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.
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