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Skill-Based Immigration Immigration can support a national interest in bringing to the U.S. individuals whose skills would benefit our society. It also can help U.S. businesses compete in the global economy. This national interest in the competitiveness of business must be balanced by an equally compelling national interest in developing a U.S. workforce that has the skills necessary to compete in the global economy. Immigration policy can contribute to this national interest by: n Focusing on the admission of highly-skilled individuals. Two major objectives of U.S. businesses seeking foreign workers are to obtain high skilled labor where shortages exist and to enhance operations through the employment of individuals with outstanding or unique skills. The contributions made by such workers go beyond the particular businesses they assist: their work may help create jobs for U.S. workers and may enable the export sector of our economy to grow. Immigration policy must focus on the admission of individuals with the high skills that will benefit U.S. society. [Chart 22 demonstrates the wide range of occupations of principal immigrants admitted in employment-based categories in FY 1994.] n Giving employers access to a global labor market when they cannot identify U.S. workers with knowledge and expertise required for a specific job or when they can demonstrate clearly a labor shortage that cannot be filled through short-term training programs. The needs of U.S. companies were well-stated by Austin T. Fragomen, Jr., Chairman of the Board, American Council on International Personnel. At a consultation on employment-based immigration held by the Commission, Mr. Fragomen (1995) noted that "Business needs access to a global labor pool from which		- -


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		Total 1st 2nd 3rd¹ 3rd 4th 5th (priority (advanced (skilled (unskilled (special (investors) workers) degrees) workers) workers) immigrants) Principals Admitted 41,653 8,097 6,745 17,871 4,136 4,647 157 Professional, specialty, and technical Engineers, surveyors & mapping scientists 4,081 204 2,012 1,846 5 12 2 Mathematical and computer scientists 1,664 187 592 884 0 1 0 Natural scientists 1,541 685 665 189 0 2 0 Doctors 759 169 501 85 1 2 1 Nurses 4,319 0 88 4,215 9 7 0 Other health occupations 1,618 79 243 1,279 7 10 0 Teachers, postsecondary 1,676 561 867 196 3 46 3 Teachers, except postsecondary 744 111 173 361 20 79 0 Social, recreation, and religious workers 3,324 3 25 64 3 3,229 0 Writers, artists, entertainers, and athletes 1,164 494 92 521 12 44 1 Technologists & technicians, except health 1,004 0 327 629 19 29 0 Other² 347 53 160 121 1 12 0 Executive, administrative, and managerial 9,065 5,551 845 2,443 62 45 119 Sales 309 0 18 252 29 7 3 Administrative support, including clerical 878 0 75 662 74 64 3 Precision production, craft, and repair 1,969 0 28 1,399 298 243 1 Operators, fabricators, and laborers 1,430 0 0 604 788 37 1 Farming, forestry, and fishing 159 0 2 111 40 5 1 Service Occupations 4,952 0 32 2,010 2,765 145 0 No occupation³ 598 0 0 0 0 579 19 Unknown or not reported 53 0 0 0 0 49 4 ¹Does not include persons admitted under the Chinese Student Adjustment Act. ²Includes: architects; counselors, educational and vocational; librarians, archivists and curators; social scientists and urban planners; lawyers and judges. ³Includes: homemakers; unemployed or retired; and students and/or children under age 16. Source: U.S. Immigration and Naturalization Service, Statistics Division
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	Chart 22. Occupations of Principal Immigrants Admitted in Employment-Based Categories: FY 1994


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they can select the brightest and best. Exploitation of global business opportunities, expansion in the international markets and delivering the highest calibre professional and financial services to global companies is dependent upon a global workforce." At another consultation, representatives of several large corporations spoke of the desirability of bringing foreign nationals to the United States to help identify and increase sales to foreign markets (Roundtable on Economic and Labor Impacts, Austin TX 1995). They also pointed out that the introduction of new lines of business was sometimes dependent on their ability to hire individuals with unique knowledge and expertise. Under current policy, U.S. businesses indeed have access to a global labor market. Chart 23 shows the countries of origin of employment-based immigrants in FY 1994. More than 175 countries are represented. However, as with other parts of U.S. immigration policy, a smaller number of countries dominate. More than 58 percent come from the top ten countries. Chart 24 shows the top ten states and metropolitan areas to which employment-based immigrants go. In addition to the major immigration destinations, much smaller numbers have settled in other locations, such as Maryland, Virginia, Illinois, Pennsylvania, and Massachusetts, each of which has 3-4 percent of the total employment-based immigrants. n Helping companies conducting business in both the United States and internationally reassign personnel as needed to maintain their competitiveness. International corporations often find it necessary to shift key personnel in response to changing conditions and needs. In particular, executives and		- -


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		Total 1st 2nd 3rd¹ 4th 5th (priority (advanced (skilled/unskilled (special (investors) workers) degrees) workers) immigrants) Total Admitted 101,994 21,053 14,432 55,659 10,406 444 Top 10 Countries (number) China, Mainland 12,262 1,487 2,516 8,115 89 55 Philippines 9,569 261 750 6,955 1,595 8 India 8,372 1,273 3,216 3,454 423 6 Canada 6,937 3,313 868 2,427 312 17 United Kingdom 5,161 2,726 432 1,758 235 10 Korea 4,619 642 379 2,529 1,033 36 El Salvador 3,783 1 8 3,522 252 0 Taiwan 3,868 853 1,155 1,590 122 148 Mexico 3,256 392 53 2,085 714 12 Japan 2,070 1,102 116 688 155 9 Other 42,097 9,003 4,939 22,536 5,476 143 Top 10 Countries (percentage) China, Mainland 12.0 7.1 17.4 14.6 0.9 12.4 Philippines 9.4 1.2 5.2 12.5 15.3 1.8 India 8.2 6.0 22.3 6.2 4.1 1.4 Canada 6.8 15.7 6.0 4.4 3.0 3.8 United Kingdom 5.1 12.9 3.0 3.2 2.3 2.3 Korea 4.5 3.0 2.6 4.5 9.9 8.1 El Salvador 3.8 4.1 8.0 2.9 1.2 33.3 Taiwan 3.7 0.0 0.1 6.3 2.4 0.0 Mexico 3.2 1.9 0.4 3.7 6.9 2.7 Japan 2.0 5.2 0.8 1.2 1.5 2.0 Other 41.3 42.9 34.2 40.5 52.5 32.2 ¹Includes skilled workers and unskilled workers. Does not include persons admitted under the Chinese Student Adjustment Act. Source: U.S. Immigration and Naturalization Service, Statistics Division
	Chart 23. Leading Countries of Birth of Immigrants Admitted in Employment-Based Categories: FY 1994 (Ranked by Total)

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		NUMBER PERCENT Total 1st 2nd 3rd¹ 4th 5th Total 1st 2nd 3rd¹ 4th 5th (priority (advanced (skilled/ (special (investors) (priority (advanced (skilled/ (special (investors) workers) degrees) unskilled immigrants) workers) degrees) unskilled immigrants) workers) workers) Total Admitted 123,291 21,053 14,432 55,659 10,406 444 100.0 100.0 100.0 28.2 100.0 100.0 Top 10 States California 33,187 4,219 3,056 15,674 2,920 206 26.9 20.0 21.2 28.2 28.1 46.4 New York 19,899 2,273 1,118 9,218 2,222 23 16.1 10.8 7.7 16.6 21.4 5.2 New Jersey 8,751 1,411 921 4,721 645 18 7.1 6.7 6.4 8.5 6.2 4.1 Texas 6,394 1,352 787 3,111 567 40 5.2 6.4 5.5 5.6 5.4 9.0 Florida 6,207 1,703 504 2,883 791 49 5.0 8.1 3.5 5.2 7.6 11.0 Maryland 4,566 436 408 2,732 260 2 3.7 2.1 2.8 4.9 2.5 0.5 Virginia 4,323 413 373 2,864 266 0 3.5 2.0 2.6 5.1 2.6 3.6 Illinois 4,219 730 577 2,068 284 3 3.4 3.5 4.0 3.7 2.7 0.7 Pennsylvania 3,450 745 765 1,093 162 8 2.8 3.5 5.3 2.0 1.6 1.8 Massachusetts 3,407 804 577 1,066 205 3 2.8 3.8 4.0 1.9 2.0 0.7 Other 28,888 6,967 5,346 10,229 2,084 92 23.4 33.1 37.0 18.4 20.0 20.7 NUMBER PERCENT Total 1st 2nd 3rd¹ 4th 5th Total 1st 2nd 3rd¹ 4th 5th Top 10 Metro Areas² LA-Long Beach CA 16,482 1,734 926 9,523 1,249 95 13.4 8.2 6.4 17.1 12.0 21.4 New York NY 16,032 1,506 760 7,659 1,863 16 13.0 7.2 5.3 13.8 17.9 3.6 Washington DC 7,804 569 555 5,456 426 3 6.3 2.7 3.8 9.8 4.1 0.7 Chicago IL 3,706 633 480 1,907 259 1 3.0 3.0 3.3 3.4 2.5 0.2 San Jose CA 3,592 587 870 1,186 98 13 2.9 2.8 6.0 2.1 0.9 2.9 Orange Cty. CA 2,790 410 222 1,505 238 21 2.3 1.9 1.5 2.7 2.3 4.7 Boulder-Longmont CO 2,752 662 481 1,434 139 0 2.2 3.1 3.3 2.6 1.3 0.0 San Francisco CA 2,632 413 261 748 166 24 2.1 2.0 1.8 1.3 1.6 5.4 Houston TX 2,523 654 275 1,244 110 17 2.0 3.1 1.9 2.2 1.1 3.8 Oakland CA 2,358 290 316 632 198 21 1.9 1.4 2.2 1.1 1.9 4.7 Other Metro 56,798 12,417 8,129 22,359 5,018 189 46.1 59.0 56.3 40.2 48.2 42.6 Nonmetro Areas 5,822 1,178 1,157 2,006 642 44 4.7 5.6 8.0 3.6 6.2 9.9 ¹Includes skilled workers and unskilled workers. Does not include persons admitted under the Chinese Student Adjustment Act. ²Defined as Metropolitan Statistical Area. Source: Immigration and Naturalization Service, Statistics Division	1 9 9 5 recommendations
Chart 24. Intended Residence of Immigrants Admitted in Employment-Based Categories (by Leading States & Metropolitan Areas): FY 1994


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	managers bring their expertise and success abroad to their U.S. affiliate with the aim to help the latter grow, which often translates into significant employment of U.S. workers. Immigration policy must take into account the needs of such businesses for expedited and cost-effective movement of such personnel. n Encouraging entrepreneurial activities and other investment in the United States aimed at creation of jobs. Significant job creation for U.S. workers must be at the core of any immigration policy regarding entrepreneurs. The encouragement of investments in the U.S. and the actions of entrepreneurs also benefit the U.S. national interest by stimulating the economy and generating capital. n Providing a means of ensuring that U.S. workers are not displaced or otherwise adversely affected by the entry of foreign workers. Protection of U.S. workers from such adverse effects must be a key ingredient in any immigration policy. The Commission strongly believes that U.S. workers can compete with any workers in the world on a level playing field. Policies must assure such a level playing field. n Providing incentives or penalties to help ensure that employers in the U.S. engage in appropriate recruitment of American workers and contribute significantly to the training of the domestic U.S. workforce. Recruitment and training of U.S. workers also are major factors in a comprehensive immigration policy. Both incentives and penalties form a basic framework for ensuring that employers engage in both appropriate recruitment and significant training activities.

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The Commission recommends that the preferences for the admission of skill-based immigrants be reorganized to reflect two categories: those subject to a labor market test, which we would expect to be the norm; and those who, for significant, specific policy reasons should be exempt from such a labor market test. Labor market-tested categories require a demonstration that a business has a bona fide need for the skills of a foreign worker and cannot find a qualified U.S. worker or one who could be readily trained for the intended job. In general, the Commission has concluded that the less education and skill level a foreign worker possesses, the greater the concern regarding unfair competition for similarly situated U.S. workers. The Commission is recommending this reorganization because of two major problems in the current division of those immigrants who are exempt from and those who are subject to a labor market test. These problems are: n Overlaps in the current division. The second preference category for employment-based immigration in current law, applicable to "professionals with advanced degrees and aliens with exceptional ability," includes both individuals who are subject labor market testing and those exempt from it. Within this category, the Attorney General may, in the national interest, waive the job offer requirement under which an alien's service in the sciences, arts, professions, or business normally must be sought by an employer in the United States. n Definitions. There has been considerable debate about definitions used in the current categories, particularly in attempting to differentiate between aliens of "extraordinary ability" who are exempt from labor market tests and those of "exceptional ability" who are subject to labor market tests.			- -
		*The Commission recommends* *that the preferences* *for the admission of skill-based immigrants* *be reorganized* *to reflect two* *categories:* *those subject to a labor market test, which we would expect to be* *the norm; and those who, for significant, specific policy reasons should be exempt from such a labor market test.*


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	The Commission's recommendation is an attempt to overcome these inherent problems in the current system and to make clear and simple who should be subject to labor market testing and who should not. The Commission proposes that the level of skill-based immigrant admissions be established at 100,000 annually, and that immigration levels be authorized for a three to five year period in order to ensure that admission numbers are appropriate given demand in priority categories. The Commission arrived at a benchmark for skills-based admissions during the next three to five years by examining demand for visas in the employment categories over the past few years. Requests from employers averaged about 90,000 per year; our review of FY 1995 data indicate no increase during this past year. As shown in Chart 25, the Commission's recommendation of 100,000 skill-based admissions annually is 10 percent above current demand in order to allow room for growth within the three-to-five-year cycle. The Commission, in its recommendation of the two-category, skill-based immigration preference system (labor market-tested, and exempt from testing) considers the exempt admissions to have a higher priority than those subject to the labor market test requirements. Current usage of the proposed exempt categories is about 30,000 and for the labor market tested categories approximately 60,000. Under the Commission's proposal, exempt admissions would have priority over the others. Calculations could be done on a monthly basis to determine the number of nonexempt admissions permitted after the admission of labor market test exempt applicants. Exempt workers should include those individuals whose entry will generate economic growth and who hold no potential for undermining the employment prospects and remuneration of U.S. workers. The following individuals should be exempt: n Individuals at the very top of their chosen field whose extraordinary ability in the sciences, arts, education,

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Chart 25.
Skills-Based Immigration:
Categories and Admission Numbers

CURRENT LAW

CIR RECOMMENDATIONS

Categories

Usage

(FY 1994)

Categories

Admissions

(proposed)

21,053

14,432

46,269

7,946

444

90,134

LABOR MARKET TEST EXEMPT

Aliens with Extraordinary Ability

Multinational Executives and Managers

Entrepreneurs

Ministers and Religious Workers

(Limited to current usage, about 8,000)

LABOR MARKET TESTED

Professionals with Advanced Degrees

(Including professors and researchers

who do not meet the definition

of "extraordinary")

Professionals with Baccalaureate Degrees

Skilled Workers

(5 years specialized experience)

Up to 100,000

(current usage about 30,000)

100,000

less number admitted in exempt category

(current usage about 60,000)

100,000

FIRST PREFERENCE

Aliens with Extraordinary Ability

Outstanding Professors/Researchers

Multinational Executives and Managers

SECOND PREFERENCE

Professionals with Advanced Degrees

THIRD PREFERENCE

Skilled Workers

(2 years training/experience)

Professionals with Baccalaureate Degrees

FOURTH PREFERENCE

Ministers and Religious Workers

FIFTH PREFERENCE

Investors

(Entrepreneurs)

TOTAL

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	business, or athletics is demonstrated by sustained national or international acclaim and whose achievements have been recognized through extensive documentation, or individuals who have demonstrated the potential for extra- ordinary achievement in their chosen field through extensive documentation, including receipt of internationally- recognized prizes and the testimony of appropriate experts. The recommended change in this category is the addition of individuals demonstrating the potential for extraordinary achievement. For example, it would permit the entry of a young musician who wins a highly competitive student competition recognized by international experts as an important harbinger of future extraordinary achievement. The Commission believes that it is in the national interest to expedite the admission of not only those who have already demonstrated extraordinary ability, but also those who are clearly recognized among the few whose achievement will be extraordinary. Under current law, an alien with extraordinary ability is defined as one whose abilities have been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. The regulations further define extraordinary ability as a level of expertise indicating that the individual is one of a very small percentage who have risen to the very top of their field of endeavor. Aliens petitioning for admission under this category must submit evidence of having received a major, internationally-recognized prize, or at least three of the following other types of evidence: Documentation of the receipt of lesser nationally- or internationally-recognized awards;

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Documentation of membership in associations in the field for which the classification is sought that require outstanding achievement of their members; Published material in professional or major trade publications or other major media relating to the alien's work in the field; Evidence of participation as a judge of the work of others in the same or an allied field; Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; Evidence of authorship of scholarly articles in the field; Evidence of the display of work in the field at artistic exhibitions or showcases; Evidence of performance in a leading or critical role for organizations or establishments that have a distinguished reputation; Evidence of a high salary or other significantly high remuneration for services in relation to others in the field; Evidence of commercial successes in the performing arts as shown by box office receipts or record, cassette, compact disk, or video sales. Tough standards are used in determining whether the accomplishments presented under each of these meets the requirements of extraordinary ability. The Commission believes that the requirements should be difficult to meet and		- -


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	that the classification of extraordinary should apply only to the top individuals in their field. The current employment-based first preference category includes "outstanding" professors and researchers. An offer of employment, but no labor certification, is required for those who qualify. A separate set of criteria has been developed to distinguish "outstanding" from "extraordinary." The Commission recommends there be one test for all those who are at the very top of their fields. The "extraordinary ability" test adequately covers all such unique individuals and, thus, under the Commission recommendations, professors and researchers who qualify as extraordinary would continue to be exempt from labor market testing. The Commission recognizes that those individuals with extraordinary ability or who have demonstrated the potential for such extraordinary achievement are so rare that a labor market test would serve no practical purpose. Most observers agree that the national interest is very well served by the admission of such highly-skilled individuals. In each of the past three fiscal years, about 3,200 aliens obtained permanent residence under this provision, of whom some 1,250 to 1,300 were the principals admitted on the basis of their "extraordinary" achievement. In 1994, of the approximately 1,300 individuals with extraordinary ability admitted, almost 500 were new arrivals and 800 already were in the U.S. and adjusting from another status. n Managers and executives of international businesses. The Commission recognizes that it is in the national interest to allow international businesses to transfer their executives and managers from their foreign operations to locations in the United States on an expedited basis. A labor market test

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is not currently required for this category, nor would one be required under the Commission recommendations. This policy makes sense both as a matter of international economic positioning and because the employer is willing to go to considerable expense to transfer key personnel. The employer is in the best position to determine the business necessity of admitting the foreign executive or manager. Further, the ability to transfer managers and executives could be the determining factor in deciding to open a business operation in the United States that could create many jobs for U.S. workers. Executives are defined as individuals who: Direct the management of the organization or a major component or function of the organization; Establish the goals and policies of the organization, component or function; Exercise wide latitude in discretionary decision- making; and Receive only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization. Managers are defined as individuals who: Manage the organization or a department, subdivision, function, or component of the organization; Supervise and control the work of other supervisory, professional, or managerial employees or manage an		- -


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	essential function within the organization or a department or subdivision of the organization; If supervising other employees, have the authority to hire and fire or recommend those as well as other personnel actions, or, if not a supervisor, function at a senior level within the organization hierarchy or with respect to the function managed; and Exercise direction over the day-to-day operations of the activity or function for which the employee has authority. Individuals are not considered to be acting in a management or executive capacity merely on the basis of the number of employees supervised or directed or their performance of international staff functions. The Commission has heard of instances involving the establishment of business operations in the U.S. for the sole purpose of enabling the immigration of an otherwise unqualified person as a multinational executive or manager. While the Commission did not see evidence of widespread abuse, greater safeguards should be put in place to ensure that only bona fide international businesses benefit from this policy. Such safeguards could include a requirement that the business meet at least one or more of several tests, such as: number of employees; scale of business; number of countries in which operations are maintained; and number of years in business. Admissions of multinational executives or managers have increased from less than 1,500, plus family members in 1992 to almost 5,000, plus family members (or a total of about

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12,000) in 1994. Of the approximate 5,000 principals admitted in 1994, about 1,200 were new arrivals, and over 3,800 were adjusting from another status. n Entrepreneurs whose active investment in new commercial enterprises generate a significant number of jobs for American workers in the United States. This category was named the investor category when established by the Immigration Act of 1990. Although this category is in the employment-based track, it is not an "employment category" per se: qualification for the visa is not based on a job offered, but rather on the amount of the investment made and the number of jobs created. As such, no labor certification is currently required. This preference is now allotted 10,000 visas per year, with no spilldown numbers from unused visas in the higher employment-based preferences. The visa applicants must create full-time employment for at least ten U.S. workers⁸ for at least two years and must invest $1 million in a commercial enterprise.⁹ Of the 10,000 visas in the category, 3,000 are reserved for "targeted employment areas,"¹⁰ that is areas with a high rate of unemployment. In these targeted employment areas, the Attorney General may reduce the investment amount to $500,000. Conversely, in high employment metropolitan areas, the Attorney General may require an investment of up to $3 million.¹¹ The investment may be used to		- -




⁸U.S. workers includes citizens and aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States. ⁹Commercial enterprise includes any activity formed for the ongoing conduct of business, including a sole proprietorship, partnership (limited or general), holding company, joint venture, corporation, business trust, or other entity that is publicly or privately owned, ¹⁰A targeted employment area is defined by the INA to mean "a rural area or an area that has experienced high unemployment (of at least 150 percent of the national average rate)." ¹¹We understand than an invest exceeding $1 million has never been required.

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	create an original business, purchase an existing business and restructure or reorganize it to create a new commercial enterprise, or expand an existing business so that there is a 40 percent increase in the net worth or number of employees. An alien investor may also take over a troubled business (a business that has existed for at least two years and has incurred a net loss of 20 percent of the company's net worth) if this acquisition will save jobs. In such an instance, the alien investor does not have to create ten new jobs, but may show that the number of existing employees is, or will be, maintained at the preinvestment level. In addition, the investor must demonstrate that he or she is actively engaged in the management of the business. All investors initially are granted conditional Legal Permanent Resident [LPR] status for the first two years, after which the conditions may be removed. To have the conditional status removed, the investor must petition the Attorney General during the ninety days prior to the second anniversary of the investor's lawful admission for permanent residence. The petition must demonstrate that a commercial enterprise was established, the alien invested in or was actively in the process of investing the required capital, and that the alien sustained these actions throughout the residence in the U.S. A personal interview of the entrepreneur is also required. Upon a finding that the submitted facts are true, the Attorney General will remove the conditional basis of the alien's status as of the second anniversary date of the alien's lawful admission for permanent residence. Although only 444 (157 principals and 287 dependents) out of the allotment of 10,000 visas were used in fiscal year 1994, the Commission believes that the admission of entrepreneurs is in our national interest, offering potential for American

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economic growth and for job creation. In recommending the continuation of the admission of entrepreneurs who would be exempt from labor market tests, the Commission points out that such admissions should be carefully scrutinized to assure that the individuals are bona fide entrepreneurs. n A limited number of individuals ordained by a religious denomination and other religious workers who have carried on the religious vocation abroad during the two years immediately preceding the application for admission and who are sponsored by a religious denomination having a bona fide, nonprofit, religious organization in the United States. This category includes ministers of religion, professionals working in a religious vocation or occupation, and other workers in religious vocations or occupations who work for U.S. nonprofit religious organizations (as defined in § 501(c)(3) of the Internal Revenue Code). Under the revised INA § 101(a)(27)(C)(i), 8 USC § 1101(a)(27)(C)(i), religious workers must be members of "a religious denomination having a bona fide, nonprofit, religious organization in the United States." As defined by the INA, "Religious Occupation" relates to a traditional religious function. Examples include liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious health care facilities, and missionaries. This group does not include fundraisers or persons involved solely in the solicitation of donations. In contrast, a "religious vocation" means a calling to religious life evidenced by demonstration of commitment practiced in the religious denominations such as the taking of vows by, for example, nuns, monks, and religious brothers and sisters.		- -


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	To qualify as a minister, one must be ordained by a religious denomination and have carried on the vocation of minister during the two years immediately preceding the application for admission. The statute also provides for special immigrant status for individuals other than ministers who will work in a religious occupation or vocation for a religious organization in a professional or other capacity. Such religious workers must have carried on the religious occupation or vocation during the two-year period immediately preceding the petition for special immigrant status. The Commission recognizes the legitimate need of religious organizations for the admission of ordained practitioners and experienced religious workers. The Commission is concerned that the admission of some individuals to be employed as religious workers could have a detrimental effect on employment opportunities for U.S. workers. It is for this reason that the Commission recommends that, as a condition of being admitted, such workers have been so employed abroad for the two years immediately prior to the application. This would be a new requirement. The category under which such workers are currently admitted is that of Special Immigrants, or fourth preference. Of the 10,000 visas allocated to this category, ministers and religious workers accounted for the usage of almost 3,600 by principals and 4,400 by dependents in fiscal year 1994. Of the principals, approximately 2,200 were new arrivals and almost 1,400 were individuals already in the U.S. and adjusting their status. The remaining visas in this category are for other types of immigrants, including employees of the U.S. government abroad, retired employees of international orga

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nizations, and aliens serving in the armed forces of the United States. These individuals differ from the ministers and other religious workers in that they are not immigrating for purposes of a specific job. Their immigration is based on specific service previously rendered. The Commission does not believe that they should be considered as part of an employment-based immigration category. The Commission will consider these groups in its review of humanitarian and related issues. Labor market-tested foreign workers permitted to immigrate to the United States under these categories should include only those who have attained a baccalaureate or higher academic degree or those who are needed to fill jobs that require a high level of specific skills or experience above the entry or journeyman level. Categories that would require a test of the domestic labor market include: n Professionals with advanced degrees. This category admits professionals holding advanced degrees including professors and researchers who do not meet the test of extraordinary ability (as discussed above). The category does not include a second part of the current second preference, aliens "who, because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States." The Commission finds this language to be highly duplicative of the first priority, aliens of "extraordinary ability." To many observers, attempting to distinguish between extraordinary and exceptional ability requires nuanced distinctions that mean little in the real world. The Commission		- -


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	believes that immigration categories should be comprehensible to the general public. Qualified foreign professionals with advanced degrees, but who are not at the very top of their fields, should be admitted only on the basis of a labor market test. As discussed below, the burden placed on employers of these foreign professionals to demonstrate their bona fide need for the worker should not be as great as is the burden placed on those seeking to hire less skilled workers. While U.S. professionals with advanced degrees deserve a level playing field, it is not unreasonable for individuals of this caliber to compete with a global workforce. In 1994, approximately 6,800 (900 new arrivals and more than 5,800 adjusting status) foreign professionals with advanced degrees were admitted under this category. Of this total, approximately 2,000 were engineers, surveyors, and mapping scientists, approximately 1,000 were teachers, more than 800 were executive, administrative, and managerial personnel, more than 600 were natural scientists, and almost 600 were mathematical or computer scientists or in health diagnosing occupations.¹² In addition, more than 7,000 spouses and children of these individuals also were admitted. The Immigration and Nationality Act currently provides that the Attorney General may waive the job offer requirement when it is deemed to be in the national interest. This provision has been used, for example, for the admission of self-employed doctors who pledge to practice in an area of the country with a doctor shortage as defined by the Department of Health and Human Services. It also is used, how



	¹²INS uses these broad categories in coding occupations. More specific breakdowns are not available.

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ever, for admission of aliens for whom a pressing national interest is hard to define. Among those admitted have been a market research analyst, real estate investment firm manager, and a golf course designer, categories not normally considered "national interest." n Professionals with baccalaureate degrees and skilled workers with a minimum of five years of specialized work experience. The admission of entry-level professionals and skilled workers should be scrutinized strictly to ensure that they will have no adverse effect on similarly qualified U.S. workers. Some believe that U.S. workers graduating with baccalaureate degrees and that skilled laborers have a more difficult time entering their chosen occupations because of the presence of foreign workers. The Commission wants to be most protective of those U.S. workers who are most vulnerable to adverse effects of immigrant workers. For this reason, the Commission is recommending that the qualifications for the admission of skilled workers be a minimum of five years of specialized experience. Educational and experience requirements attach to the immigrant, not the job. However, determination that a worker is skilled, rather than unskilled, would be based on the number of years of training or education required to do the job (as defined in current law, those capable of performing skilled labor requiring at least two years of training or experience). The Department of Labor would no longer determine whether the job offered to someone with the degree or skill really requires the level of education or experience. Rather, employers, not bureaucrats, would make that decision. However, the employer will be expected to pay the prevailing wage for someone with the immigrant's level of education or experience. In other words, an employer could not hire some		- -


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	one with a doctorate degree but provide remuneration appropriate to someone with a baccalaureate degree. Similarly, an employer also could not hire someone with five years of experience in unskilled labor, claiming they were qualified for a job requiring a skilled worker, regardless of the pay offered. In 1994, approximately 7,700 professionals with baccalaureate degrees were admitted. Of the professionals with baccalaureate degrees, approximately 2,000 were new arrivals and almost 5,700 were adjusting status. Skilled worker admissions in 1994 were slightly more than 10,000. Of this number, approximately two-thirds were new arrivals, with the remainder adjusting status while in the U.S. The greatest number of the almost 18,000 professionals with baccalaureate degrees and of the skilled workers admitted were employed in health assessment and treating occupations (approximately 5,300), executive, administrative and managerial occupations (more than 2,400), service occupations (approximately 2,000), and as engineers, surveyors, and mapping scientists (more than 1,800). In addition, more than 28,000 spouses and children of such individuals were also admitted. *The Commission recommends the elimination of the admission of unskilled workers.* Under current law, this category includes not only truly unskilled workers, but also those with less than two years of training or experience. The current annual ceiling on admissions in this category is 10,000. In FY 1994, slightly more than 4,100 such workers were admitted, along with approximately 5,200 dependents. As of January 1995, there was a backlog of approximately 79,000 awaiting admission in this category.
*The Commission recommends* *the elimination of the admission of unskilled workers.*


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Unless there is another compelling interest, such as in the entry of nuclear families and refugees, it is not in the national interest to admit unskilled workers. Most economic research does not show that the admission of unskilled workers is harmful during times of a strong economy. However, at present, the U.S. economy is showing difficulty in absorbing disadvantaged workers. At the same time, efforts toward welfare reform suggest that safety nets no longer will be available or will be under severe pressure and perhaps hundreds of thousands of additional unskilled Americans will be entering the labor force. Under these conditions, the admission of unskilled workers cannot be justified. Unskilled workers constitute the most vulnerable group in the U.S. economy: those who are least able to compete for stable, well-paid jobs. While some unskilled immigrants take jobs that are unattractive to U.S. residents and may benefit certain employers, there is evidence that unskilled U.S. workers are affected adversely by the admission of unskilled foreign workers, either through displacement or wage depression. In his book Immigrants and the American City, Thomas Muller (1993) states, "There is no doubt that some immigrants take jobs that would otherwise go to natives. And the wages paid to unskilled workers can be depressed by an immigrant-fed labor surplus. Many aliens, meanwhile, take on such unwanted jobs as dishwasher and hotel maid." Many observers consider unskilled foreign workers to have a dis-proportionate adverse effect on minorities and recent permanent residents. For example, economist Vernon M. Briggs, Jr., (1995) pointed out at a Commission consultation that ". . . the flow of immigrants is disproportionately and significantly impacting the segment of the labor force having the greatest difficulty adjusting to the rapidly changing labor market conditions affecting the U.S. economy." He		- -


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		also stated that, ". . . a disproportionate number of the nation's native born black and Hispanic populations are concentrated in these same low skilled segments of the labor market . . ." Another economist, George J. Borjas (1993), summarizes the dilemma: "There is a substantial benefit associated with the immigration of unskilled workers: a relative abundance of cheap labor for American companies, and hence cheap prices for consumers. It is worth asking, however, if these benefits exceed the costs associated with lost employment opportunities for unskilled native workers and the increasing tax burden." *To provide greater flexibility and allow for market adjustments, the Commission recommends that skill-based visas not used in a fiscal year be carried over to the next year's skill-based numbers.* The Commission believes that a carryover of the unused, skill-based numbers would assist U.S. employers in the ability to remain competitive and to adjust better to changes in the global marketplace. This would enable American employers to be more flexible in planning how they will address projected staffing needs. U.S. employers also would be able to adjust to changes in economic conditions that give rise to the need for foreign workers. For example, unused visas from the beginning of the three-to-five-year period for which the Congress has authorized a specific number of skill-based visas could be used towards the end of such a period should an upswing in the economy creates the need for the admission of foreign workers. *The Commission recommends replacing the labor certification procedure with a more timely and effective labor market test.* The Commission is not satisfied with current labor certification procedures because they are neither timely enough to meet the needs of employers with a bona fide interest in hiring a foreign worker nor effective in protecting the interests of U.S. workers.
	*To provide* *greater* *flexibility* *and allow* *for market* *adjustments,* *the Commission recommends that skill-based visas not used in a fiscal year be carried over to* *the next year's skill-based* *numbers.*

*The Commission recommends* *replacing the* *labor certification procedure with a more timely and effective labor market test.*


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Under current policy, most employment-based immigrants are prohibited from entering the United States to perform labor unless the Secretary of Labor certifies that there is a shortage of workers to perform such labor and that the employment of the alien will not adversely affect wages and working conditions of U.S. workers similarly employed. The Employment and Training Administration [ETA] in the Labor Department has jurisdiction over labor certifications. Immigrants seeking admission in the employment-based second and third preferences are required to obtain a labor certification as a prerequisite to obtaining an immigrant visa. The labor certification requirement in the second preference category may be waived by the Attorney General if a waiver is deemed to be in the national interest. To facilitate the processing of labor certifications, the Secretary of Labor has established two schedules, A and B, with predetermined findings for specific occupations. Schedule A is a list of occupations and occupational categories in which an individual labor certification is not required because the Secretary has made a blanket determination that the employment of aliens in the listed occupations will not affect the United States labor market adversely. The Schedule A labor certification application is submitted to INS with the visa petition and INS makes the determination as to whether the applicant is Schedule A eligible. Prior to IMMACT, Schedule A listed four occupations: Group I, physical therapists and nurses; Group II, aliens of exceptional ability in the sciences or arts (except for aliens in the performing arts); Group III, religious occupational workers; and Group IV, intracompany transferees. IMMACT reclassifies the former Group III, religious workers, as special immigrants, employment-based fourth, for which no labor certification is required. Similarly, the prior Group IV, intracompany transferees, may now qualify as employment-based priority workers, "multinational executive[s] and manager[s]," also exempt from labor certification.		- -


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	Schedule B is a list of occupations in which there has been a blanket determination that the employment of aliens in the occupations would affect the United States labor market adversely. These occupations that cannot be certified are primarily unskilled jobs requiring little or no education or experience. Employers may request a Schedule B waiver in isolated instances. The occupation listing on the Schedule B may indicate that there are shortages of U.S. workers in large areas of the U.S., but availability of U.S. workers in a specific state or locale can be ascertained by inquiring with the state employment service office. All other employment-based immigrants are subject to the labor certification requirement and must file for individual labor certification. First, an employer must file an application with the State Employment Service Agency [SESA] serving the place of employment. The application must: include a job offer that describes the job; state any special requirements for performing the job (including education and experience requirements); offer the prevailing wage (or within 5 percent of it) for the job in the local community; and specify clearly that the job is open to U.S. workers. The employer must run an advertisement in a local newspaper of general distribution, or, for more specialized jobs, in an appropriate trade or professional publication. Applicants for the job are referred to the SESA office, which in turn refers qualified applicants to the employer. Notice of the job offer also must be provided to bargaining representatives, if any, or posted in the place of employment. Generally, the employer has forty-five days to contact the applicants and report the results of its recruitment to the SESA. An employer can reject a U.S. worker only for lawful, job-related reasons. An employer cannot reject a U.S. worker who meets the basic requirements of the job because an alien is better qualified. The application and results of the recruitment are forwarded to an ETA Certifying Officer in the appropriate regional office. The official

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reviews the application, job offer, and recruitment results and determines if the requirements of labor certification have been met. IMMACT added a provision permitting interested persons to complain to the ETA office about any application for labor certification. If there is a question, the official issues a Notice of Findings and offers the employer an opportunity to amend the application or rebut the findings. If the application is then denied, the denial may be appealed to the Board of Alien Labor Certification Appeals [BALCA], a panel of DOL Administrative Law Judges. BALCA's decision is final. Approved labor certification applications, along with a visa petition, are then filed with the Immigration and Naturalization Service [INS]. The petition is reviewed to determine the applicant's eligibility for admission and, if eligible, under which preference. The current labor certification system is very resource intensive and not very cost effective given the relatively small numbers involved (about 25,000 principals admitted in 1994 required certifications). Almost two-thirds of these applications are approved. The federal government's cost of the labor certification system is estimated to be about $60 million in 1995. Some observers argue that the system does little to obtain employment for U.S. workers, thereby failing in its intent to protect U.S. workers. Employers often define jobs narrowly for two strategic purposes: first, to bolster an employer's claim that there are no American workers able and available to perform the work; second, to tailor the job to a particular foreign applicant, typically one who is already working for the employer on a temporary visa or unlawfully. Surprisingly, the current system includes no enforcement mechanisms and associated penalties for employers who reject qualified U.S. workers in the recruitment process. The current certification system also has evoked many employer complaints about processing delays and inordinate paperwork requirements. Some also argue that its costs are not warranted because		- -


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	the worker, on obtaining permanent residence, is free to change jobs whereupon adverse or positive effects may be greater than in the case for which he or she is certified. At a Commission consultation on legal immigration, H. Ronald Klasko (1995), Chairman, Immigration Law Group, Dechert Price & Rhoads offered the following comment on the labor certification system: ". . . there must be some expeditious method for employers to obtain certification for needed workers. I can tell you that right now, the Labor Department in New York is making the decision as to whether there were available workers two years ago for an application that was filed two years ago. In New Jersey, it may be a year and a half. That doesn't make sense. We must have an expeditious system." Mr. Klasko further stated that: Employers. . . . hire the best people they can get. The test should be consistent with that. . . . Labor certification practices should be consistent with business realities. What we've just talked about. Minimum requirements. The whole idea of post filling recruitment. You have somebody on the job. The person's there. You may choose one out of the ten people who are on temporary visas to apply for a green card. You've made your decision. But then you advertise for a job that's filled. And you're required by law to make sure that no one knows that the job is really filled. U.S. workers end up being used as guinea pigs in this test because they don't know that there is someone on the job. U.S. employers must be the final arbiter of their real requirements. If the requirements are questioned, the employer must support the requirements by documenting that they are reasonable. But what we have now is a system where you go back and forth and

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back and forth with the state office as to what the state office says their book says the real requirements for your job are. That doesn't fit into reality.

Recognizing limitations in the current procedures, the Department of Labor has begun an effort to reengineer the permanent alien certification process. In the July 17, 1995 Federal Register, DOL requested comments, stating that the goals of the effort are to make fundamental changes and refinements that will: "(1) streamline the process; (2) save resources; (3) improve effectiveness; and (4) better serve customers." The stated rationale for the reengineering is that, "The labor certification process . . . has been criticized as being complicated and time consuming. It can take up to two years or more to complete the process; requires substantial government resources to administer; and is reportedly costly and burdensome to employers."

These concerns about the labor certification are far from recent developments. In U.S. Immigration Policy and the National Interest, the staff report of the Select Commission on Immigration and Refugee Policy, (U.S. Select Commission 1981b) similar observations were made about the process:

The current labor certification process was ruled out by the Commission on the basis of testimony

and analysis. In the words of its administrator at a hearing before the Select Commission, the current labor certification process was described as "time-consuming, costly, and aggravating to all concerned." Further, the current process involves individual case review and testing of the labor market for every principal applicant applying for an immigrant visa where labor certification is required (almost all thir

Skill-Based Immigration

Chart 22. Occupations of Principal Immigrants Admitted in Employment-Based Categories: FY 1994

Chart 23. Leading Countries of Birth of Immigrants Admitted in Employment-Based Categories: FY 1994 (Ranked by Total)

Chart 24. Intended Residence of Immigrants Admitted in Employment-Based Categories (by Leading States & Metropolitan Areas): FY 1994

Chart 25. Skills-Based Immigration: Categories and Admission Numbers

Chart 22.
Occupations of Principal Immigrants Admitted in
Employment-Based Categories: FY 1994

Chart 23.
Leading Countries of Birth of Immigrants Admitted in Employment-Based Categories: FY 1994 (Ranked by Total)

Chart 24.
Intended Residence of Immigrants Admitted in Employment-Based Categories (by Leading States & Metropolitan Areas): FY 1994

Chart 25.
Skills-Based Immigration:
Categories and Admission Numbers