Desperately Seeking Visas

Even as words fly fast and furious before tomorrow's Iowa caucuses, no federal immigration reform law is likely to be enacted in the politically charged atmosphere of 2008, a presidential election year.

This failure will make a difference to the economy, America's future technological capacity, and to millions of people — employers and foreigners who want to fill vacant jobs here.

With some states, notably Arizona, legislating immigration requirements of their own, a state-by-state patchwork of disparate rules may be unfolding.

If congress cannot pass major legislation that would address all immigration issues, including how to treat the 12 million undocumented foreigners living here now, it could improve the functioning of American labor markets with a much narrower action. It could authorize the Department of Labor to decide on its own the number of work permits and temporary visas to be issued every calendar quarter.

American businesses regularly want to hire more workers than the domestic labor market supplies. The Labor Department annually issues thousands of certificates for foreign workers who seek to fill the gap. A small fraction of these workers actually receive visas, because congressional immigration quotas restrict the number of foreign workers — both permanent and temporary — that may enter the country.

Employment-based immigration now faces a federal cap. Although the Labor Department determines national demand for foreign labor, the U.S. citizenship and Immigration Services (UScIS) is required to admit workers according to a legislated quota determined by congress.

Every year, UScIS issues 65,000 H-1b temporary visas for skilled workers certified by the Labor Department out of approximately 630,000 approved applications from employers, with applications showing no sign of abating. Immigrants who hold H-1b visas must return to their home countries when the job ends.

A similar backlog exists for permanent residence visas sought by individuals both in America and abroad, with applications often close to ten times the number of "green cards" that may be issued. In 2006, more than 12,000 newly-arrived workers received green cards to work in the United States, and 53,000 temporary workers already in America were granted green cards.

Foreign workers must be awarded labor certification from the Labor Department. This process requires the prospective employer to affirm that he has determined that no American workers are available to fill the position, and that the foreign worker will be paid the prevailing wage. Granted both to temporary workers seeking permanent status and new arrivals, permanent labor certification is one of many prerequisites for employment-based green card applications.

Temporary labor demand, seen through H-1b visa applications, has been sharply increasing. For fiscal year 2008, the visa cap of 65,000 was reached in one day. This is not to say H-1b visas have always been in unmatchable demand. During the 1990s, congress temporarily raised the quota to 195,000, a number that did not exceed demand, but the quota reverted to 65,000 in 2004.

This figure represents a miniscule portion of the U.S. labor force of 154 million. Even if the quota were raised to 150,000 annually, that would be less than one tenth of 1% of the labor force. A higher quota would still block admission to the vast majority of applicants who are discouraged from applying due to the small likelihood of success.

Because the Labor Department is ideally positioned to judge employer demand for foreign labor, Congress should let it make quarterly decisions about how many visas and green cards to issue.

Whereas Congress is ill-suited to change laws each time the economy goes up or down, the Labor Department has both the expertise to evaluate a change in the economy and the ability to react accordingly. Concerns regarding unskilled (even temporary) labor depressing the labor market could easily be addressed by requiring the Department to determine the number of unskilled temporary, seasonal, or other visas issued.

Previous congressional attempts to revise the numbers of immigrants allowed to enter America each year have become entangled with other immigration issues, so that quotas are rarely changed. If the Labor Department were allowed to change the number of visas and green cards quarterly for work purposes, it would be able to roughly match the number demanded, without causing undue burden on U.S. workers or community facilities, such as schools and hospitals.

Rather, these foreign workers would pay state, federal, and payroll taxes and would enhance America's fiscal position. Skilled foreign college graduates who have been studying in America, often at taxpayer expense, are frequently denied access to American jobs beyond their graduate or doctoral careers, and must leave.

Immigration is a matter that affects the nation as a whole. It is worrisome, then, that some states are trying to take the lead, acting when congress fails to act. Uneven levels of stringency between states encourage the most mobile businesses to migrate to where they can most easily do business. Less mobile businesses, such as family farms, suffer.

Without regular changes to immigration quotas that match changes in employer demand, America will continue to close its borders to workers who would help the economy grow.

Allowing the Labor Department to adjust legal immigration every quarter to match U.S. need for foreign labor would help America resolve its current quagmire over immigration policies. It would allow America to leave behind the rancor and division over immigration that has plagued 2007, and to set a new tone for a new year.

Ms. Furchtgott-Roth, former chief economist at the U.S. Department of Labor, is a senior fellow at the Hudson Institute. She can be reached at dfr@hudson.org.