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  #1 (permalink)  
Old 12-13-2007, 11:43 AM
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Default Constitutionality argument against per-country ceilings

Hello All,

First and foremost, i must thank everyone from IV, who is working tirelessly to resolve the issues of retrogression in the GC process. As an affected individual I am very grateful that leaders of IV are ready to contribute so much effort for its goals. And even though I do not actively work for the IV agenda, I have contributed money to some IV action items.

I have a question/suggestion regarding the IV agenda. On IV's about page, pt number 2 asserts amongst other things,
The Discriminatory Per-Country Rationing of Green Cards That Exacerbates the Delays.

and further in the same point

We do not allow employers to discriminate hiring based on their nationality or country of origin. Therefore, the employment-based immigration, which is a derivative benefit of employment, should also be free from rationing based on nationality or country of birth.

I am curious to know what is the "legal" strength of these assertions is. Are they just "moral" statements or can the validity of these statements be tested in the legal framework of this country? In other words, my question is what is the constitutionality of the "Per Country Caps" in Employment / Family Based Immrigration procedures.
A lot of Laws and Statutes have been challenged in the Judicial System of USA. And many more are challenged every year. And if the laws are not constitutional then they can be repealed.

I am sure the leaders of IV must have thought about this argument however a quick search of the forums with 'constitutionality' as the search term did not return any results.

IV's efforts to utilize Lobbying to bring about change to alleviate/eliminate retrogression are certainly beneficial. However, if IV has not already considered and eliminated this legal argument, then it should explore whether there is any substance to this approach.

Hence this post. Below are some of the links that might be relevant.

wikipedia article on constitutionality
wikipedia category on US immigration case law

thanks and sincerely,

--soljabhai
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Old 12-13-2007, 11:46 AM
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Default Interesting

Your suggestion seems interesting. Not a lawyer so absolutely no idea if it will fly.
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Old 12-13-2007, 11:56 AM
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Default Per Country Limit

If per Country Laws are removed in issuing Green Cards, then 90% of the employment based Visa's will be given to Indians and that too in the IT Sector.

Mostly the country will be Indians, chinese, mexicans . The Law makers don't want to colonize America.

There is a lot of stress that was done in making that decision

You can challenge this but i would say, you will never win it.

You can challenge the State but cannot win it.
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Old 12-13-2007, 12:13 PM
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Default not true

employment base makes up only about 11% of all immigration
the country would not be "colonized" by choosing people for this category on merit alone. as for 90%- this is too is frankly a wave in my view, all things change, for now many Indian techs want to come and they have jobs available, tomorrow one or both of those things may not be true. But none that justifies treating people differently because of where they are born.

this is entirely my personal opinion: if extended families (like adult siblings and their entire families) were excluded from FB, country quotas would lose some of their "need" and FB would not have to be the overwhelming majority of immigration numbers.

How about I ask you why the "diversity" is not needed in other things. how about a quota for religion? profession? color of skin...? all those can be diversity issue. What if I said not more than 7% STEM graduates? I'm sure the Programmers Guild would agree. If you don't like those ideas, why country of birth?

The fact remains though that EB is a skill based category. If I or you(?) join a company with identical (or better) credentials as someone from Congo/Sweden/Belize (whatever), they would have an EB2 GC in 1-2 years, we would sit for 10 and stew under multiple career holds and restrictions. Since no body from India would ever get the EB2 GC quickly, an entire subset of immigrants (based on country of birth) are ALWAYS held behind. You are presuming that somehow this benefits the US. Get skilled immigrants- but don't let a whole bunch of them rise to their levels of ability because they were born wrong. I am at a disadvantage because other people from my country applied for a GC. But when my employer takes me on, he does not care where I was born. My skillset has nothing to do with it. Why is my application (which is based on that employer and my skillset) hostage to something that is not even in the equation? This country is about individual freedom. I am here and an applicant for GC as an individual. What do I have to do with others who apply?

Fair? You decide.
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Old 12-13-2007, 12:25 PM
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Default Probably not

Discrimination in employment based on nationality is not allowed. However, can we extend the argument to the employment based immigration? We can always choose to take that promotion though we will lose our place in the queue.

Leaving the question of fairness aside, under the current legal framework my guess is we do not have a case.
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  #6 (permalink)  
Old 12-13-2007, 12:35 PM
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Default

Quote:
Originally Posted by grupak View Post
Discrimination in employment based on nationality is not allowed. However, can we extend the argument to the employment based immigration? We can always choose to take that promotion though we will lose our place in the queue.

Leaving the question of fairness aside, under the current legal framework my guess is we do not have a case.
--I think, per country quota system was framed with diversification as underlying principle, not discrimination.

Depending on which country you are from, it may seem like discrimination or fair system upholding diversity.

If you are from India, you would hate it. There are truckloads of programmers in that country. But if you are the only graduate with programming skills from a country like timbaktoo (?), you would love it. You also got a shot at american dream.

This EB quota system reminds me of Caste reservation system in India. To some that is fair, to others, it is unfair. Depends on which side of the fence you are.
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Old 12-13-2007, 12:39 PM
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Default

Quote:
Originally Posted by soljabhai View Post
Hello All,

First and foremost, i must thank everyone from IV, who is working tirelessly to resolve the issues of retrogression in the GC process. As an affected individual I am very grateful that leaders of IV are ready to contribute so much effort for its goals. And even though I do not actively work for the IV agenda, I have contributed money to some IV action items.

I have a question/suggestion regarding the IV agenda. On IV's about page, pt number 2 asserts amongst other things,
The Discriminatory Per-Country Rationing of Green Cards That Exacerbates the Delays.

and further in the same point

We do not allow employers to discriminate hiring based on their nationality or country of origin. Therefore, the employment-based immigration, which is a derivative benefit of employment, should also be free from rationing based on nationality or country of birth.

I am curious to know what is the "legal" strength of these assertions is. Are they just "moral" statements or can the validity of these statements be tested in the legal framework of this country? In other words, my question is what is the constitutionality of the "Per Country Caps" in Employment / Family Based Immrigration procedures.
A lot of Laws and Statutes have been challenged in the Judicial System of USA. And many more are challenged every year. And if the laws are not constitutional then they can be repealed.

I am sure the leaders of IV must have thought about this argument however a quick search of the forums with 'constitutionality' as the search term did not return any results.

IV's efforts to utilize Lobbying to bring about change to alleviate/eliminate retrogression are certainly beneficial. However, if IV has not already considered and eliminated this legal argument, then it should explore whether there is any substance to this approach.

Hence this post. Below are some of the links that might be relevant.

wikipedia article on constitutionality
wikipedia category on US immigration case law

thanks and sincerely,

--soljabhai

This is a good point. But, in its current state, will not fly. This can only be used as a supporting evidence for our cause. Lawmakers will never remove country cap. We can use this point in pushing any of our other agendas.
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  #8 (permalink)  
Old 12-13-2007, 12:45 PM
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Default pragmatically

There may or may not be constitution grounds to challenge the law, I've thought about this too, however from a pragmatic point of view....

1) The money needed to pay the lawyers would likely be more than for lobbying. Importantly money for legal costs is best to be on hand -- i.e. good cash flow, otherwise you risk missing legal deadlines. It would mean diverting money from lobbying. If we were flush with cash e.g. every member paid just $100 per year this would work.

2) Even among members of congress that are behind us, several have reservations about removing country cap (although they are willing to raise it).

3) EB3 ROW is retrogressed anyway. India EB3 is about May 2001, and ROW EB3 Oct 2002. The effect of only removing country quota would be put EB3 generally at about Oct 2001.

The way to move forward for all is to increase total through put, e.g. raise caps, remove dependents from caps, recapture unused quota, tie caps to multiple of H1B quota. For ROW it would move steadily forward, and India move and then would jump forward every 4th quarter with massive spill over from ROW.

As I said I'm not against the idea in principle, just being pragmatic.
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  #9 (permalink)  
Old 12-13-2007, 12:46 PM
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Default thats the whole point of the argument

We don't have to discuss with lawmakers. The congress can pass any law and the law will be implemented as long as the courts decide it is not constitutional.
Given our current state, the current laws do not work (for us).
we have two alternatives->
change the law (Lobbying helps here)
challenge the current law (Judicial review will help here)
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  #10 (permalink)  
Old 12-13-2007, 12:50 PM
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Default I am not so sure

Quote:
Originally Posted by grupak View Post
Discrimination in employment based on nationality is not allowed. However, can we extend the argument to the employment based immigration? We can always choose to take that promotion though we will lose our place in the queue.

Leaving the question of fairness aside, under the current legal framework my guess is we do not have a case.
This is a very interesting angle... even though on the surface it looks like we have a choice in taking that promotion and losing our place in queue, it is not really a choice. Do this a couple of times and your six years on H1-B expire, you basically have to leave your job and go back to your country. So taking a promotion is eventually a dead end. I think by extension, we can legally argue that this per-country based quota system is really (inadvertently) leading to discrimination in our employment based on nationality (which is unconstitutional).
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  #11 (permalink)  
Old 12-13-2007, 01:00 PM
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Default not really

Quote:
Originally Posted by at0474 View Post
--I think, per country quota system was framed with diversification as underlying principle, not discrimination.

Depending on which country you are from, it may seem like discrimination or fair system upholding diversity.

If you are from India, you would hate it. There are truckloads of programmers in that country. But if you are the only graduate with programming skills from a country like timbaktoo (?), you would love it. You also got a shot at american dream.

This EB quota system reminds me of Caste reservation system in India. To some that is fair, to others, it is unfair. Depends on which side of the fence you are.


if you read the history of immigration this country you will see that such measures are typically taken with restriction in mind not diversity. Diversity is the nice sounding cloak. there is a definite fear that FB will bring in many mexican migrants ( "chain migration") and the country quota holds that back imho. you think it's because of indian programmers? it was made long before those existed. remember we are a minuscule number- don't feel so important- the programmers are about 2% of all immigrants. 11% is all EB, half are families, half again are techies- not all those are programmers. do the math.

also remember that 50,000 Gc are given a year by lottery for "diversity". as a result more bangladeshis get Gc in a year than indians on EB. so why do we need the country quota in EB again?

to the person bringing up caste system and fences, here is my proposal.
i am a physician, i am being held behind hoardes of techies who can easily have PD's much before mine since i am training and working longer and the J1 holds me back. 12 years here and no where in the line...so i should get a fast track too. let's have a cap for the techies...hey it looks great from my side of the fence...i'm sure you will agree that i should be pushed up the line.

either it's wrong or right. the caste system is wrong, from every side of the fence. it may benefit some and hurt others. but it's wrong, wrong and wrong.
same for this country quota. sure it helps some, and looks good from "their side of the fence". that does not change the fact that it is wrong.

none of this is an argument for a legal approach. just responding to stuff here. the "colonizing" comment was really something. have the author been visiting FAIR??
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  #12 (permalink)  
Old 12-13-2007, 01:02 PM
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Default well put!

as always Mark!


Quote:
Originally Posted by mbartosik View Post
There may or may not be constitution grounds to challenge the law, I've thought about this too, however from a pragmatic point of view....

1) The money needed to pay the lawyers would likely be more than for lobbying. Importantly money for legal costs is best to be on hand -- i.e. good cash flow, otherwise you risk missing legal deadlines. It would mean diverting money from lobbying. If we were flush with cash e.g. every member paid just $100 per year this would work.

2) Even among members of congress that are behind us, several have reservations about removing country cap (although they are willing to raise it).

3) EB3 ROW is retrogressed anyway. India EB3 is about May 2001, and ROW EB3 Oct 2002. The effect of only removing country quota would be put EB3 generally at about Oct 2001.

The way to move forward for all is to increase total through put, e.g. raise caps, remove dependents from caps, recapture unused quota, tie caps to multiple of H1B quota. For ROW it would move steadily forward, and India move and then would jump forward every 4th quarter with massive spill over from ROW.

As I said I'm not against the idea in principle, just being pragmatic.
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  #13 (permalink)  
Old 12-13-2007, 01:04 PM
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Default Legality not fairness

Quote:
Originally Posted by at0474 View Post
--I think, per country quota system was framed with diversification as underlying principle, not discrimination.

Depending on which country you are from, it may seem like discrimination or fair system upholding diversity.

If you are from India, you would hate it. There are truckloads of programmers in that country. But if you are the only graduate with programming skills from a country like timbaktoo (?), you would love it. You also got a shot at american dream.

This EB quota system reminds me of Caste reservation system in India. To some that is fair, to others, it is unfair. Depends on which side of the fence you are.
Fairness or not is not the issue. Question is can it be challenged in a court? Diversity at work place is encouraged through outreach for example. But you cannot discriminate in employment based on national origin. Employers can't put quotas for employee diversity. Employment based immigration I don't think can count because part of the requirement for holding the job is that the employee have a valid work authorization.

For example, someones H1b 6yrs runs out the without possibility of extension, you cannot cry discrimination from the employer for not hiring you beyond 6yrs. As I said, the employers don't force you to not change job or job title. People don't because they will lose their GC or spot in the GC queue.

As an unrelated side note, the current quota system is something that has evolved from past policies some of which was used to restrict citizens of certain countries.
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Old 12-13-2007, 01:36 PM
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Post discrimination and constitutional history

Here's the percentages of the top 10 populations of the world by nationality. How many of them are more than 7% ?

China 20.0 %
India 17.2 %
United States 4.6 %
Indonesia 3.4 %
Brazil 2.8 %
Pakistan 2.6 %
Nigeria 2.5 %
Russia 2.2 %
Bangladesh 2.1 %
Japan 2.0 %

Based on this one can conclude that the 7% nationality rule is a veiled effort to limit Indian and Chinese immigrants specifically. Does this not amount to discrimination by nationality ? In addition we as legal immigrants are taxed without any representation. Taxation without representation was the reason the US was created in the first place.

US history is full of examples where discrimination existed in one form or another and these discriminations were sucessfully challenged. A few examples are women's voting rights, minority voting rights and gerrymandering. These are good examples to study where the affected people had no legal voice to begin with.

The civil rights movement is a recent example. There were existing laws that limited people from voting based on their literacy levels in the southern states. The literacy requirement for voting was really a thinly veiled attempt to limit voting rights of african americans for as long as possible. The civil rights movement was about changing these artificial laws to give voting rights to people who legally had no voice.
http://www.usdoj.gov/crt/voting/intro/intro_c.htm

You don't need to be a lawyer to speak up for your hardships as a law abiding resident. This country has tremendous protections for people living here which is what makes it great. We as an immigrant community need to build our awareness of US history and government if we expect things to change.

Last edited by mantric; 12-13-2007 at 01:59 PM.
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Old 12-13-2007, 02:00 PM
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Default Per Country Limit

Either way, be cautious and thoughtable before you fight against the state

Also, i saw in CNN, for some (who are mexican's also), they served in US military (they are not here legallY) and got the Green Card becoz they shared the nations passion in Iraq.

Think some thing like that here too rather than challenge the state and constitution

If you talk with Caste like in India, may be somewhere down the line, you might ask a state for indians (which is like kashmir for muslims).
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