With Immigration, Congress Shouldn't Set Wages

When Congress returns from recess on September 9, sensible immigration reform should be a priority. The House Judiciary Committee has voted out bills to make it easier for foreign skilled workers and agricultural workers to obtain visas.

These may not be perfect bills. The language on prevailing wages needs removal or modification, for example. But they are a step in the right direction. It would be an improvement if the House passed them and if the Senate adopted similar language.

It is difficult to get legal visas for people whose skills are needed in America and who want to come to work in America. The process can take years. Foreign students in the United States who have jobs offers from American employers have to go back to their countries, at substantial expense, to get work visas, before returning to America to begin employment.

Rep. Darrell Issa (R-CA) introduced H.R. 2131, the SKILLS Visa Act on May 23, 2013 with 20 cosponsors, notably House Judiciary Chairman Bob Goodlatte (R-VA). The bill was approved by the House Judiciary Committee on June 27, 2013.

Chairman Goodlatte has sponsored the Agricultural Guestworker Act, known as the AG Act. This makes it easier for agricultural workers to get visas to come to America to work and then return to their home countries. The AG Act was voted out of the House Judiciary Committee on June 19.

The SKILLS Act is the longer and more complicated of the two bills. It shifts 55,000 visas from the green card lottery to high-skilled immigrants, defined as foreign graduates holding doctorates in STEM fields, or medical, dentistry or veterinary science programs from U.S. higher education institutions. Qualifying fields include computer sciences, engineering, biological and biomedical sciences, and mathematics and statistics.

The bill grants an additional 10,000 visas annually to foreign entrepreneurs whose startups raise sufficient capital and intend to create at least five full-time jobs for U.S. workers who are not immediate family members.

The bill eliminates the country-based cap for immigrants seeking employment-based visas. One absurdity of current law is that only 7 percent of the total employment visas can go to nationals of a single country, making wait times for immigrants from high-skilled, high-population countries like China and India extremely long. The bill increases the corresponding cap for family-sponsored immigration from 7 percent to 15 percent.

The bill eliminated green cards for siblings of U.S. citizens, but increases the number of green cards for spouses and children of permanent residents by 25,000 from 114,200 to 139,200.

The H-1B skilled non-immigrant visa cap is increased from the current level of 65,000 to 155,000, and the allotment for advanced degree holders increases from 20,000 to 40,000. Anti-fraud provisions like prevailing wage requirements are strengthened. The bill also permits spouses of H-IB visa holders to work in the United States.

One flaw in the bill, similar to language in the Senate bill, is that it expands prevailing wage requirements and applies them to new groups of workers, such as holders of workers temporarily in the United States through their company and to Canadian and Mexican professionals.

These prevailing wage provisions encourage illegal immigration by setting wages for some foreign workers above their true wage. They should be eliminated before the bill is voted into law.

The Issa bill states that "the Secretary of Labor shall make available to employers a governmental survey to determine the prevailing wage for each occupational classification by metropolitan statistical area in the United States."

The Labor Department has no reliable way of determining prevailing wages, but the wage estimates produced under the new bill are inflated for entry-level workers, excluding them from being hired legally under the bill.

This is because the Labor Secretary is supposed to provide three prevailing wage measures to employers: the average of the lowest two-thirds of wages surveyed,
the average of all wages surveyed, and the average of the highest two-thirds of wages surveyed.

With the prevailing wage defined as an average, it is biased upwards by senior workers. Entry-level or junior American workers will always be paid less than foreign workers.

So, if the bill became law, employers would be limited to hiring more senior and experienced foreign workers. Younger immigrants would simply not be hired. This makes no sense because America needs young, bright immigrants.

The AG Act requires agricultural workers to be paid prevailing wages, but these wages are not averages. They are the wages paid to workers in the same occupation.

The bill replaces the current agricultural H-2A visa with a new H-2C nonimmigrant visa for a temporary agricultural worker. Employers have to file requests with the Department of Agriculture in order to get the visas. Undocumented workers who are in America illegally as of April 25, 2013, can transition to H-2C status. Spouses and children cannot accompany temporary agricultural workers.

Our immigration system is a mess that serves no one, least of all we Americans. The House bills have the potential to be giant leaps in the right direction. A simple amendment to remove all references to wage-setting by government officials, commonly known as prevailing wage language, would transform these House bills into potent instruments to move America forward. The challenge is not whether the House will pass these bills; the challenge is whether the Senate will accept an improved and superior House bill without the prevailing wage language.