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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.

Do We Still Need PERM Labor Certification? An Analysis of the Merits-Based Points System in BSEOIMA

By Gary Endelman and Cyrus D. Mehta

We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States.  One of the most  transformative changes that BSEOIMA will bring, if enacted, is a merits-based points system. For previous blogs on BSEOIMA, we refer readers to Workable or Unworkable: The H-1B and L-1 Provisions in BSEOIMA, s. 744 and Some Preliminary Observations Regarding The Proposed Border Security, Economic Opportunity And Immigration Modernization Act.

There will be a two track merits-based system under BSEOIMA.  The first track points-based merits system will have 120,000 to 250,000 merit-based visas. The second track non-points merits system applies to long term residents, and this track does not have a cap. By creating a points system, Congress has voted “No Confidence” in the labor certification program as a way to provide US employers with the talent they and the economy needs. This lack of confidence is also evident in other parts of BSEOIMA where STEM graduates with advanced degrees can be directly sponsored for green cards by employers without going through the arduous labor certification process.

Perhaps, it has also dawned on Congress about the futility of the labor market test that is conducted on behalf of a foreign worker for green card sponsorship who is already hired by the employer.  A good faith test of the labor market even if conducted by a well-intentioned employer will likely fail, at least from the Department of Labor’s (DOL) view, if the foreign worker is already in the position. The statutory basis for labor certifications, which in its current form is known as PERM (Program Electronic Review Management), is provided in INA §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. Out of this simple mandate in the INA, the DOL has built a complex regulatory structure that has delegated to the employer to conduct a good faith text of the US labor market. While in the real world an employer selects the best workers based both on an objective and subjective set of criteria, the DOL requires employers to demonstrate that only minimally qualified workers are available for the position. The labor certification process neither compels nor incentivizes an employer to hire the best workers, but it also does not result in the creation of US jobs. If a minimally qualified worker applies for the position, all that happens is that the labor certification cannot be filed.

The first track points-based system moves away radically from the labor certification system as it allows a foreign national to apply for permanent residency without a specific employer’s sponsorship. It  will take effect five years after the enactment of BSEOIMA. During  the first four years from enactment,  visas shall be made available to the backlogged EB-3 preferences. From the fifth year onwards,  50 % of visas shall be allocated to applicants who get the highest number of points under Tier 1. The remaining 50% of visas shall be allocated to applicants who get the highest number of points under Tier 2.

Under Tier 1, points will be assigned as follows:

A. Education
  • 15 points for a doctoral degree
  • 10 points for a master’s degree
  • 5 points for a bachelor’s degree from an institution of higher education in the US
B.    Employment Experience
No more than 20 points can be allocated as follows:
  • 3 points for each year an alien has been lawfully employed in a zone 5 occupation
  • 2 points for each year the alien has been lawfully employed in a zone 4 occupation
C. Employment Related To Education
An alien who is in the US and is employed full time or has an offer of full time employment in a field related to the alien’s education
  • In a zone 5 occupation shall be allocated 10 points
  • In a zone 4 occupation shall be allo0cated 8 points

D. Entrepreneurship

An alien who is an entrepreneur in a business that employs at least 2 employees in a zone 4 or zone 5 occupations shall be allocated 10 points

E. High Demand Occupation

An alien who is employed full-time or has an offer of full-time employment in a high demand 1 shall be allocated 10 points

F. Civic Involvement

An alien who has attested that he or she has engaged in  significant amount of community service shall be allocated 2 points

G. English Language

An alien who received a score of 80 or more on the Test of English as a Foreign Language, or an equivalent score on similar test, shall be allocated 10 points

H. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the United States or who is more than 31 years of age and is the married son or married daughter of a citizen of the United States shall be allocated 10 points

I. Age

An alien who is:
  • between 18 and 24 years of age shall be allocated 8 points
  • between 25 and 32 years of age shall be allocated 6 points
  • between 33 and 37 years of age shall be allocated 4 points

J. Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

Under Tier 2, points will be assigned as follows:

A. Employment Experience

An alien shall be allocated 2 points for each year the alien has been lawfully employed in the US, for a total of not more than 20 points

B. Special Employment Criteria

An alien who is employed full-time, or has an offer of full-time employment
  • in a high demand tier 2 occupation shall be allocated 10 points
  • in a zone 1 occupation or zone 2 occupation shall be allocated 10 points

C. Caregiver

An alien who is or has been a primary caregiver shall be allocated 10 points

D. Exceptional Employment Record

An alien who has a record of exceptional employment shall be allocated 10 points

E. Civic Involvement

An alien who has demonstrated significant civil involvement shall be allocated 2 points

F. English Language

An alien who received a TOEFL score or an equivalent score on a similar test:

  • 75 or more shall be allocated 10 points
  • More than 54 and less than 75 shall be allocated 5 points

G. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the US or is over the age of 31 and is the married son or married daughter of a citizen of the US shall be allocated 10 points

H. Age

An alien who is:

  • Between 18 and 24 years of age shall be allocated 8 points
  • Between 25 and 32 years of age shall be allocated 6 points
  • Between 33 and 37 years of age shall be allocated 4 points

I.     Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

There is also a second merit based track system that does not depend upon points beginning October 1, 2014. The second merits non-points system cleverly acts as a safety valve to reduce the existing backlogs in the system, and also ensures that we do not experience the same horrendous backlogs as we see under the existing system. People whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis. Those who have been lawfully present for not less than 10 years will also be eligible for this non-points based side of the merit-based visa system. Registered Provisional Immigrants (RPIs) will be able to adjust status based on 10 years of lawful presence under this second merit non-points track system.

Labor certification will undoubtedly survive even after BSEOIMA as beneficiaries under the EB-2 and EB-3 preferences still need an employer to obtain labor certification. Moreover, not everyone will be able to make it under the merits system, such as ethnic cooks for example, who may not even need to speak English but are still vital for the success of the restaurant.  The merits based points system will compliment labor certification if BSEOIMA is enacted. Congress, and probably DOL itself has realized, as the authors have previously noted in their prior article, that the very notion of a “good faith” recruitment seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in PERM do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.

As the PERM labor certification appears to wither in BSEOIMA, giving way to a merits based points system, one can also learn from the Canadian points system where the points based system first started. A points based system may not necessarily be ideal. It could potentially encourage PhDs to win the highest points only to immigrate and not find jobs that are commensurate to their skills. Moreover, gaining the requisite points under specific criteria  are not an end unto themselves, and  that their effectiveness cannot be measured apart from the overall ability of the new immigrant to integrate into the economy and culture of the receiving nation . It  is this that ultimately will determine if the immigrant will be put into a position to succeed for themselves and their adopted home.

A Maclean’s article on the failure of the Canadian points system is revealing. According to a study conducted by the Organization for Economic Co-Operation and Development (OECD), only 60% of Canadian immigrants found jobs in their chosen areas of specialization compared to an OECD average of 71%; in matching up skills with employment, Canada ranked near the bottom, worse than Estonia, Italy, Spain and Greece.

The labor certification system seeks to  match the employer’s demand with the foreign national’s skills. Even here, however, it seems clear that PERM is not the best way for employers to express their interest in potential new hires. An independent assessment of language and credentials after which applicants can be placed in a pool for employers to draw from may be a promising third way between a free-standing points system (Canada) and immigration linked to specific job offers (USA). This “expression of interest” as applied in Australia and New Zealand avoids the frustrations of the Canadian approach and the economic illiteracy of PERM.

The frustrations of the Canadian model suggest strongly that recruitment of even the most skilled knowledge workers cannot be divorced from domestic demand.  Not only has this produced  long waiting lines in Canada but the bias towards highly educate STEM professionals has deprived those industries which are booming, such as the oil fields in Alberta, of the blue collar talent that they so vitally need. According to a New York Times article that was written when the points based system was first proposed in the failed 2007 bill:

Part of the backlog in Canada can be traced to a provision in the Canadian system that allows highly skilled foreigners to apply to immigrate even if they  do not have a job offer. Similarly, the Senate bill would not require merit system applicants to have job offers in the United States , although it would grant additional points to those who do. Without an employment requirement , Canada has been deluged with applications.

According to a Huffington Post article, the chronic underemployment of advanced degree professionals in Canada underscores the need for employers  to play an active role in the immigration selection process. Since 2004, the Provincial Nominee Program (PNP) where provinces sponsor immigrants to designated job vacancies has expanded six fold. In Australia, 81% of immigrants obtained employment in their chosen disciplines within six months. A pure points system not anchored to what employers are looking for will produce lower income and higher unemployment. Once again, according to the Maclean’s article, a comparison with Canada is instructive:

In contrast to the Canadian experience, immigrants to the US have virtually closed the income gap with American-born workers. In 1980, US immigrants earned about 80 per cent of American-born workers, a gap that was roughly the same in Canada. By 2011, US immigrants earned 93% of native-born workers, while foreign-born college graduates now out-earn their American counterparts. During the last recession, the unemployment rate for foreign-born university grads in Canada topped out at 8.4 per cent in 2010( Among those who lived in the country less than 5 years, it was more than 14 per cent.) By comparison, unemployment among foreign-born graduates in the US was 4.4 per cent.

BSEOIMA  keeps intact the traditional labor certification system under the employment-based second and third preferences, but also introduces a merits based points and non-points system. Within the merits-based points systems, plenty of points will be given to those who have jobs, offers of employment, and even US-based employment in the area of the alien’s education,  but it does not require the employer to file a “pointless” labor certification (no pun intended!). Under the non-points merits based visa system, long term residents waiting in the pipeline for a green card can avail of visas, thus creating a safety valve in case of backlogs. BSEOIMA thus provides several pathways for foreign nationals to obtain permanent residence without obsessively focusing on labor certification.  The goal we seek is not to replace PERM with a points system but to find an alternative to both that is ethical, transparent and realistic providing the economy with the human capital it needs to grow but doing so in a manner that allows immigrants to be productive while respecting the legitimate interests of US workers.

We now have a new world.  The merit based system in the bill provides this missing alternative. BSEOIMA is a transitional document and the number of options to obtain green card status without labor certification is bound to grow in future years.  The virtue of BSEOIMA is that it is hybrid system combining a points system with employer selection. This offers the best of both worlds, and we refer readers to a Migration Policy study that thoughtfully provides models for such hybrid systems. As the global competition for top talent in science and technology intensifies, in order for the United States to attract and retain the best and the brightest, PERM will increasingly be relegated to a less important place, although it may still be important for certain occupations who cannot avail of the new pathways to permanent residency. PERM will not disappear but it will never again enjoy the dominance of old.  It is this third way that will define America’s immigration policy in the 21st century.

HOW VIABLE IS THE POINTS SYSTEM?

By Felicia Zeidman

Editor’s Note: While we will soon be deliberating about the merits of various proposals to comprehensively reform the US immigration system, the Canadian-based points system may be proposed as it was part of earlier comprehensive immigration reform proposals, especially the 2007 compromise Senate bill. Under existing US immigration law, an employer generally sponsors a foreign national based on a need and is required to test the US labor market through labor certification.  This week, guest blogger Felicia Zeidman will examine Canada’s points assessment and explore whether it can fit into a US immigration reform proposal. One of the criticisms of the points system is that it  fails to match the prospective immigrant to an employer, and there are cases of many Ph.Ds ending up driving taxis. The question, however, is whether employability should be the sole determining factor or whether it should assess the immigrant’s overall ability to successfully adapt in the new country?  Ms. Zeidman is a U.S. and Canadian-licensed lawyer practicing from New York and New Jersey, and can be reached at  646 789 2224 or in Canada at 416 459 8958, email Felicia_Zeidman@visaserve.com

Canada maintains immigration legislation with an objective to pursue the social, cultural and economic benefits of immigration. The method of achieving this goal is consistently being tweaked by policy-makers and legislators and subject to collected data that will shape the type of immigration Canada will seek in any particular period. While Canadians might argue about the assessment of data and what conclusions should be drawn from it for the creation of current policy, the background ethos of the nation includes a strong gratitude to the waves of immigration that arrived and successfully built sectors of industry while influencing all manner of next-generation development. These background factors in policy-making will not strike Americans as particularly unique and are grounded in common 19th and 20th century experiences in the U.S. and Canada. This article will discuss the ‘points test’ of the Canadian immigration procedure, the likes of which is not utilized in U.S. immigration practice and provides an illustration of how procedure, if not policy, between the two heavily industrialized nation-neighbours is in fact different.

Canada has utilized a points system for the partial assessment of certain classes of applicants in its recent immigration programs. A points system breaks down what are perceived to be the most important of the applicant’s abilities so that the his/her overall likelihood of success – both for his/her own integration and the meeting Canada’s needs – can be determined. The more points an applicant gets, the stronger his/her application. The system awards point for age, with more points awarded for youthful workers; it awards points for education; it awards points for language ability; work experience; a job offer; and similar experiences of a spouse. Most recently the points system was an integrated part of the federal skilled worker program, building on the requirement that a worker be in one of 29 particular occupations, with a year of experience in the profession. The federal skilled worker program awarded permanent residency before the individual even landed on Canadian soil, a significant benefit which will be referenced later in this article.

In addition to the professional experience requirements of the federal skilled worker program, the applicant had to score 67 points on the test out of a possible 100, without any one element of the test absolutely requiring achievement, and officer discretion was available should an applicant score under 67 points. The 67-point rule made some difficult-to-accomplish test elements (getting a job offer, for instance, which garnered 10 points) possible to abrogate by achieving high points in another part (perhaps taking all 24 points available for language ability in English and French). Some parts of the test were in practice nearly impossible to abrogate, as points for education and age, for example, were such a large percentage of the overall test.

It should be noted the points system is likely being revamped as is Canada’s federal skilled worker program which encourages the immigration of certain professionals. Over the last decade, the program has gone from relying entirely on a points assessment to requirements that the applicant also be experienced in a certain profession. The federal skilled worker program has been altered several times over the last few years, and this year is no different as the program has been ‘closed for renovation’ since July 2012 with an opening date of May 2013. Announcements from the government have clarified that the revamped federal skilled worker program which opens in May will include, amongst others, a renewed emphasis on youthful workers, language ability of the applicant and spouse, and in-Canada experience. It is unknown whether the points test will continue to be a central assessment tool but the concept of stressing certain factors does appear to remain.

A U.S. Immigration lawyer would label the Canadian system outlined above as ‘self-sponsorship’. This is because the U.S. System does not have a program that includes a points and professions test in order to find an individual immigration-worthy; an individual seeking to immigrate to the U.S. without relying on family sponsorship is most likely to rely upon very high-level expertise or in-country, ongoing work experience. (The overall procedural distinctions are for another article). It can be argued that the Canadian system, where it relies on points, assesses a more raw potential in applicants: age; education; language; experience. How do we ferret out elements of the U.S. System that might include assessments similar to a points test? We look at the elements of the points test as they are embedded in an individual’s capacity for and achievement of ongoing employment. In other words, insofar as professional experience and education (awarding many points on the Canadian test) has made a potential immigrant employable, he/she can proceed down the employment and perhaps the permanent residency paths of the United States.

The Canadian assessment is larger-scale. In the Canadian assessment, being employable is a significant element of the points test; one needs to consider only that it is part of the federal skilled worker program assessment. However, the federal skilled worker is awarded permanent residency before the individual lands on Canadian soil, so it makes sense to integrate raw potential for overall success in and contributions likely to Canada. For example, the spouse’s adaptability factor may not impact job success, but it is part of the points test because it impacts overall family adaptability. An age assessment of under 50 will not be important for many potential jobs, but it is a significant part of the points test because it will impact on Canada’s future work force and the test is meant to bring in younger workers.

This is the interesting part about the integration of a points test. It doesn’t have to be strictly related to any one class of immigration and can be part of a much larger policy. Although many would argue that employment and employability are the most critical factor in an immigrant, and there are dozens of Canadian immigration programs which are indeed employment-driven, the points test takes into elements outside of success at any one job and seeks to bring an immigrant with overall likelihood of success and contribution capacity. The question for policy-makers is whether or not this larger assessment fits in with the country’s immigration practice.