How Binding Are DOL FAQs?

As PERM practitioners, we are all familiar with Department of Labor’s (DOL) Frequently Asked Questions (FAQs). Going as far back as 2005, the year of the inception of the PERM program, there have been various rounds of DOL FAQs on a wide range of topics including on how to file or withdraw a PERM application; how to prepare a PERM Recruitment Report; on the best practices for appeals to the Board of Alien Labor Certification Appeals (BALCA); on what constitutes a familial relationship; on Supervised Recruitment; and on and on. PERM practitioners rely on these FAQs to explain DOL’s requirements and expectations in the preparation and filing of PERM applications. These FAQs can even be used to remind the DOL of its own requirements when an erroneous PERM denial has been issued. But, at the end of the day, how binding is a DOL FAQ? Can the DOL deny a PERM application solely because the instruction in an FAQ was not followed? This issue was discussed in the following cases.

In Matter of Guess?, Inc. 2015-PER-00504 (June 28, 2017) the Employer filed a PERM application seeking to sponsor the foreign national for the offered position of Senior Financial Analyst. The Employer listed the job requirements as a Bachelor’s degree in Finance and 60 months of experience in the job offered. In Box. H.14 of the Form 9089, the Employer further stated that CPA licensure is required. However, when the Employer listed the foreign national’s qualifications in Sections J and K of the Form 9089, there was no indication that the foreign national was a licensed CPA. The Certifying Officer (CO) denied the application because the foreign national’s qualifications listed on the Form 9089 failed to demonstrate that he met the requirements for the offered position, specifically CPA licensure. The CO noted that Section K of the Form 9089 instructs employers to list all jobs the sponsored foreign national has held as well as any other experience that qualifies the foreign national for the job opportunity.  The CO further pointed out that the Office of Foreign Labor Certifications (OFLC) had published guidance through an FAQ on July 28, 2014, prior to the Employer’s submission of the Form 9089. To read the FAQ, click here and scroll to “Alien Experience.” The FAQ states:

When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker’s qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. If not listed elsewhere, the list of certificates, licenses, professional coursework, or other credentials held by the foreign worker and required in order to perform the job opportunity, should be entered after all jobs held in the past three years are listed, under Question 9, “Job Details (duties performed, use of tools, machines, equipment, etc.)”

Since the Employer did not list on the Form 9089 that the foreign national possessed a CPA license, as instructed by the FAQ, the CO concluded that denial of the Form 9089 application was authorized by 20 C.F.R. §656.17(i)(1) which states that the “job requirements, as described, must represent the employer’s minimum requirements for the job opportunity.” Essentially, the CO found that by including a CPA licensure requirement the Employer had indicated requirements which exceeded the foreign national’s qualifications.

The Employer requested reconsideration of the CO’s denial and submitted evidence of the foreign national’s CPA license. The Employer also argued that Section K of the Form 9089 only allows for entry of the foreign national’s work experience and that the CPA license could not have been submitted online. The Employer also argued that since the CPA license existed prior to the submission of the PERM application and since the CO did not issue an audit to request a copy, then the CO ought to accept proof of the CPA license submitted as part of the request for reconsideration in accordance with BALCA’s decision in Denzil Gunnels, 2010-PER-00628 (Nov. 16, 2010) which we previously blogged about here.

The CO upheld the denial and stated that:

[A]n FAQ is sufficient to adequately apprise the general public of changes in the Department of Labor, Office of Foreign Labor Certification policy or processing of Permanent Employment Certification Applications (PERM). Therefore, in accordance with the Department’s FAQ published on July 28, 2014, for applications filed on or after July 28, 2014, an employer seeking Permanent Employment Certification must demonstrate the foreign worker identified on the application meets all license, certificate, and requirements listed on the ETA Form 9089, at the time the application is submitted for processing.

The Employer filed a request for Board review and argued that (1) the July 28, 2014 FAQ does not cure the deficiencies in the Form 9089 and its instructions. (2) that the DOL cannot establish a substantive new rule that applications will summarily be denied for failure to list a foreign national’s licenses because the FAQ was not promulgated through the notice and comment process required to comport with due process in rulemaking; (3) that the DOL posts and removes FAQs without notice and in an inexplicable manner and that FAQs can be hard to find; and (4) that the CO erred in refusing to consider the copy of the CPA license submitted with the Employer’s request for reconsideration.

BALCA acknowledged that its panels have consistently upheld denials of certification where the employer ignored the clear directive in the Form 9089 instructions to list “all” of the foreign national’s qualifying experience. But BALCA also acknowledged that is has also ruled that applications cannot be denied based solely on an employer’s failure to include information on the Form 9089 where it is not apparent how that information could be included on the application and cited, among other cases, Smartzip Analytics, 2016-PER-00695 (Nov. 9, 2016) and Apple Inc., 2011-PER-01669 (Jan. 20, 2015) which I previously blogged about here.

BALCA found that the July 28, 2014 FAQ was an attempt by the OFLC to correct the deficiency in the Form 9089 and its instructions in regard to listing special skills, certificates, licenses and professional coursework that are not included in the required recitation of the foreign national’s qualifying job experience and that no changes have been made to the Form 9089 to address the deficiency. BALCA noted that neither the Form 9089 nor its instructions say anything about including special skills, certificates, licenses and professional coursework that are not included in the listing of the foreign national’s qualifying job experience. BALCA also found that the FAQ was silent regarding the consequences an employer may face for non-compliance with the FAQ guidance. Finally, BALCA held that the FAQ is not an appropriate and legally effective method of correcting shortcomings in the Form 9089 and its instructions and it was therefore arbitrary and inconsistent with the requirements of due process and fundamental fairness for the CO to deny the Employer’s PERM application based on a failure to state on the Form 9089 that the foreign national has a CPA license. BALCA found that the CO should have asked the Employer to submit supplementary information/documentation through the audit procedure. In the absence of an audit request, BALCA found that the CO ought to have accepted the Employer submission of a copy of the CPA license as part of its request for reconsideration.

Similarly, in Solar Turbines, Inc., 2016-PER-00025 (June 2, 2017), the CO denied the Form 9089 application, without an audit, because the Form 9089 did not establish that the foreign national possessed the skills required to perform the job. Specifically, the Form 9089 indicated that the position required academic or industry experience in the full use and application of “heat transfer, Finite Element Analysis, drafting/CAD (Pro-E), or applied thermodynamics” and the Employer did not list these skills in Section K of the Form 9089. The Employer sought reconsideration supplying the missing information and contending that there was no space on the application form to include such information. However, the CO reaffirmed the denial noting that an FAQ issued in July 2014 explained how the information could have been added to the form. BALCA reversed the denial concluding that the CO had erred in not considering the information submitted along with reconsideration request since the employer had not had a prior opportunity to submit the information. 20 C.F.R. §656.24(g)(2)(ii). BALCA agreed with the Employer that the limitations of the Form 9089 and its instructions “effectively prevented the presentation of the documentary evidence concerning the Alien’s specific qualifications to the CO.”

BALCA also spoke on FAQs in Matter of Arbin Corporation, 2013-PER-00052 (Jun, 29, 2017). In that case, after review of the Employer’s audit response, the CO denied the Form 9089 application based on a determination that the recruitment advertisements in a newspaper and on a job search website did not provide a description of the job vacancy specific enough to apprise U.S. workers of the job opportunity as required by 20 C.F.R. § 656.17(f)(3). Specifically, the CO found that the Employer’s newspaper and job search advertisements failed to mention “delivery of products” as described in the job duties listed on the Form 9089. The CO characterized “delivery of products” as a travel requirement, and he stated that had the Employer disclosed this travel requirement “to U.S. workers for the same job description which was provided to the foreign worker, potential U.S. applicants may have been interested in a company which would afford them the opportunity to travel.”

The Employer acknowledged that its advertisements did not refer to “delivery of products” and instead contained a “shortened” description of job duties. In addition, the Employer argued that if the CO believed that a hidden travel element should be disclosed then the Employer had done so by virtue of the fact that its advertisements indicated that the job requires the applicant to “maintain and repair Arbin battery testing systems” and also by virtue of the job title of “Customer Support Engineer.” These two things, the Employer argued, fully advised potential job applicants that this position requires a certain level of travel. Finally, the Employer argued that its shortened description of the job opportunity in the advertisements complied with the requirements of Section 656.17(f) as clarified in FAQ guidance published on the OFLC website that advertisements are not required to enumerate “every job duty, job requirement, and condition of employment” and that “[a]n advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.” To read the FAQ, click here and scroll to “Advertisement Content.”

BALCA ultimately held that the Employer’s reliance on the FAQ is misplaced. BALCA cited the case of CSI International, Inc., 2012-PER-00614 (Nov. 4, 2015) in finding that the FAQ is a merely an expansion on the requirement at Section 656.17(f)(3) that advertisements “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought….” And the fact that Section 656.17(f)(3) does not require great detail about the job opportunity does not mean that an employer is exempt from including the content requirements directed by Section 656.17(f)(4) which mandates that the Employer apprise applicants of travel requirements.

The subject of FAQs also arose in Matter of Oracle America, Inc., 2015-PER-00308 (May 4, 2017), a case in which the CO denied the PERM application, after audit, based on the Employer’s failure to properly notify and consider workers it had laid off in the occupation as required by 20 CFR §656.17(k)(1). In its audit response, regarding how it notified and considered laid off workers, the Employer stated that laid-off U.S. workers had been given a notice in their termination packet with instructions on how to view and apply to any and all labor certification job opportunities that the Employer is offering. BALCA held that §656.17(k) requires specific notice to laid off workers of a job opportunity for which the employer has sought permanent labor certification. The Employer raised the subject of an FAQ (to read the FAQ, click here and scroll to “Recruitment Report”) which it argued presented an alternative to the requirement that a specific notice be provided to laid-off workers. However, BALCA held that the Employer had not complied with the guidance in the FAQ but rather, had provided the type of notification expressly rejected in the FAQ, that is, notice that simply informs the laid-off worker to monitor the Employer’s website for future openings and inviting the worker, if interested, to apply for those openings.

To what extent can the DOL utilize its FAQs as a substitute for actual rulemaking? In these cases we see BALCA find for the Employer and hold that an FAQ does not hold the power and force of the regulations. In other cases, we see BALCA indicate that the FAQ provided the Employer with means by which to comply with the existing regulations or that the FAQ represented an expansion of the existing regulations rather than a new directive. So where does that leave us? Can PERM FAQs be ignored? Certainly not. PERM FAQs have always been and will continue to be extremely important and useful to provide PERM practitioners with much needed clarity on the DOL’s requirements and expectations in the preparation and submission of PERM applications. It would serve no practical purpose to ignore FAQs only to potentially face the hurdle of a denial and an appeal to BALCA. However, to the extent that the DOL wishes to rely on one of its FAQs to create new rules and ascribe to them the force of the regulations then the DOL ought to be reminded that FAQs cannot be used to change the regulations and the issuance of an FAQ does not rise to the level of a substantive new rule because an FAQ is not promulgated through the notice and comment process required to comport with due process in rulemaking.

Watson v. United States: The Second Circuit Tells U.S. Citizens Improperly Detained by ICE to File Their Claims for Damages While Their Immigration Court Case is Ongoing

In its July 31, 2017, opinion in Watson v. United States, a panel of the U.S. Court of Appeals for the Second Circuit, over the dissent of Chief Judge Robert A. Katzmann, declared untimely the claim of false imprisonment brought by a U.S. citizen, Davino Watson, who had been detained by immigration authorities for nearly three years. A district court had awarded Mr. Watson compensation for the initial portion of this detention, although not for the portion of his detention when he was being prosecuted negligently in proceedings before an immigration judge (on the theory that malicious prosecution under New York law requires actual malice rather than mere negligence). According to the Second Circuit panel majority, however, Mr. Watson’s claim of false imprisonment needed to have been brought soon after the proceedings against him began, or at least within two years of the time he was first incorrectly found to be a removable noncitizen by an immigration judge.  The implication is that many people with plausible claims of U.S. citizenship who are detained by immigration authorities should file an administrative claim regarding their detention, and likely sue in federal court regarding that detention, even before their immigration proceedings are over.

Davino Watson had been born in Jamaica to unmarried parents, and had come to the United States as a lawful permanent resident (LPR) in 1998, at the age of thirteen, to live with his father.  Watson’s father then became a U.S. citizen on September 17, 2002, when Watson was only seventeen years old.  Watson also became a U.S. citizen at that time under section 320(a) of the Immigration and Nationality Act (INA), 8 U.S.C. §1431(a), which bestows U.S. citizenship on the child of a U.S. citizen, under the age of eighteen, who is “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” INA §320(a)(3), 8 U.S.C. §1431(a)(3).

After Watson pleaded guilty in New York State court in 2007 to sale of cocaine, agents of Immigration and Customs Enforcement (ICE), as the Second Circuit recounted, “investigated his citizenship status to determine whether he was deportable.” This investigation, however, was, as the panel majority acknowledged, “beset by errors.”  That is putting it mildly.  Watson told ICE he was a U.S. citizen during his very first interview, and gave them the phone number of his father and stepmother, but the ICE agents never called that number, even though the same number had been listed in Watson’s pre-sentence report.  ICE did make some attempt to look up Watson’s parents in a government database, but it appears to have been an extremely slipshod attempt.  Instead of Watson’s father, Hopeton Ulando Watson, who lived in New York and whom Watson had told them was married, ICE found records for an unmarried man named Hopeton Livingston Watson, who lived in Connecticut, “did not have a child named Davino, and became a lawful permanent resident three years after the date of Davino Watson’s lawful permanent residency.”  (ICE also confused Watson’s mother, Clare Watson, with a “Calrie Dale Watson” in their database, although Calrie Dale Watson was married not to anyone with a name remotely resembling Hopeton Watson but rather  to a man named Gabriel Miller.)   This despite the fact that Davino Watson’s own file contained an affidavit from his father, submitted in connection with Davino’s application for lawful permanent residence, which “contained Hopeton Ulando Watson’s date of birth, alien number, and social security number, none of which matched the corresponding file data for Hopeton Livingston Watson.”  Relying on the (irrelevant) fact that Hopeton Livingston Watson was not a U.S. citizen, a supervisory ICE officer drafted a Notice to Appear, and another supervisor, the district court found, “mindlessly signed” it and forwarded it to ICE officers who took Watson into custody.

Watson was detained by ICE for nineteen days before his Notice to Appear was filed with the Immigration Court, and “he first appeared before an immigration judge about a month afterward.”  In total, that is, Watson was detained for forty-eight days before he even saw an immigration judge.  He again asserted his U.S. citizenship, and filed an application for a certificate of citizenship with U.S. Citizenship and Immigration Services (USCIS).

Watson’s application for a certificate of citizenship was denied on the basis of the then-recent decision of the Board of Immigration Appeals (BIA) in Matter of Hines, 24 I&N Dec. 544 (BIA 2008), which had held that a child born in Jamaica could only have his paternity established “by legitimation” if the child’s parents married. Because being “legitimated” is a prerequisite for someone born out of wedlock to qualify, with respect to their father, as a “child” for purposes of INA §320(a) under the definition of “child” in INA §101(c)(1), 8 U.S.C. §1101(c)(1), USCIS determined based on Hines that Davino Watson did not qualify as his father’s “child” and so could not have acquired citizenship under INA §320. The Immigration Judge agreed, and ordered Watson’s removal on November 13, 2008.

The application of Matter of Hines to deny Watson’s claim to U.S. citizenship was problematic for a number of reasons, and the BIA ultimately concluded that Watson was indeed a U.S. citizen, although as the Second Circuit panel majority noted, “[t]he government’s precise views on the application of Hines to Watson’s case are somewhat obscure.” Matter of Hines may, as ICE suggested in a memorandum and Chief Judge Katzmann emphasized in his dissent, never have been meant to apply retroactively to those like Watson who would have been citizens under the previous precedent of Matter of Clahar, 18 I&N Dec. 1 (BIA 1981). The general rule is that citizenship is acquired based on the law in effect when the last of the conditions for it is met—which, in Watson’s case, would have been in 2002 when his father naturalized, after Clahar was decided and long before Hines was decided.  In addition, the Hines definition of “paternity by legitimation” for purposes of a different INA provision may not, as the BIA indicated in an unpublished opinion in Watson’s case, have applied to the word “legitimated” in INA §101(c)(1). After Watson’s case had been resolved, the BIA partly overruled Matter of Hines in a published opinion, Matter of Cross, 26 I&N Dec. 485 (BIA 2015), which reinstated and reaffirmed Matter of Clahar and confirmed that Hines should not be applied to prevent a child born to unmarried parents in Jamaica from qualifying as a “child” under INA §101(c)(1) and §320(a). Rather, all children born or residing in Jamaica after the 1976 effective date of the Jamaican Status of Children Act, which gave equal rights to children born out of wedlock, are considered legitimated for purposes of INA §101(c)(1) and §320(a).

The Second Circuit remanded Watson’s removal case to the BIA for clarification regarding the legitimation issue on May 31, 2011, in Watson v. Holder, 643 F.3d 367 (2d Cir. 2011). Watson was released from ICE custody in November 2011, evidently on the basis of his claim to U.S. citizenship, although he was released “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.”  His removal proceedings formally continued for more than a year after that, until the BIA ruled that he was a citizen and terminated his removal proceedings.  He then finally received a certificate of citizenship on November 26, 2013.

Having been recognized as a U.S. citizen, Mr. Watson sought compensation for his legally unjustified detention by filing an administrative claim for damages with the Department of Homeland Security (DHS) on October 30, 2013, under the Federal Tort Claims Act (FTCA).  After that claim was denied, he brought a lawsuit in the U.S. District Court for the Eastern District of New York on October 31, 2014.  While the district court rejected his malicious-prosecution claim because, as noted above, such claims under New York law (incorporated by reference through the FTCA) require actual malice and not mere negligence of the sort exhibited in Mr. Watson’s case by ICE, the district court found that Mr. Watson had a meritorious claim for false imprisonment regarding the initial period of his detention.  That claim was subject to a two-year statute of limitations, but the district court found that this statute of limitations had not begun to run until Watson received his certificate of citizenship in November 2013, or in the alternative that Watson’s claim was saved by equitable tolling of the statute of limitations.  The Second Circuit panel majority, however, over the vehement dissent of Chief Judge Katzmann, disagreed on both points.

The two-year clock for Watson to file his claim, the Second Circuit held, began at the latest in November 2008, when the Immigration Judge ordered Watson’s removal. At that point, if not earlier, the false imprisonment ended, the Second Circuit held, because Watson was held “pursuant to legal process.”  This was more than two years before Watson filed his claim in 2011.

The Second Circuit panel majority also overruled the district judge’s finding that Watson was entitled to equitable tolling of the limitations period.  According to the majority, Watson had not shown that “some extraordinary circumstance stood in his way” and prevented him from timely making his claim.  The district court had granted equitable tolling, as the majority explained, “based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and ‘most significantly,’ the fact that government officials told Watson that he was not a U.S. citizen.” The Second Circuit panel majority found that “[n]one of these reasons justifies equitable tolling.”  Given Watson’s ability to fight his case in immigration court, the panel majority held, he could not show that his depression or his having been repeatedly told he was not a U.S. citizen prevented him from bringing an FTCA claim.  And because Watson’s lack of education and legal training were “an entirely common state of affairs,” they were not sufficiently extraordinary to justify equitable tolling, even though Watson had not had legal counsel during most of his time in detention.

Chief Judge Katzmann, in his dissent, disagreed with both the panel majority’s ruling regarding the initiation of “legal process” in immigration court as beginning the running of the statute of limitations on Watson’s false-imprisonment claim, and the majority’s decision to overturn the grant of equitable tolling.  On the “legal process” point, Chief Judge Katzmann objected to the significance that the panel majority attached to a hearing process in which the detained person was not entitled to, and did not have, the assistance of counsel.  In the criminal context, the procedural landmarks upon which “legal process” has been held to commence and cut off a false-imprisonment claim are also times at which a criminal defendant is entitled to the assistance of counsel.  Here, on the other hand, the government was arguing that Watson’s false-imprisonment claim should end because of a legal proceeding at which he, alone and without an attorney, bore the burden of making a complex argument regarding the significance of legitimation.  Chief Judge Katzmann observed that “if there is any case where meaningful legal process cannot be said to have begun without the assistance of counsel, this, surely, is one.”  As for equitable tolling, Chief Judge Katzmann found that the district judge had not abused his discretion in holding it to be warranted.  As he concluded:

I would hope that nothing about Watson’s 1,273‐day detention can be said to have been “an entirely common state of affairs.” Maj. Op. at 14–15. If it were, we should all be deeply troubled. An American citizen was detained on the basis of a “grossly negligent” investigation that “led to [his] wrongful detention.” The government, the IJ, and the BIA all misapplied clear precedents of law, which, coupled with Watson’s lack of counsel until mid‐2011, resulted in his three‐and-a‐half‐year detention. Watson had an eleventh‐grade education, suffered from depression as a result of his detention, and was repeatedly told by ICE officials, government lawyers, the IJ, and the BIA that he was not a U.S. citizen and that he would be removed from the country he had known as his home from the time he was 14 years old. Given all this, I cannot conclude that the “legal process” Watson experienced should extirpate his legal claims, nor can I draw the conclusion that the district court abused its discretion in determining that Watson’s case merited equitable tolling.

Watson, slip op. at 18 (Katzmann, C.J., dissenting) (internal citations omitted).

As a practical matter, it seems to this author unfair to fault Mr. Watson for not filing an administrative claim sooner.  Chief Judge Katzmann appears to me to have the better of the argument with the panel majority regarding the impropriety of overturning the district judge’s fact-specific finding of equitable tolling under these circumstances.  Beyond that, however, the Second Circuit’s decision has created a legal situation that DHS may come to regret.

According to the Second Circuit’s decision in Watson, it appears that any immigration detainee who believes that he or she is a U.S. citizen and has been improperly detained should commence the process of filing an FTCA claim, and if necessary suing the government in federal court, before the removal proceedings against him or her are resolved.  At least in the Second Circuit, the government cannot object in response to such a filing that the claim cannot be brought until the removal proceedings are terminated.  The Second Circuit majority in Watson has rejected that analysis, which the district court had followed based on an analogy to Heck v. Humphrey, 512 U.S. 477 (1994) (requiring that a criminal conviction be set aside or declared invalid in some way before one can seek damages relating to an unconstitutional conviction or sentence). Rather, according to Watson, the government must defend the FTCA claim, and the related lawsuit, in parallel with the removal proceedings.

Moreover, a federal court judgment in the FTCA action declaring that the detainee was a citizen and thus unlawfully detained should, it seems, have preclusive effect on the removal proceedings. Thus, a claimed U.S. citizen would not have to wait for the judicial review of this citizenship claim that would be available under 8 U.S.C. §1252(b)(5) after the Immigration Court and BIA had addressed his case. Rather, by pursuing the FTCA action, it would be possible to obtain judicial review of the U.S. citizenship claim before the removal proceedings had otherwise run their course.

This earlier judicial attention to a U.S. citizenship claim might also have the salutary effect of provoking a quicker release of the detainee from custody. Faced with possible liability on the part of the United States, one would hope that an Assistant U.S. Attorney or an attorney from the Department of Justice’s Office of Immigration Litigation might intervene with DHS to get a detainee released more quickly.

Ultimately, the troubling decision in Watson may still result in more lost redress for unjustly imprisoned U.S. citizens, who lacked legal counsel, than it does additional opportunities for counseled detainees.  However, there is a possible silver lining to the cloud, and it is one the government may find itself displeased to have created.

RAISE Act Will Hurt Immigrants, Americans and America

Last week, President Trump lent full throated support towards the Reforming American Immigration for a Strong Economy Act (RAISE Act), which will dramatically alter the immigration system in the United States the way we know it. Although this bill, proposed by Republican Senators Cotton and Purdue has little chance of moving through Congress, it has drawn significant attention as it intends to redefine America’s immigration experience over the last two centuries.

The RAISE Act deemphasizes immigration through the family, and instead creates a points system based on skills. A successful applicant must get at least 30 points.  The bill insists on English language proficiency, and allocates 0 to 12 points based on test scores. Those with US professional degrees or a doctorate in a STEM field will get the maximum of 13 points for education. By contrast, a high school diploma gets 1 point, a foreign bachelor’s degree gets 5 points, a US bachelor’s degree gets 6 points, a foreign master’s degree in a STEM field will get 7 points, a US master’s degree in a STEM field will get 8 points and a foreign professional degree or doctorate in a STEM field will get 10 points.

The younger one is the more points he or she will get, and those within the 26-30 years age range will get the maximum of 10 points. 25 big points are given for extraordinary achievement, but you must have won a Nobel prize or gained comparable recognition in a field of scientific or social scientific study. There are no comparable points for extraordinary achievement in the arts or business fields. For sportspeople, you will get 15 points if you won an Olympic medal or placed first in an international sporting event in which the best athletes in an Olympic sport were represented. Those with job offers, based on how much the offered wage will be over the median salary in the state where the job is located, will also get points ranging from 5 to 13. Investment in a new commercial enterprise at $1,350,000 will fetch 6 points; and an investment of $1, 800,000 will fetch 12 points.

The bill eliminates the diversity lottery program, or green card lottery, which awards 50,000 visas annually through a lottery from countries with low rates of immigration to the United States. It caps the number of refugees granted permanent visas to the United States at 50,000 per year. Most devastatingly, the RAISE Act eliminates all the family preferences, and only maintains the preferences for spouses and minor children of permanent residents. Parents of US citizens will no longer be treated as immediate relatives, but can come on renewable temporary visas. The definition of a minor child is changed from 21 to 18. The worldwide family quota is cut from 480,000 to 88,000 minus the number of people paroled into the United States who have not departed within 365 days and have not received a green card within 2 years of getting parole status. Pending family based petitions are voided except for those that are scheduled to get green cards within one year and entry into the United States must happen within one year of the bill’s enactment.

Most pro-immigration reform advocates have not supported this bill, except for some notable  exceptions like Vivek Wadhwa who wrote Why As An Immigrant, I am Not Outraged By Trump’s Immigration Proposal. On the other hand, restrictionist immigration organizations such as FAIR and Numbers USA have readily embraced the bill. The reason for their ready embrace is that the RAISE Act drastically cuts immigration levels, and the points system will prove to be unworkable.  Steven Miller, a senior White House aide and one of the architects of RAISE Act and the travel ban, famously got into a heated exchange with CNN’s Jim Acosta. Acosta asked Miller if the bill would violate the spirit of the poem New Colossus, inscribed at the base the Statue of Liberty, which includes the famous line: “Give me your tired, your poor, Your huddled masses yearning to breathe free.” Miller retorted that the statue is “a symbol of American liberty lighting the world” and the “the poem that you were referring to was added later and was not part of the original Statue of Liberty”, and then went on to combatively quiz Acosta on what level of immigration would violate his “Statue of Liberty law of the land”.  The RAISE Act also appears to be a xenophobe’s delight as its main aim is to restrict immigration levels. Mr. Wadhwa, who is not a xenophobe and is pro-immigrant, approaches his embrace of the bill differently by arguing that the US immigration system needs to attract skilled talent on green cards, rather than temporary H-1B visas, so that they can start the next generation of great companies in the United States rather than depart the United States under our current imperfect system and start companies in competitor nations like China.

Wadhwa certainly has a point. We need to reform our immigration system to keep skilled talent, but not at the expense of decimating everything else, including the values represented by the Statute of Liberty. Most economists credibly argue that more immigrants create more jobs, and that restricting immigrants will not necessarily create more jobs for American workers. The RAISE Act keeps intact the annual 140,000 limit for employment-based immigrants that was set in the Immigration Act of 1990, in addition to drastically restricting all other visa categories. Although per country limits are abolished, derivative family members are counted as part of the 140,000 limit which will eat into the pie.  It provides no pathway to permanent residence for lower skilled but essential workers who support the American economy. Despite conflicts of interest, even President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. These are for temporary H-2B visas with no green cards at the end of their temporary stay.

Worse still, RAISE Act is cruel to the hundreds of thousands of beneficiaries of approved I-140 petitions from India and China who are caught in the crushing employment-based second and third preference employment backlogs. The bill does not grandfather them, implying that they will need to re-apply under the new points system after waiting for over a decade. Since they have gotten older by 10 or more years, they will lose out on maximum points for age. If their approved I-140 immigrant visa petitions are based on non-STEM degrees, even if they have PhDs, they will not get the same points for education as those with master’s degrees in STEM fields. Even people caught in the China EB-5 backlog will unduly suffer. When they reapply, they will not get any points on the $500,000 investments they have already made as the investment threshold in the RAISE Act that will fetch points have been substantially increased, and they will also likely lose out on English skills.  One can also imagine the backlogs that will be created when hundreds of thousands of in the existing employment-based preferences apply under the points system of the RAISE Act. People will be re-applying over and over again.  The RAISE Act points system, which seems to be a bastardized version of the Canadian and Australian point systems, could lead to other absurd results. If you are 46-50, have English scores in the 6th or 7th decile, have a foreign bachelor’s degree, and have a lucrative job offer, you are flatly disqualified from coming under this system.  Even if you’re age 41-45, and so get 4 points for age rather than 2, you would have only 28 points total and be completely ineligible.  No wonder that FAIR and Numbers USA love the RAISE Act. Mr. Wadhwa ought to rethink his position.

Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with STEM degree will. If a famous restaurant specializing in North Indian cuisine cannot hire a good tandoori chef on a permanent basis, then the restaurant will not be able to prosper and hire additional restaurant managers, catering supervisors and bartenders from among the US workforce. America, therefore, needs both STEM graduates and Tandoor chefs! Moreover, a nation needs both social justice and good economics; indeed, social justice is the best economics. Therefore, cutting refugee admissions is not a good idea.  A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the United States with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or would have benefitted under a hypothetical RAISE Act points system.  His parents were able to come into the United States based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today. The insistence on learning English before one arrives is also not necessary. Indeed, culture through dance, food and music is best preserved through the language of the country where it emanates, and America will be that much more enriched if it embraces the authentic cultures of immigrants who in good time will learn English – surely, their descendants will speak English.

We should have immigration reform that admits more immigrants rather than less, as David Bier has cogently argued in a recent NY Times Op-Ed. A points system is fine if it compliments other existing immigrant visa categories. A good example was S. 744 that was passed by the Senate in 2013 in a bipartisan manner that comprehensively reformed the immigration system by expanding pathways to permanent residence, and also included a merits system. The RAISE Act does not do this and  is a terrible idea, and furthers Trump’s America First agenda, which like his proposed wall on the Mexico-US border, is based on dubious economics and has not yet proven to have any merit.  While the RAISE Act bans low skilled workers, it may also attract PhDs who may drive Ubers in America. This has been the experience in Canada under the points system, where highly qualified people have immigrated without being matched with jobs. Unlike Mr. Wadhwa,  I am justifiably outraged as an immigrant by Trump’s immigration proposal.