Report Regarding Highly Skilled Immigrants (H1-B Visas)

The American Immigration Law Foundation issued a link to a recent report regarding quotas on visas for highly skilled immigrants. Surprisingly, the annual number of such visas allowed in the United States is now only 65,000. The report discusses the impact that this quota has on the international competitiveness of the United States in the global economy. The sumary of the report is set forth below.

U.S. Immigration Policy in Global Perspective:International Migration in OECD Countries
by David L. Bartlett, Ph.D.

REPORT SUMMARY

The United States possesses a number of competitive assets in the global war for talent: most notably, its huge and flexible labor market and an abundance of leading-edge multinational corporations and world-class universities. However, the United States also faces growing competition in the global labor market from other countries within the Organization for Economic Cooperation and Development (OECD), as well as from the expanding economic opportunities available in the home countries of Indian and Chinese professionals who constitute a vital talent pool for U.S. high-tech companies.

These trends underscore the need to revamp U.S. immigration policies to make them more responsive to the demands of an increasingly competitive global economy. Yet the quota-based immigration system of the United States diminishes the country’s ability to sustain, let alone expand, inflows of high-skilled immigrants.

The optimal remedy for this defect in U.S. immigration policy is to replace the H1-B visa program for highly skilled foreign professionals with a quality-selective regime along the lines of the point-based systems introduced in Australia, Canada, and New Zealand. The United Kingdom is moving in this direction, away from a work-permit regime to a multi-tiered system that would entitle high-skilled immigrants to work for any British employer or to set up their own businesses in the country. However, the political environment in the United States—where homeland security concerns remain acute five years after September 11th and the furor over undocumented immigration clouds the separate issue of skilled immigration—provides little cause for optimism that such a policy reform will soon materialize.

Among the findings of this report:

• The more educated share of working-age immigrants increased significantly in several OECD countries during the 1990s, especially Ireland, the United Kingdom, Luxembourg, and Finland.
• The success of educated immigrants in securing U.S. jobs commensurate with their skills varies widely by country of origin, ranging from 76 percent of educated men from India to 25 percent of educated Moroccan men.
• Between 2000 and 2005, the U.S. foreign-born population from India experienced the most dramatic increase (39.8 percent), followed by Peru and Honduras.
• Among immigrants arriving in the United States from 2000 to 2004, 12.1 percent held advanced degrees (compared to 10.3 percent of those arriving between 1990 and 1999), while 22.2 percent had bachelor’s degrees (compared to 17.3 percent of those arriving during the 1990s).
• While China, South Korea, and Japan have increased their funding for research and development (R&D) significantly, especially since 9/11, U.S. R&D funding in the physical sciences and engineering has declined or remained stagnant since the early 1990s.
• In 2004, Congress allowed the annual H1-B quota to revert from 195,000 to its 1990 level of 65,000, which represents just 1 percent of the U.S. science and engineering workforce and has been filled before the start of each fiscal year since it took effect.

Federal Jurisdiction--Diversity of Citizenship

South Carolina law applies in all traditional personal injury cases. This type of state law is under the broad legal category of civil wrongs called tort law. Even though South Carolina law governs a tort case, sometimes a Defendant will be allowed to have the case removed from South Carolina State Court to federal court based on diversity of citizenship between the parties.

In serious cases, Defendants will usually attempt this procedural removal maneuver whenever possible, because generally speaking, federal judges are much more prone to grant a Defendant "summary judgment." Summary judgment deprives the injured party of her right to a jury trial and results in a defense judgment. When summary judgment is granted, the case is just decided in favor of a defendant based on paperwork filed with the Court and no live testimony--such as would happen at a trial--is taken before the Court.

Unlike State courts which have broad jurisdiction over cases brought before them, federal courts are considered to be courts of limited jurisdiction. Therefore, the types of cases that can be presented to a federal trial court are limited by statutes passed by Congress.

There are a number of jurisdictional statutes, but for most State tort cases brought in State Court, the diversity jurisdiction statute is the law that governs a federal court's right to hear the case.

This statute is found at 28 U.S.C. § 1332. The statute states, in part, as follows:

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — . . . citizens of different States;

The Supreme Court states that federal jurisdiction predicated upon 28 U.S.C. § 1332(a) requires complete diversity between all plaintiffs and all defendants. See Lincoln Property Co. v. Roche, 546 U.S. 81 (U.S. 2005) (citing Strawbridge v. Curtiss, 3 Cranch 267). When a corporation is a defendant, Section 1332(c)(1) states, “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1).

A corporation, formed by paying fees and filing paperwork in a State Secretary State's office, is an organization whose primary purpose is to protect investors from personal liability, i.e., to help individuals evade personal responsibility for wrongs they commit. The law states that a corporation is considered a legal fiction or "an entity."

“For diversity purposes, a corporation maintains a dual citizenship. A corporation is a citizen of the state in which it was incorporated, and the state in which it has its principal place of business. 28 U.S.C. § 1332(c).” Clipper Air Cargo v. Aviation Products, 981 F. Supp. 956, 958 (D.S.C. 1997). Defense lawyers often make efforts to prove their corporate client's principal place of business is another state other than South Carolina.

Therefore, one tactic South Carolina Plaintiff attorneys follow to preclude federal jurisdiction before a case is removed, is to identify all South Carolina Defendants as parties to the lawsuit. By including a South Carolina Defendant in the legal action, a foreign corporate defendant will not be able to show the federal court that there exists "a complete diversity" of citizenship between the parties. As long as one of the legitimately named Defendants is a South Carolina citizen, the case, if removed, must be remanded to State Court because the Federal District Court would lack jurisdiction.

Immigration Reform: President Bush

On January 23, 2007, President Bush gave his State of the Union speech last night. In his speech, he addressed the issue of immigration reform. His proposed policy includes the following aspects taken from the White House web site:

To Secure Our Border, We Must Create A Temporary Worker Program

America's Immigration Problem Will Not Be Solved With Security Measures Alone. There are many people on the other side of our borders who will do anything to come to America to work and build a better life. This dynamic creates tremendous pressure on our border that walls and patrols alone cannot stop.

As We Tighten Controls At The Border, We Must Also Address The Needs Of America's Growing Economy. The rule of law cannot permit unlawful employment of millions of undocumented workers in the United States. Many American businesses, however, depend on hiring willing foreign workers for jobs that Americans are not doing.

To Provide A Lawful Channel For Employment That Will Benefit Both The United States And Individual Immigrants, The President Has Called For The Creation Of A Temporary Worker Program. Such a program will serve the needs of our economy by providing a lawful and fair way to match willing employers with willing foreign workers to fill jobs that Americans have not taken. The program will also serve our law enforcement and national security objectives by taking pressure off the border and freeing our hard-working Border Patrol to focus on terrorists, human traffickers, violent criminals, drug runners, and gangs.

The Temporary Worker Program Should Be Grounded In The Following Principles:

• American Workers Must Be Given Priority Over Guest Workers. Employers should be allowed to hire guest workers only for jobs that Americans have not taken.
• The Program Must Be Truly Temporary. Participation should be for a limited period of time, and the guest workers must return home after their authorized period of stay.
• Those who fail to return home in accordance with the law should become permanently ineligible for a green card and for citizenship.
• Participation Should Fluctuate With Market Conditions. When the economy is booming, and there are not enough American workers available to help businesses grow, the program should be open to more participants. But when times are tough and Americans struggle to find jobs, the economy cannot and should not support as many guest workers.

We Must Bring Undocumented Workers Already In The Country Out Of The Shadows

Comprehensive Immigration Reform Must Account For The Millions Of Immigrants Already In The Country Illegally. Illegal immigration causes serious problems, putting pressure on public schools and hospitals and straining State and local budgets. People who have worked hard, supported their families, avoided crime, led responsible lives, and become a part of American life should be called in out of the shadows and under the rule of American law.

The President Opposes An Automatic Path To Citizenship Or Any Other Form Of Amnesty. Amnesty, as a reward for lawbreaking, would only invite further lawbreaking. Amnesty would also be unfair to those lawful immigrants who have patiently waited their turn for citizenship and to those who are still waiting to enter the country legally.

The President Supports A Rational Middle Ground Between A Program Of Mass Deportation And A Program Of Automatic Amnesty. It is neither wise nor realistic to round up and deport millions of illegal immigrants in the United States. But there should be no automatic path to citizenship. The President supports a rational middle ground founded on the following basic tenets:

No Amnesty. Workers who have entered the country illegally and workers who have overstayed their visas must pay a substantial penalty for their illegal conduct.

In Addition To Paying A Meaningful Penalty, Undocumented Workers Must Learn English, Pay Their Taxes, Pass A Background Check, And Hold A Job For A Number Of Years Before They Will Be Eligible To Be Considered For Legalized Status.

Any Undocumented Worker Seeking Citizenship Must Go To The "Back Of The Line." The program should not reward illegal conduct by making participants eligible for citizenship ahead of those who have played by the rules and followed the law. Instead, program participants must wait their turn at the back of the line.

We Must Promote Assimilation Into Our Society By Teaching New Immigrants English And American Values

Those Who Swear The Oath Of Citizenship Are Doing More Than Completing A Legal Process – They Are Making A Lifelong Pledge To Support The Values And The Laws Of America. Americans are bound together by our shared ideals, our history, and the ability to speak and write the English language. Every new citizen has an obligation to learn the English language and the customs and values that define our Nation, including liberty and civic responsibility, appreciation for our history, tolerance for others, and equality. When immigrants assimilate, they advance in our society, realize their dreams, and add to the unity of America.

New Citizens Need Guidance To Succeed. The Office of Citizenship is creating new guides for immigrants and introducing a new pilot civics examination designed to foster a deeper understanding of civic virtues and the founding ideals. The President's Task Force on New Americans is fostering volunteerism through volunteer.gov and exploring partnerships with local organizations. Public libraries and faith-based and community groups will be encouraged to offer English language and civics instruction to immigrants who are seeking to make America their home.

Insurance Company Claims Adjusting Duties

South Carolina has statutes which require automobile insurance companies to treat people with claims in a fair and reasonable manner. The statute that relates to how adjusters must handle claims is S.C. Code Ann. § 38-59-20. Under Section 38-59-20, the following acts are some of those defined by statute as improper claims practices:

• Knowingly misrepresenting to insureds or third-party claimants pertinent facts or policy provisions relating to coverages at issue or providing deceptive or misleading information with respect to coverages.
• Not attempting in good faith to effect prompt, fair, and equitable settlement of claims, including third-party liability claims, submitted to it in which liability has become reasonably clear.
• Offering to settle claims, including third-party liability claims, for an amount less than the amount otherwise reasonably due or payable based upon the possibility or probability that the policyholder or claimant would be required to incur attorneys' fees to recover the amount reasonably due or payable.
• Invoking or threatening to invoke policy defenses or to rescind the policy as of its inception, not in good faith and with a reasonable expectation of prevailing with respect to the policy defense or attempted rescission, but for the primary purpose of discouraging or reducing a claim, including a third-party liability claim.
• Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies, including third-party claims arising under liability insurance policies.
• Any other practice which constitutes an unreasonable delay in paying or an unreasonable failure to pay or settle in full claims, including third-party liability claims, arising under coverages provided by its policies.

Insurance Companies owe a fiduciary and statutory duty to their insureds to fairly adjust their claims. The process of making a claim to an insurance company should not be an adversarial process. However, because insurance companies are profit-driven organizations, it often seems to be difficult for an insured to make a fair and full recovery .

Monetary Damages: Who Gets the Money?

The purpose of any personal injury lawsuit against a careless party is to recover monetary damages for an injured person. The monetary amount is intended only to compensate the person, or restore them to the position in which they would have been had the injury not happened.

Monetary damages may be awarded to a person for a number of different types of harms. In most cases, the most concrete of these categories of damages is compensation for medical bills related to treatment caused by the carelessness.

The medical bills of many people are initially paid by the health insurance company. During the course of a trial, jurys often become aware of the fact an injured person is covered by health insurance. Usually, testimony about lost work, or from coworkers is offered, and the fact an injured person is employed is elicted during the testimony. It is not hard for people to figure out the person is covered by insurance even if evidence about it is excluded by a judge. Moreover, many defense lawyers suggest the presence of health insurance or otherwise elicit evidence to increase a jury's awareness of the presence of it. Defense lawyers know that a jury's awareness about a person's health insurance coverage tends to result in reduced damages awards.

Why are verdicts lower when juries assume that the person's medical bills were paid for by the health insurance company? Juries are simply resistant to awarding compensation when they believe doing so creates what they percieve to be a double recovery, an injustice. They figure why should we award this person the full amount of her medical expenses when her bills were already paid by her insurance company? They figure, even if we do make such an award, the the full award of medical expenses is overcompensating and the verdict must be reduced in other areas, such the amount of her compensation for pain and suffering.

However, when juries speculate about the impact of insurance paying medical bills they make a wrong assumption. They assume the compensation in the verdict will be given to the injured peson and that the health insurance company will not get any of money awarded. This assumption is very, very wrong.

It is wrong because almost all health insurance plans now have the right of reimbursement from any verdict. Check out your own policy and look for a paragraph often called "subrogation." Subrogation provisions give the health insurance company a form of super lien. Subrogation means the health insurance company is paid first from any verdict, sometimes even before the person can pay her attorney or the costs of prosecuting the lawsuit.

Therefore, when a jury resists awarding full medical expenses to an individual because of a reluctance to give the person a double recovery, it actually creates a windfall for the careless defendant and undercompensates the injured person.

More will be written about the right of subrogation in this blog. However, as an inital matter, we will just introduce this idea of subrogation and address the specifics of this phenomenon at a later date.

Settlements for Minors

Often, a child is injured in a motor vehicle collision. When this happens, a mother or father may seek recovery of damages on behalf of the child, or minor. When and if a settlement on behalf of a minor is reached, the money that is delivered on the child's behalf, often to the mom or dad, is considered to be the property of the injured child.

The way that child's money is spent is limited by South Carolina statute. Failure to comply with the South Carolina statute could expose the parent to a claim by the child for misappropriation of the funds. If the settlement is large enough to be under the management of a Probate Court, improper spending of the child's settlement fund could result in sanctions by the court.

Section 62-5-103 of the South Carolina Probate Law explains in detail the obligation of the parent to preserve their child's money, and has some details about what the money cannot be spent upon. (These same rules apply to incapacitated persons.) It states, in part, as follows:

Money or other property received on behalf of a minor or incapacitated person may not be used by a person to discharge a legal or customary obligation of support that may exist between that person and the minor or incapacitated person. Excess sums must be preserved for future benefit of the minor or incapacitated person, and a balance not used and property received for the minor or incapacitated person must be turned over to the minor when he attains majority or to the incapacitated person when he is no longer incapacitated. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application of it.

Therefore, the child's settlement money cannot be used to help pay for such things as rent, groceries, clothing, medical expenses, or similar routine expenses even if the child would indirectly or directly benefit from these expendures. This Rule exists because those type of expenses are already the usual and customary obligations that go along with a person's parental duties.

As stated in the statute, absent unusual circumstances, any excess money that is not spent on legitmate expenditures should be given to the child when he or she becomes 18 years old.

Immigration Reform

There is a consensus in the United States today that our immigration system is broken. The question is "What is required to fix it?"

It is clear that more of the same will not work.

There are an estimated 11 million undocumented persons living and working in the United States today. Smugglers, traffickers and criminals preying on undocumented migrants have a growing negative impact on border communities.

Nearly 2,000 migrants have died trying to cross our border from the south from 1998 through 2003, and nearly 400 migrants continue to die at our borders every year.

America needs comprehensive immigration reform that will make immigration safe, orderly and legal. Such reform must provide three things:

• an opportunity for people already living and working here to earn permanent legal status;
• a new temporary worker program with adequate labor protections, so that essential workers can enter the U.S. safely, legally and expeditiously;
• backlog reductions in family-based immigration so that families can unite in a timely way.

Proposals that fail to embrace these components and seek only to increase enforcement of the current system will only exacerbate current problems.

Congress may enact harsh enforcement measures, such as the Sensenbrenner bill passed in the House of Representatives, which do nothing to increase our nation's security. Such measures only increase the pressures on hardworking but undocumented immigrants and force them to seek dangerous paths of entry to the U.S., where increasing numbers will die attempting to cross. Or Congress can engage the debate and enact realistic and comprehensive reform, which will ensure the U.S. remains a nation of immigrants in the decades to come.

AILA InfoNet Doc. No. 06092773 (posted Sep. 27, 2006)

Proving Damages to a Greenville Jury

Greenville, South Carolina, is one of the most conservative jurisdictions in the United States. The people who serve on juries here are not going to award millions for spilling hot coffee on yourself in a fast food drive through. Greenville juries are skeptical, and they demand that if you are bringing a personal injury case before them, that you have sufficient proof to meet your burden.

This is the great challenge (or burden) for the Greenville County trial attorney.

Yes, I said, "burden." The plaintiff has the burden of proof. A lawyer who relies on sympathy in Greenville, while just showing fault, introducing medical bills, and a video of the treating doctor, does a disservice to his client. That kind of proof will probably not be enough to generate an award of a fair and just amount of damages. If you are lucky, you might get a verdict equal to the medical bills.

A plaintiff who wishes to win her case and achieve a fair award of damages in Greenville must present her case with sufficient evidentiary weight to convince a group of twelve conservative upstate citizens that she has a legitimate case for such an award.

How does a trial attorney learn how to do this for his clients? For me, I like to rely upon authoritative literature for guidance. In this case, Deuteronomy 19:15 provides the answer.

One witness cannot establish any wrongdoing ... against a person, whatever that person has done. A fact must be established by the testimony of two or three witnesses.

Thus, a lawyer for the injured person should find at least two or three damages witnesses. These are the people who know the injured person and can provide their testimony about what has happened to their husband, child, friend, or coworker. These witnesses should be prepared to provide detailed testimony about specific events or observations that illustrate the harm caused to the person. Perhaps she is in pain. The witness should testify about his truthful observations of the person ... grimacing, complaining, limping, groaning, inability to do tasks or activities that they could do before. Even more persuasive is when witnesses describe the injured person's strivings to overcome her injuries; the grueling trial of physical therapy, the struggle to get back to work, or perhaps the decision to forgo medication and endure pain to avoid side effects of prescribed medicines.

These damages witnesses will usually be cross-examined by the defense lawyers about their bias toward the injured party. However, if two (or better yet, three or four witnesses) provide testimony about the facts of damage, well then you have a chance to meet your burden of proof in a Greenville County jury trial.