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Wednesday, November 22, 2017

On August 2, Senators Tom Cotton and David Perdue, with the support of President Trump, introduced the Reforming American Immigration for a Strong Economy (RAISE) Act, which seeks to substantially reform the current U.S. immigration system and replace it with a merits-based system that ignores the benefits of family unity and the needs of U.S. employers.

Background

According to the U.S. Department of Homeland Security (DHS), in 2015, approximately 1,051,031 individuals became lawful permanent residents of the United States, with 65 percent securing their status based on a family relationship (parent, child, spouse or sibling) to a U.S. citizen or lawful permanent resident and only 140,000 individuals securing lawful permanent resident status through employment sponsorship. Employment-based preferences consist of five categories of workers (and their spouses and children): EB-1 (e.g., individuals of extraordinary ability and outstanding professors and researchers); EB-2 (professionals with advanced degrees or aliens of exceptional ability and individuals whose work is in the national interest of the United States); EB-3 (skilled workers or professionals without advanced degrees and unskilled workers); EB-4 (“special” immigrants such as ministers, religious workers and employees of the U.S. government abroad); and EB-5 (employment creation immigrants or “investors”).

In addition to eliminating the Diversity Lottery and limiting the number of refugees admitted to the United States to no more than 50,000 per year, the RAISE Act seeks to reduce lawful permanent residency based on family relationships by reducing the number of visas available and restricting the types of familial relationships that would qualify for sponsorship. In addition, the RAISE Act seeks to limit employment-based immigration, not by number, but by requiring experience and education that is extremely restrictive.

Family-Based Immigration

The RAISE Act would eliminate all family-based immigration except for spouses and minor children (under the age of 18) of U.S. citizens and lawful permanent residents. U.S. citizens and lawful permanent residents could no longer sponsor their parents or siblings for immigrant petitions. Moreover, the Act would reduce the number of family-based immigrants to 88,000 per year.

The Act would also create a temporary nonimmigrant visa (“W” visa) for parents of U.S. citizens, enabling them to enter the United States for an initial period of five years (with extensions available), but prohibiting them from working or receiving any public benefits during their stay. To qualify for the W visa, certain requirements must be met: the U.S. citizen must be at least 21 years old, residing in the United States, and be responsible for the parent’s support while the parent is in the United States; and the U.S. citizen must provide evidence that he or she has arranged for the parent’s health insurance coverage, at no cost to the parent, for the duration of the parent’s stay in the United States.

Employment-Based Immigration

The RAISE Act would eliminate the current employment-based immigration system and create one that is based on points or merit. The Act would allocate 140,000 immigrant visas based on an individual’s age, education, English proficiency and offered salary in the United States and would require an offer of employment from a U.S. employer, and proof that the prospective immigrant has secured health insurance, either through the U.S. employer or by posting a bond to purchase the health insurance.

Younger applicants would be allocated greater points under the RAISE Act than older applicants. For example, the Act allocates greater points for individuals who are between the ages of 22 to 30 years of age. Once individuals are 31 years of age or older, they are allocated fewer points.

In addition, individuals with advanced degrees in specific fields of study would receive greater points. Under the RAISE Act, points are allocated based on the highest educational degree, favoring a doctorate degree over a professional degree, over a master’s degree, over a bachelor’s degree and over a high school degree. While foreign degrees are acceptable, higher points are allocated for degrees earned from U.S. colleges and universities. The Act strictly defines “professional degree” as including only a master’s of business administration, Doctor of Jurisprudence or Doctor of Medicine. Moreover, a bachelor’s degree in any field will receive minimal points; however, master’s and doctorate degrees only receive points if they are in a STEM (science, technology, engineering and mathematics) field. There are no points allocated for multiple degrees, or for master’s and doctoral degrees that are not in a STEM field, business administration, law or medicine.

The RAISE Act also allocates points based on a prospective immigrant’s mastery of the English language as determined by an accredited exam, such as the TOEFL or IELTS.

The Act also allocates points for extraordinary achievement, but only in the sciences and athletics. Points are allocated if the individual is a Nobel Laureate or received comparable recognition in the field of scientific or social scientific research. In addition, points are allocated if, in the eight years prior to the submission of an application, the individual earned an individual Olympic medal or placed first in an international sporting event where the majority of the best athletes in an Olympic sport were represented. There are no points allocated for individuals who distinguish themselves in the arts, entertainment, modeling, business or education.

Finally, the RAISE Act allocates greater points for individuals who are offered a salary that is at least 150 percent of the median household income in the state where the individual will be employed and to individuals who invest between $1.35 and $1.80 million in business in the United States and maintain the investment for a period in excess of one year.

Conclusion

The type of immigration reform proposed by the RAISE Act is based on the false assumption that the current number of legal immigrants entering the United States harms the economy. According media reports, in showing support for the Act on August 2, President Trump stated, “This legislation demonstrates our compassion for struggling American families who deserve an immigration system that puts their needs first and that puts America first.” In making such a statement, however, President Trump seems to be ignoring the fact that many Americans are in fact immigrants who have made enormous contributions to our society. Moreover, our current immigration system has resulted in business development, community improvement and innovation.

The RAISE Act’s points-based system ignores the demands of U.S. employers for seasonal and lower-skilled workers upon whom the U.S. economy relies, as well as artists and entertainers. This will result in labor shortages that will force U.S. employers to turn to other options, such as moving their operations abroad, so that they have the labor force their businesses require.

The supporters of the RAISE Act also ignore the failure of other points- or merit-based immigration systems. For example, the points-based system in Australia and Canada, which President Trump has often lauded as models for U.S. immigration reform have not been successful. The system in Canada has been criticized for forcing highly skilled immigrants to take low-skilled jobs in new fields because possessing advanced degrees and experience did not guarantee finding a job in their field.

While we agree that the immigration system needs to be reformed, the President should continue to value the ideals that are fundamental to American life—family, economic opportunities and the abundance of positive benefits that foreign nationals bring to the country, especially in terms of the arts, entertainment, research, science, innovation and entrepreneurship. Immigration reform that can make America greater balances the priorities of securing employment for U.S. workers along with business success and family unity, as these are not competing interests, nor are they mutually exclusive.

By Michael J. Wildes

 Michael J. Wildes is the managing partner of Wildes and Weinberg, P.C. Mr. Wildes is a former federal prosecutor with the United States Attorney’s Office in Brooklyn (1989-1993). He has testified on Capitol Hill in connection with anti-terrorism legislation. He is an adjunct professor at the Benjamin N. Cardozo School of Law in New York and teaches business immigration law. From 2004 through 2010, Mr. Wildes was also the Mayor of Englewood, where he resides. Wildes and Weinberg, P.C. has offices in New York, New Jersey, Florida and Los Angeles by appointment only. If you would like to contact Michael Wildes please email him at [email protected] and visit the firm’s website at  www.wildeslaw.com.