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The House of Representatives is moving quickly to give the appearance that they have changed their tune on immigration.  The House is scheduled to vote this week on the STEM Jobs Act, sponsored by the anti-immigrant Lamar Smith (R-TX).  The STEM Jobs Act would provide 55,000 additional visas for foreign nationals receiving advanced degrees in science, technology, engineering, and mathematics.   Supporters of the STEM Jobs Act argue that it addresses an acknowledged problem area in U.S. immigration law– the difficulty that many needed and valued graduates have in securing residence.  In light of the many technology companies founded by foreign students, the cumbersome path to residence has caused many of these graduates to flee the U.S. and begin building their businesses in other countries.  There is widespread agreement that those graduating with advanced degrees in the STEM fields ought to be given enhanced opportunities to seek residence in the U.S.

The STEM Jobs Act would make 55,000 visas available to graduates who have received Ph.D. or master’s degrees in science, technology, engineering or mathematics.  According to the House Committee on the Judiciary, STEM graduates with Ph.D.s can receive residence if they:

• have received a doctorate from an eligible U.S. university in computer science, mathematics, engineering, or the physical (excluding biology) sciences.
• agree to work for the petitioning employer for at least five years in a STEM field.
• have taken all their course work while physically present in the U.S.
• are petitioned for by an employer who has gone through the labor certification process to demonstrate that there are not qualified or available U.S. workers for the position.

If there are visas left over after the Ph.D. visas are given out, graduates with STEM master’s degrees will be able to seek their residence on similar terms.

The House voted on the STEM Jobs Act earlier this year.  However, it failed for two reasons: (1) the House leadership used a procedure that required a 2/3 vote; and (2) only 20% of the Democratic caucus supported the Act.  The reason for the lack of Democratic support was because the bill does not increase the total number of visas available.  The bill eliminates the 55,000 diversity visas (visa lottery), so that the total number of visas issued in any given year is unchanged.  As the diversity visa remains one of the few ways that an individual with no family or employment ties to the U.S. can immigrate, many Democrats opposed its elimination.

The new STEM bill also eliminates the diversity visa.  Yet, the Republicans have sweetened the deal by providing for a temporary visa for the spouses and children of permanent residents.  This visa would allow the approximately 320,000 spouses and children of permanent residents waiting for immigrant visas to enter the U.S. and await their residence in the United States.  It would have the effect of uniting couples separated due to the backlog of visas in the category of spouses and children of permanent residents.  Currently, there is a two year backlog to receive residence as the spouse of a permanent residence.  Individuals receiving green cards today would have had to marry and file prior to July 2010.  The new law would allow people in that queue to enter the U.S. one year after filing an immigrant petition and then could wait out the queue in the U.S. with their families.  Something similar  has been done before in 2000, when V visas were given to those waiting in the backlog.  According to press reports, individuals entering to wait out the family based queue would be ineligible for employment authorization.

In summary, the STEM bill seems to be a non-serious effort to reform our immigration laws.  It is acknowledged that the process of obtaining residence for highly educated and skilled immigrants in the STEM fields is highly cumbersome and onerous.  Yet, STEM fails to fix that.  The cumbersome and onerous part is the labor certification, which requires employers to jump through a variety of hoops to petition for residence for foreign nationals.  Yet, STEM leaves that process intact.  Moreover, by tying a STEM graduate to an employer for five years, the STEM Jobs Act places more restrictions on a STEM graduate than on an individual who received her PH.D. in literature, who does not need to remain with her employer for five years.  If the goal of this bill is to unleash the creative and entrepreneurial talent of the STEM graduates, why are they tied to a specific employer for five years?  If, as the House Judiciary Committee states, STEM graduates are behind many of the innovations and new businesses, why does the STEM Jobs Act shackle them?

The STEM Jobs Act uses a lot of words to create exactly what already exists.  It is called the second employment based preference where an employer may sponsor an individual with an advanced degree through the labor certification process.  However, the current law provides visas for all types of graduates and employees who help the economy.  Those visas, except for India and China, are already current.  The India and China backlog is disgraceful and should be remedied, but it can be done in a far more pithy way than the STEM Jobs Act does.  Add 55,000 visas to the second preference.

This also raises the question of whether those visas should be taken from the diversity visa.  I am no fan of the diversity visa.  It seems silly for a country to give out residence based upon a lottery.  Immigration should be about filling the needs of American families and business.  A lottery strikes me as a very unsophisticated way to give out a very valuable benefit.  That being said, I do not think that the diversity visa should be traded for the STEM Jobs Act.  If the STEM Jobs Act eliminated the need for a labor certification and allowed STEM graduates freedom to work for themselves or traditional employers, the STEM Jobs Act could certainly make better immigration policy.  However, the STEM Jobs Act continues on the same bureaucratic path that has caused the problem we have now and does very little to unleash the forces of STEM graduates.  As immigration law becomes a topic of legislative inquiry, those interested in serious reform should make it clear that the same old ways of doing things must come to an end.

Even the sweetener of uniting families is fairly sour.  Applicants would have to have their I-130 petitions pending for a year before they could seek their visas.  This is roughly half of the current backlog.  Once here, they spouses of permanent residents could not work.  This restriction on employment authorization serves no rational purpose other than to stoke marital discord and financial hardship.
The STEM Jobs Act is not an opening bid in the new immigration reality.  It is a last gasp of the dinosaurs who have strangled and stymied meaningful reform of our immigration laws.  We won the election.  Our ideas should be the starting point.