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RAISE Act's “point system” is unworkable and would hinder merit-based immigration

This post is part two in a series on S. 1103, the Reforming American Immigration for Strong Employment (RAISE) Act, sponsored by Senators Tom Cotton (R-AR), David Perdue (R-GA), and Josh Hawley (R-MO). Part one reviews the proposal’s impact on wages and the economy, and part three addresses the bill’s provisions on refugees.

For more on principles for modernizing our employment-based immigration system, read our joint report with the Orrin G. Hatch Foundation, “Barriers to recruiting and retaining global talent in the U.S.

On April 10, Senators Tom Cotton (R-AR), David Perdue (R-NC), and Josh Hawley (R-MO) reintroduced the RAISE Act, legislation that would permanently reduce legal immigration to the United States in half by: eliminating the diversity visa, eliminating or restricting eligibility for immediate family and close relatives of U.S. citizens and permanent residents, and imposing a permanent cap on refugees; the bill would also replace the current employment-based system with a points-based system.

The bill’s sponsors posit that, in addition to eliminating key immigration eligibility categories (like family-sponsorship and diversity), the United States should abandon its current model of having employers sponsor much-needed workers and instead select immigrants based solely on a points system that can identify their economic merit and likely contributions. While legislators have considered points systems as part of merit-based immigration proposals in the past, the simplistic and misaligned system presented in the RAISE Act would ultimately hinder the U.S.’ ability to recruit and retain needed talent, not help it.

Canada and Australia are two countries that both utilize a points system to determine which immigrants are admitted for entry. Canada is often pointed to as a model for points-based immigration, yet Canada is a country with one-tenth of the U.S. population – and is a nation where the majority of all new immigrants settle in just three major cities (Vancouver, Montreal, and Toronto).

There are additional legal and constitutional issues as well that could make a points system in the United States more challenging. A report from the National Foundation for American Policy found that the “separation of authorities between the legislative and executive branches of the U.S. government likely make it impossible for any point system to work effectively and in a manner similar to the point systems in Canada and Australia.” This is because other countries rely on government agencies, whose counterparts in the U.S. operate under the Executive Branch, to manage these programs, including adjusting levels and criteria. However, under U.S. law, Congress and the legislative branch are largely responsible for immigration laws, particularly relating to the admission of immigrants. Providing agencies the flexibility needed to administer this program would require a much more substantial change to immigration law.

And as the UK, Australia, and Canada have found, a points system as the primary means of immigrant selection does not always work as intended. With a workforce of more than 160 million, it is likely impossible for Congress alone to take on the responsibility of constructing and regularly updating a points system for our country that reflects the vastly different and rapidly changing economic needs of industries, sectors, and geographies throughout the United States, as the RAISE Act proposes.

Put simply, if the massive cuts to overall immigration levels was not the fatal flaw to this proposal, the points allocation system proposed in the RAISE Act would be. It focuses on three fundamental measures that inadequately capture the potential for any individual’s future contributions:

  • Age – Ideal age being at least 26 but under 31
    • Problem:  Most experts, including union-side thought leaders who have analyzed immigration systems in other countries, believe that facilitating selection of foreign students in the host country (U.S.) as permanent residents should be a top priority. The ideal age (most points) in RAISE discourages students earning a Bachelor’s or Master’s in the U.S. from qualifying for green cards, as most undergraduate students are under the age of 26, and nearly half of graduate students are over 30.
  • English Proficiency – Disqualifying if scoring in the 50th percentile or lower in standardized testing, and difficult to accrue enough qualifying points unless scoring in the 80th percentile or above.
    • Problem: Most experts believe it is important to show the start of basic language proficiency (not merely an effort to learn or a start to taking classes) but believe that fluency is not required for success, because integration in our country requires other basic skills beyond language, such as familiarity with the U.S.’ health care and educational systems, and daily digital and financial tasks. RAISE requires language proficiency beyond what some U.S. universities require for foreign students, and well-beyond a starter’s level of proficiency.
  • Education – The most points are for U.S. MBAs, U.S. JDs, U.S. MDs, or U.S. PhDs in STEM.
    • Problem: Prioritizing MBAs and JDs is not the wisest choice. The differential between U.S. and foreign degrees and educational levels and excludes many foreign students who are recruited by U.S. employers from on-campus recruiting, but whose degrees and qualifications don’t align to U.S. standards.  Moreover, the focus on education without any consideration of experience directly excludes both lesser-skilled workers as well as higher-skilled workers who are ready to enter the workforce without any further education but with real-world training and experience that would immediately benefit their employers.

Since the RAISE Act establishes that no one will obtain permanent resident status except through points (other than immigrants married to an individual who is already a U.S. citizen or Lawful Permanent Resident), these defects are vitally important.

Under the RAISE Act, a points system replaces the existing employer-led system as the sole means of recruiting foreign talent to work in the United States. Such a large shift in policy raises several questions that have yet to be answered: How closely will the new points replicate or mirror employers’ selection process? Do Americans trust Congress to be the sole decider of which potential employees have merit? Or do we want individual employers large and small, in any industry or sector, in a major city or regional hub or rural town deciding who they want to hire?

As mentioned above, the points system in the RAISE Act leaves much to be desired. However, there are alternatives to the points system in the RAISE Act that might work as part of our nation’s legal immigration system. The comprehensive immigration bill passed by the Senate in 2013 (S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act) adopted a very different points allocation approach than the RAISE Act, which was just one part of the employment-based immigration system. The points system in that legislation created two tiers of merit-based immigrants that complemented the current employment-based system, with Tier 1 more focused on the highly educated and Tier 2 admitting lesser-skilled workers. Additionally, the legislation focused much more on employment and experience, providing a range of points in both Tier 1 and Tier 2 across all occupations and skill levels (S. 744 also created a “Track Two” merit-based points system solely for the undocumented, not summarized here).

It may be that the Tier 1-Tier 2 points allocation in S. 744 has too many factors, but it is certainly more focused and fine-tuned than the RAISE Act proposal. If we are going to discuss a points system as part of the United States immigration system, this might be a good model to work from.

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