Watch this interview in two parts at www.YouTube/DeborahInterviews.
With so much debate on illegal immigration, we rarely discuss legal immigration—our laws and policies—and how they can be used to lessen the more than 11 million undocumented immigrants in the United States. I recently interviewed Attorney Gary Endelman about his contribution to the book, Legal Briefs on Immigration Reform from 25 of the Top Legal Minds in the Country. In his Legal Brief, The Tyranny of Priority Dates, Endelman shed light on a complex part of our legal immigration system known as Priority Dates. He likens this U.S. policy to institutional racism. But before I ask him what he means by this charge, we talk about why he believes immigration is ‘demographically inevitable’. Endelman is one of the top legal minds in the country and the former in-house immigration counsel for BP America Inc., where until recently and since 1995, he handled all U.S. immigration law for the BP group of companies throughout the world.
Here’s my interview with Attorney Gary Endelman.
DEBORAH: You say if America had a more rational system of legal immigration there would be fewer undocumented immigrants. What’s irrational—what’s wrong—with our immigration system here in the United States?
ENDELMAN: First of all, I think we have to realize that more immigration is a demographic reality. What do I mean by that? In the United States, as in all advanced industrialized countries, you have an aging population and you have a birth rate which is falling as women have more education and employment opportunities. Especially with my generation—the baby boomer generation, retires—there is going to be a tremendous pressure on the system. You will have fewer and fewer workers paying social benefits for more and more older people. Since the birth rate will not provide the additional workers to help deal with this, whether it’s the United States or anywhere—all countries, not just the U.S. —are having to look to the only place where we can get additional people in the prime of their working lives. And that is through immigration. Whether we like it or not, whether we want it legally or illegally, more immigration is inevitable from a demographic point of view. There’s no other alternative to get workers to pay for a larger and larger percentage of the population that is retired and living longer.
DEBORAH: Let’s go back for a moment to what’s wrong with our immigration system. Yes, it’s inevitable from a point of view, but what’s wrong with our system now that we have a problem with illegal immigration?
ENDELMAN: There are two things to say about that. One reason that illegal immigrants stay in the United States is that they are afraid to go home for fear they won’t be able to return. They don’t particularly want to stay in the U.S. If there was a circular pattern of migration the way there used to be in the 1950’s, people would come here illegally to find jobs and they would return home; they would not stay. It’s only because they are trapped by our immigration system—fearing that they won’t be able to get back—that they’re not leaving. So, we are in effect producing the very problem we claim to be concerned about. That’s one issue. The other issue in the reason that people come illegally is that there is an economic need for them, but that they cannot come legally because the system does not allow for it. There are comparatively few Green Cards awarded to workers who are—quote unquote —unskilled. And so they come illegally because there is still a need for them to come to work in our fields, to pick our food, to work in our factories and to work in our nursing homes. If there weren’t an economic need for it, they wouldn’t be here. But the law does not allow a legal means for them to come. So since there is an economic need for them to come, they come illegally because that’s the only way they can come.
DEBORAH: So, we need reform. Every president has promised it. Who’s responsible to bring about reform? Congress won’t act. The courts are acting in response to states. And the President is fighting the courts and waiting on Congress. Who’s really responsible to do something about our immigration laws?
ENDELMAN: Well let me just focus on legal immigration because people tend to think that immigration is just about the immigrants and it’s really about us. We have a situation right now where there is a global competition for the best and the brightest; a global competition for talent. We are no longer the only game in town. We are no longer the only place that the best and the brightest can come. They can stay in their home countries where there’s an economic rebirth. They can go to other countries. It used to be that the United States was the only place a person of talent could come. That’s no longer the case. So, you have a situation where in the 21st Century, in a global economy, that country will prevail, will lead, will dominate that has the best talent, the best human capital. Just the way in the 19th and 20th Centuries. Countries that had the best natural resources—physical wealth, physical assets—dominated. Now, it’s talent, human capital. And what is happening here. We have the best and the brightest coming from all over the world because we have the best graduate schools in the world because this is where the exciting research and innovation is happening. And then when they come and get their education here, when they are most valuable to us, our immigration system forces them to leave and forces them to work for our competitors who are in a better position to take jobs and industries out of the United States. It makes no sense. It’s counter-productive to our economic interests to have the immigration system that we have. We should be welcoming people with advanced degrees in science and technology, engineering and mathematics, not making it difficult for them to stay.
DEBORAH: Let’s look at it from a public perspective. Many of the attorneys have the same opinion, definitely, immigration is inevitable. But that’s not very palatable to most of the public. Why?
ENDELMAN: Because I think we’ve done a very poor job on our side of explaining that immigration is in the national interest, not just in the interest of the alien. And that’s because most immigration advocates and most immigration lawyers are pro-immigrant and not necessarily pro-immigration. What do I mean by that distinction? I mean the reason that I support more immigration is not because I think it is good for the individual immigrant, but because I think it’s good for the United States. My focus is on the ability of the immigrant to enhance the national economic interests of the United States. My focus is nation-centric not so much immigrant-centric. I don’t think immigration should be what I think many immigration advocates think it should be and that’s sort of like enhanced international social work. We should always have an element of our immigration policy dealing with refugees and asylees, but the focus, it seems to me, should be on using immigration the same way we use tax policies and the same way we use all other types of national policies; to advance the economic and strategic interests of the United States. So for example, our immigration policy should not be geographically neutral. Right now, India, for example, gets the same number of Green Cards as Liechtenstein. China gets the same number of Green Cards as Monaco. It makes no sense. India is extremely important to the United States right now. We want access to the Indian market, to their economy. Well, they want VISA’s. It seems to me that there is a mutuality of interests there and the United States should use immigration to advance its own national interests. If we don’t have that focus on it, I think we’re doing ourselves a disservice and that’s the reason—to come back to your question—that Americans really don’t understand why more immigration is in the national interest.
DEBORAH: Let’s talk a moment about Priority Dates because you believe that until we really have reform, we need to look at the laws we have and how we might be able to change them or work within them. One of those areas is in Priority Dates. This could really be a difficult discussion, but I want to keep it in laymen’s terms so we can kind of understand what Priority Dates are all about. So, I’ll ask you three questions. What are priority dates? Why are they important to immigration? And what’s tyrannical about them?
ENDELMAN: The United States has a system of so many Visa’s or Green Cards being awarded each year. For example, in employment, it’s 140,000 for the whole world. Not a lot. Each country gets 7% no matter how big the country is. As I was saying, China gets the same as San Marino. Within that 7% it’s broken down into certain preferences or categories. Each category gets a certain amount. The law says that in order to apply for the Green Card, you have to have a Green Card number immediately available to you; you have to be at the head of the line. It’s like when you go to pay for something at a store, you have to be at the head of the line in order for the sales person to take your purchase. It’s the same thing in immigration. You have to be at the head of the line where there’s a Green Card number immediately available to you in order to even be able to apply for the Green Card. Now in some countries, like India, China, Mexico and the Philippians, where there is a very, very, heavy and sustained demand to come permanently to the United States, that has resulted in huge waiting periods. Huge. Enormous. And those places in line are called Priority Dates. Priority Dates are a way to arrange people in line who want to get a Green Card. To put it in simple terms. Now if you have, let’s say, an advanced degree—a PhD.—in engineering from India, and you have managed to persuade the U.S. Government that your work is in the national interest, so they’ve approved a petition on your behalf, it will take 8, 9, 10, maybe longer, years for your priority date to become current. Meaning, in order for you to even apply for the Green Card, even if you’ve been able to demonstrate that your work is in the national interest of the U.S., even if you’ve been able to demonstrate that there aren’t Americans to do your job, it will take years before you can even apply. That is because of the inadequate immigrant quotas and the Priority Dates system which says you cannot even apply for the Green Card until you get to the head of the line.
DEBORAH: You liken Priority Dates to institutionalized racism. Can you explain that?
ENDELMAN: There used to be a law that was passed in 1924 by Congress that was called the National Origins Quota. It was passed after WWI to keep Jews and Catholics from Southern and Eastern Europe from coming to the U.S. It was the law until 1965 when things were made geographically neutral. There used to be laws in the 1880’s that lasted until WWII that excluded Chinese from permanently coming to the United States, making them ineligible for citizenship. It was called the Chinese Exclusion Act. Now we don’t have those laws, overtly, right now. But, the effect is still the same. The Priority Dates system is such that it is becoming almost a mirage—almost a cruel joke—for people from China and India to hope to immigrate to the U.S. They might as well have a ‘do not apply’ sign because that is the effect of the Priority Dates system.
DEBORAH: So, what’s the answer to the Priority Dates system? How can it be corrected outside of Congressional reform?
ENDELMAN: That’s really the answer because we have inadequate quotas, but short of that, there are enormous possibilities for remedial action in the law as it now exists—through Executive action and regulation—that would not wait upon Congressional action or be dependent upon Congressional action. There is enormous flexibility in the law. The Executive, through Executive Order, through regulation, through administrative action, can do many, many of the things that legislation could do. I’ll give you one example. In the summer of 2007, in July, there was a dispute between the immigration authorities and the State Department as to this whole system of Priority Dates; which ones were current and which ones were not. So they compromised and they said for one month, all Green Card categories based upon employment were current. Everyone could apply regardless of Priority Dates; regardless of how many people were in line ahead of you. For that one month, everyone could apply. There was no change in regulation. Congress never acted. They decided this as a matter of interpretation and administrative fiat. They could do the same thing today. We could let people informally submit their applications, not technically apply, but have a provisional submission, giving them many of the benefits in terms of travel and employment that they would get normally as part of an official Green Card application. But, the cases would not be approved unless and until the Priority Dates actually came current. That way, people who are in the United States—who are not going home, whose talents we need—could be allowed to get on with their lives and we as a country can get the benefit of their talent and their energies and their commitment.
DEBORAH: What is the likelihood of that happening?
ENDELMAN: I think it’s very unlikely, although several months ago a memo was written to USCIS Director Alejandro Mayorkas basically arguing for the same thing I’m arguing for now. The memo was leaked by opponents of this who wanted to create a political controversy and defeat the approach. If the administration had the vision and the political will to do it, they could do it now. They could do it tomorrow.
DEBORAH: As a corporate attorney for many years, how have you seen Priority Dates affect the corporations in America?
ENDELMAN: Let me give you an example. It is becoming increasingly difficult for technology-oriented companies to attract the best and the brightest talent which they need and which America needs. And what’s inevitably going to happen—and you’re already seeing it now to some extent with companies establishing R&D centers outside the United States by countries more than eager to have them—if you cannot get the talent you need into the United States because of antiquated and irrational immigration restrictions, then companies will increasingly send those jobs out of the United States to be done at research and development centers where the talent can be employed. And inevitably we are going to weaken our national economic competitiveness by that. And it’s happening now.
Deborah Robinson is co-editor and publisher of Legal Minds on Immigration Reform from 25 of the Top Legal Minds in the Country.
Watch this interview in two parts at www.YouTube/DeborahInterviews.
Read more about Deborah and Attorney Gary Endelman at www.25LegalBriefs.com.