Daley Ponderings

Jon asked me to post this essay written by our friend.

Life as an Immigrant

By Marc Brands

From 1993 to 1996 I did an apprenticeship in Electronics Engineering at Siemens. In Switzerland apprenticeships are very common, students attend about 16 hours of classes and about 32 hours of practical training per week at an employers' site.

For most people the apprenticeship is the final stage of formal education. A few people go on to higher education in a full-time university setting. In Switzerland higher education is virtually fully paid by the state and because of this, demand is high and space is limited. Generally less than 20% of applicants will be accepted for any given university. Each university has its own admissions test, and preparations for these tests usually involves months of study. Fortunately, I was accepted into the computer science program at one of the top engineering schools in Switzerland.

That particular school had a reputation of over-accepting students and then failing a number of them during the first few semesters. One of the required subjects was English and as I had some time between finishing my apprenticeship and starting the university I decided to study English beforehand.

I decided to come to the United States to study English. It was a life changing experience. I made friends with people from the US and all over the world. I had the best time of my life. I recognized the strength of the US lies in its diversity and ability to attract the brightest and best people in the world. The US is a great society that is based on individual freedom to let people interact in mutual beneficial transactions that breeds respect, a solid code of ethics and respect of the rule of law.

After four months of English I returned to Switzerland to begin my studies. Most people had to work more than 80 hours per week and after the first semester our class size shrank from 24 to 13 students. I was doing fairly well but I was not happy with the environment I was in.

Relative to the US, Switzerland is a fairly closed country in terms of immigration; people are not often exposed to other cultures and ideas. I felt like a bird that was let out of the cage to see the world and was then put back into the cage. As in the US and most other countries, people in Switzerland are very patriotic and consider their country the best in the world. After spending only four months in the US, I realized that there are many great countries in the world and that the US was taking the best things from all over the world. This fact, coupled with a free market philosophy and the concept of individual liberty made this country very attractive for me.

Switzerland is considered one of the richest countries in the world; at that time it had a higher GDP per capita than the US and it was also considered one of the freest in terms of economic and personal liberty in the world. Given all that I still felt Switzerland was moving in a socialist rather than a capitalist direction. There was a defining moment I remember very well where we had two political parties invited to our campus to debate. One candidate suggested abolishing the federal requirement of employers to paying a predefined premium of 25% to any employee working at nights or weekends and let the free market clear the equilibrium wage premium. That idea was massacred and there was virtually no one in the room that would even consider it. Looking around the room realizing that these people will be the leaders of this country, I decided to investigate the possibility of migrating to the US.

In 1997 I returned to the US, took one more month of English and enrolled in college. Economically, it made no sense; I now had to pay full out-of-state tuition and attended a school that is considered inferior and would offered smaller earnings potential in terms of level of education. Nonetheless, I considered it to be the absolute right move. I was much happier, I had more friends, I had more free time and I had the perception of being free. The economy in the US was booming while Europe was somewhat stagnating. In my free time I was trading in the stock market and made a small fortune which I later lost in the bust following 2000.

I graduated in 2000 with Magna Cum Laude and found very quickly a job at Carnegie Mellon University as a Systems Manager at a renowned MRI research lab. At that time I was not very concerned about receiving a work visa. Initially, I had a OPT (Optional Practical Training) which is a work authorization for up to one year that people receive after graduating from a US university as a full time student to get practical experience in their field of study. I only applied for 3 and 6 month each because I wasn't sure if I'd find a job and alternatively I would have gone to graduate school. Because of immigration processing times, there was a 1 month gap between the OPT and the H-1B where I wasn't able to work, but otherwise I did not have a problem getting my work visa. In fact the department head at that time was able to fill out all the forms which didn't require an immigration lawyer.

During my career at Carnegie Mellon University I decided I should apply for permanent residency. I hired an immigration lawyer and started the green card process with the labor certification which is the first in a three stage process. Only at that point I realized enormous bureaucratic hurdles that had to be cleared. I had to spend thousands of dollars in lawyers fee as well as over $1000 to advertise my position and then my employer had to interview all applicants that applied to my position and show that they did not qualify.

At this point the economy started to go into a recession and September 11 happened. I remember the day very well, and I would have never ever imagined the amount of policy changes that this caused and how massively it would change this country and my personal life.

After about 2 years of my labor certification case pending, I received the denial of my case. The immigration claimed that the requirement that we specified for my position which included some experience or knowledge in electronics was too specific and tailored to my background and therefore reduced the requirements to anyone with a bachelor's in a computer science related field which qualified 13 out of 35 people. My electronics experience and knowledge was in fact very crucial to my position since I developed almost all devices that are used in the MRI and interact with our in-house research software and the MRI scanner but that did not change the decision. It was an eye opening experience; I blamed myself a little for not being on top of things and not carefully choosing a good lawyer. I couldn't imagine that I would not get my case approved. During these times I was politically active, publishing Op-ed pieces on the Internet. Today, those opinions are considered true and accurate by most people, but they were not at that time and I am now convinced that this has caused my denial. I realized that free speech isn't as free as many believe it is. I did hire a new immigration lawyer, restarted the process and stopped expressing my political views.

During my full time work I started taking classes towards an MBA from Carnegie Mellon University at the Tepper School of Business which was placed as the second best business school in the world by the Wall Street Journal and ranked in the top 20 in all other major publications. It was lot of time spent but I managed to graduate with honors.

In the meantime my labor certification case was still pending, at that time cases were pending several years but a new labor certification process which was called PERM was put in place which is completely computerized and most cases went through the system within only a few months.

I decided I would look for a new position and redo my labor certification through the new employer and new position. The job search was impossible. The amount of discrimination based on my need of visa sponsorship was incomprehensible. 95% of all recruiting companies at the Tepper School of Business would refuse any interview with anyone needing sponsorship and this was worse given the fact that about half of all students at the school would require sponsorship.

Because the tech boom in the 90's congress raised the annual cap for H-1B work visas to 115,000 for FY 1999 and FY 2000, and then to 195,000 for FY 2001 through 2003. During these years quotas were not reached and employers were able to hire the best qualified individuals and generate wealth for the country. H-1B visas for Universities are cap exempt and therefore my visa was never counted towards the quota even though there would have been enough visas available.

In October 2003 at the start of the FY the increase in the visa sunset back to 65,000 visas annually. Because of the political climate with the war and the public's anti-immigrant sentiment there was no support to raise the cap. That year the cap was reached in February 2004. The following year the quota was reached October 1, 2005, the first day they became available. Since my visa was never counted toward the quota, I would need to be counted towards this quota. Furthermore, since I was studying part-time under my work visa I was not eligible to receive an OPT. At this point I was stuck and could not move forward. To alleviate this immigration crisis, congress passed a law that made an additional 20,000 work visa available to anyone that has a graduate degree from a US university.

After several month of intensive job search I found an employer that was willing to sponsor me. I signed the contract and stopped my job search. Unfortunately, there was long delay until these additional 20,000 would become available. After waiting several months my new employer decided that they could no longer wait and withdrew their offer.

Only days later the visas became available. I knew they were not going to last very long, so I decided to contact anyone I knew and had contacted during in my job search. A friend of mine who was also ex-coworker told me about a position at his current employer. I interview and immediately took that position. That new position was a lateral move at best, the job skill requirements were lower, the daily tasks were less interesting, and the compensation was merely equivalent to the previous position. I was still glad that to be able to take that position since it promised a faster path to the green card so I would stop being discriminated against.

My new employer did file a new labor certification with PERM and my case was approved in less than one year from the start. Because there is a limited availability of immigrant visas (green card) each year the USICS limits applicants to apply for Adjustment of Status (the final step in the green card process) based on their country of origin, employment based preference category and date they first filed for the labor certification.

Because my position did not require a graduate degree or a minimum of 5 years related experience and was also not compensated accordingly, I was put into the third employment based preference category (EB3). Every visa in that category was retrogressed, meaning only people who had filed their labor certification in 2001 would now be able apply for AOS (Adjustment of Status). Things didn't look good. After a while, I consulted with another immigration lawyer who recommended I should find a new employer and have them file for a green card under the EB2 category which was luckily not retrogressed for my country of origin. I would then work for them as soon as I would receive my EAD (Employment Authorization Document) which one should get about one month after applying for the AOS. I did not really want to switch employers but it seemed to be to only feasible option. I also talked to my current employer to see if they were willing to offer me a future position and redo my green card process under the EB2 category.

During this discussion an amazing thing happened. The June Visa Bulletin, which is a monthly posting by the DOS (Department of State) showing the current priority dates for each category of applicants, was published. Many priority dates moved significantly, my priority date for example moved by over 2 years in one month, moving me significantly closer to the date when I could apply for AOS. The reason for this was to avoid what happened in previous years when immigrant visas were wasted. The DOS had often mis-estimated demand and priority dates weren't moved ahead enough so unused immigrant visas of one fiscal year could not be moved to the next. At this point I abandoned the idea of trying to file in the EB2 category since it would have only given me a marginal benefit.

One month later, the July Bulletin was published and virtually all employment based priority dates became current. This was unprecedented and completely unanticipated. I was very happy about this but it also started a rush of collecting all required papers and such.

One of the requirements was a medical exam only to be performed by an approved civil surgeon. Because of the sudden spike in demand, all available physicians got flooded with appointment requests and the first day after the announcement all available physicians in the Pittsburgh area got booked out until August which was past the deadline for filing. I was very lucky and found a physician in Erie, PA where I was able to "piggyback" on a friend's appointment. I had to take off work to travel to Erie for the two required appointments, but it worked and I was able to get my medical examination.

The immigration's own laws and regulations state that people whose priority date is current for a particular month may apply for the AOS anytime during that month. On Sunday July 1, rumors indicated that the DOS would make all categories unavailable as soon as Monday or Tuesday. Given this information I decided to prepare all documents, purchase a next day airplane ticket, and hand deliver them to the immigration attorney located in Phoenix AZ. For anyone who has not dealt with immigration, this seems excessive given that one could just overnight the documents and save several hundred dollars but it was not excessive given what is at stake and many who had to deal with the immigration systems can attest to this.

As I got off the plane in Phoenix I received the news that the DOS revoked their initial July posting and made all immigrant visas unavailable and that the USICS would reject any applicant's application. I was able to talk to the managing director of the law firm, I was devastated, angry and almost in tears. The DOS incorrectly estimated the demand of immigrant visas and thus had published this unprecedented movement in the July Visa Bulletin but then revoked their decision.

I did decide to file all my papers on my own without any ones review so I would have proof that I attempted to file my case. The American Immigration Lawyers Association is working on a class action lawsuit against the USCIS and they had suggested people should attempt to file their case.

All of this keeps me pondering and predicting the future of this country. This country has changed dramatically in the recent years. Many very poorly chosen policies have been implemented that, in my belief, have contributed to a significant decline of this country.

If one takes a look at the US dollar exchange rate relative to the trade-weighted currency index a decline of about 16% since 2001 can be seen. This decline can be translated into loss in total economic value of this country relative to expected opportunity cost. Exchange rates are determined by the market's belief of future productivity differentials between countries. Massive debt levels, increased cost of regulatory compliance, America's declining brand name and goodwill in the world, and also America's increased closing of its borders has contributed to this country's decline.

I am very concerned about the future. If we continue at this rate, this country will be bankrupt in only a few decades. I know we will turn things around and we will not continue at this rate. No one can now predict when we will hit bottom and when we will correct our path.

I have been seeing this country decline for years but this immigration disaster was now the defining moment in my life where I am starting to investigate my options for a better life.

I am the first employee of my current employer that is being sponsored. Sadly, I am also the last one. My employer became aware of the waste amount of bureaucratic hurdles and cost that is involved in sponsoring a non-permanent resident and decided to not interview anyone requiring sponsorship.

My situation is just one story of millions, literally. I can not think of any immigrant that I know personally that does not have some sort of horror story of their own. One friend of mine, a PhD student was held up in his home country for four months awaiting his security clearance for renewing his visa stamp while his university students didn't have a teacher. Another friend of mine was forced to quit her job because she couldn't get an H-1B visa after her husband had to switch off his J-1 visa status. She was stuck at living at home with nothing to do for several months and eventually just went home. Yet another friend was also had to stop working due to the H-1B unavailability crisis and forced to leave the country for good. These are immediate friends of mine and not some isolated cases and all of them have graduate degrees.

Relative to many, I am in a much better situation, I can be happy that I am from the country that I am from and that I have a graduate degree from the US.

I have been in this country for over 10 years and have been trying to get a green card. I spend $10,000 regularly to pay for lawyers and such, have forgone at least $100,000 in earnings due to the unavailability of H-1B's and not being able to be more productive.

I came to this country yearning to be free. But a country where Bob wants to work for Joe, Joe wants Bob to work for him and Uncle Sam says you cannot is not a free country!

I am at a stage in life where I realized that all the reasons why I came here in the first place don't seem to exist anymore. I am seriously considering packing up my stuff and go to some country where I am welcome, because I am clearly not here! I will take all my wealth and knowledge and go where liberty and freedom is practiced.


Updates:
- July 12, 2007: American Immigration Law Foundation announced they have collected sufficient evidence and are preparing the class action law suit.
- July 17, 2007: American Immigration Law Foundation announced they are ready to file its class action lawsuit against the USCIS and the DOS
- July 17, 2007: The USISC announced they will reinstate the July Bulletin and will accept AOS cases until August 18.
- July 19, 2007: The Senate rejects a bill that would recapture unused H-1B visas to give temporary relive to the visa crisis.
- July 20, 2007: After reviewing my case with the lawyer it was discovered that I failed to send the required $70.00 fingerprinting fee and that my case will most likely be rejected.