agency.

So, what’s the solution here?

President Biden and this administration are eager to overhaul the immigration system. The American public is ready for change. Reform brings the opportunity to implement new concepts and programs that have the promise to be more effective and beneficial for the U.S. economy. The current system is a burden on businesses, individuals, and the agencies alike. These apparently small changes will make the burden significantly worse.

Therefore, in my opinion, the administration should set aside this new form and allow the current process to continue while a complete system overhaul is considered. A merit-based immigration system, created properly, can be good for the country. Canada and Australia have such systems. We can learn from them and establish our own to fit.

I suggest that Congress and the administration revive the merit-based provisions of Senate Bill S.744 and work toward real reform, rather than attempt piecemeal “improvements” that do exactly the opposite. Make immigration reform benefit the United States and its economy at a time it is most needed.

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Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.