Immigration Policy

The 1986 Immigration Reform and Control Act (IRCA) prohibited employers from hiring undocumented aliens and imposed penalties. The 1990 Immigration Act provided for a 160% increase of admissions for employment-based immigration. Employment-based immigration is divided into five subpreferences. The first is for those with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers. The second is for professionals who because of exceptional ability will substantially benefit the economy, culture, education, or welfare of the United States (licensed nurses and physical therapists, for example, because of chronic shortages in those fields). The third is for those workers, skilled and unskilled, in fields in which there is a shortage of U.S. workers. Certification by the Department of Labor is required for admission of those in the second and third categories, and all but those of exceptional ability must have a U.S. employer petition for them. The fourth preference is for special immigrants, such as religious workers and former longtime employees of the U.S. government. The fifth preference provides for immigration of investors whose investments will create a minimum of 10 jobs in the United States.

There is now a global market for talented individuals from around the world, so one question we now face is not whether there is someone in the United States who can do the job but whether someone from outside the United States can, in the estimation of potential employers, do the job better. This bears a distinct analogy to the issue of outsourcing. The process has generated a whole body of highly technical and complicated law. In addition, employers must pay at least the prevailing wage. This has led to controversies in determining the prevailing wage or what types of jobs are substantially comparable with the one being offered. This regulation brings into play the ...