Bespoke Visas for the Irish, Aussies, and Disney

By David North, December 18, 2011

One of the avoidable problems with the U.S. immigration system is the presence of too many highly specialized visa programs.

Each is bespoke (tailored) to the very particular needs of some narrow, powerful interest. Each is created by Congress.

Each must have its own set of forms, regulations, policy memoranda, and, if any petitions are denied – its own appeals channel. All of this is expensive.

The multiplicity of these visa types, as we noted in an earlier blog, is extremely costly in terms of agency time and money. Yet these costs are heaped on the taxpayers or the users of other visas, are completely hidden, and rarely discussed. And it is all totally in the power of the Congress to control these extravagances.

These thoughts were stimulated by two factors: Sen. Charles Schumer's (D-NY) recent decision to try to create a new visa for the Irish, still a power in New York politics, and the publication of a very useful law journal article on the "Disney Visa."

Let's turn to Schumer first and his latest attempt to open America's door to more migrants.

Schumer, one must admit, is pretty good at what he does.

He is a life-long legislator. The fall after getting his degree from Harvard Law School in the summer of 1974, he was elected to the New York State Assembly. Six years after that he went to the U.S. House of Representatives, both seats being in Brooklyn. Since January 1999 he has been in the U.S. Senate, and is chair of the Senate Immigration Subcommittee.

He played a major role in the passage and shaping of the last comprehensive immigration reform bill, the Immigration Control and Reform Act of 1986, while a member of the House immigration subcommittee. He was an ardent supporter of IRCA's amnesty program.

While I was unable to pry a copy of the proposed legislation out of Schumer's office, the expatriate Irish press in the States says that the senator is trying to make it easier for more Irish to come to the U.S., as nonimmigrants. Further, as the Irish Voice newspaper in New York reports, the proposed bill would make it possible for some Irish illegals in the U.S. to convert to a legal nonimmigrant status.

The devil, as we all know, is in the details, and without the text of the bill all we have to go on are reports by the Irish Voice and by Dublin's Irish Times, two publications that do not specialize in immigration matters.

Both publications speak in terms of nonimmigrant visas for up to 10,000 Irish each year, and both say the proposed bill is modeled on the E-3 nonimmigrant program, whose benefits are limited to Australian citizens. If so, let me explain why the proposal would not do much for the Irish.

The E-3 nonimmigrant visa is another bespoke program, this one said to have been created by the Bush administration to thank the Australian conservative government of the day for coming to our aid in Iraq. That war is over, George W. Bush is out of office, the Down Under troops are long gone, but the E-3 program remains alive and well.

That program is essentially a way for Australians who would be eligible to come to the U.S. as high-tech workers under the H-1B program to do so without reference to the numerical ceilings in that program. The E-3 scheme also allows the spouses of E-3s to work legally, while spouses of H-1B workers cannot do so. Further, the E-3 visas can be renewed without limit. So, the Aussies get a slightly better deal than, say, comparable people from India or China.

While the E-3 program has a cap of 10,500 visas a year, the greatest extent to which it has been used recently came in 2010, when the State Department reported that it had issued 2,175 visas to E-3 workers. (Visas for E-3 dependents are not counted toward the numerical limit nor, apparently, are renewals.)

The trouble with the use of this model for the Irish is that relatively few of them – as with Australians – meet the qualifications of the H-1B program, and there has been relatively little traditional use of H1-B program for residents of Ireland.

Perhaps when the Schumer bill actually emerges it will deal with a broader population than the E-3 program does.

While the details on the Schumer bill are murky, the descriptions of the Q nonimmigrant program, yet another bespoke visa operation, are made crystal clear in a splendid law review article that appeared recently.

Entitled "The Wonderful World of Disney Visas," it was written by Kit Johnson, a visiting professor at the University of North Dakota's Law School; it appeared in the current issue of the Florida Law Review, and can be seen here.

Prof. Johnson makes it clear that the Q, or cultural exchange nonimmigrant visa, was invented and pushed through Congress by Disney in order to provide its amusement centers with inexpensive, foreign workers. (Disney also makes use of the J-1 summer work travel program, whose abuses (not specifically those of Disney) are explored in detail by my colleague Jerry Kammer in a four-part series that continues Monday.)

Getting back to the Q program, it pushes aside thousands of U.S. workers all the time, because Congress has allowed the Q program operators to avoid Social Security, Medicare, and federal unemployment insurance taxes on these workers. Further, while Disney pays into pension plans for resident workers, it does not do so for Q workers. Finally, the basic wages are lower for the Q exchange workers, often college students from overseas, because they are excluded from the collective bargaining agreements that protect other Disney workers.

As a result, Prof. Johnson estimates that dealing with just direct wage payments, Disney saves upwards of $15 million a year at its Florida location alone.

The Florida Law Review article and Jerry Kammer's series are exceptions to the general rule; usually the only people speaking about the bespoke foreign worker programs are the proponents thereof.