Editing Eilberg Amendment (1976) (section)

==Eric's 2003 Sloan Workshop Report==

The report "[http://users.nber.org/~sewp/references/archive/weinsteinIssuesofLegislation.pdf Issues of Legislation and Merit in Scientific Labor Markets]," authored by Eric Weinstein, critically examines the Eilberg Amendment's impact on academic labor markets. It argues that the amendment allowed universities to bypass standard labor certification requirements, treating foreign academic hires with exceptional leniency compared to other sectors. The report highlights the unintended consequences of these policies, such as disadvantaging qualified American researchers by allowing universities to prefer marginally more qualified foreign candidates. This critique differs from the typical justification for these policies, which emphasizes the need for exceptional talent in academia.

===The Sheepherder Provision===

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We now discuss the specific provisions added by the Eilberg amendment and the Immigration Act of 1990.

'''The Sheepherder Provision: Special Handling'''

It is a little known fact that in 1952 and 1954, congress was moved to declare a shortage of Basque Sheepherders in the western United States. Since that time, an employers association of ranchers (known as the 'Western Range Association') has enjoyed anomalous immigration privileges in recognition of the hardship posed by the alleged shortage conditions.
This would be little more than a footnote to history except that in 1976, the Association of American Universities (AAU) succeeded in inserting (almost unnoticed) a parenthetical clause into Title 8 of the U.S. Code. This clause had the effect of removing the universities from the uniform labor certification requirements and placing them within the 'Special Handling' regulation reserved for immigrant shepherds.

The result of this switch was that Universities were granted unique privileges found nowhere else in the economy. For example, qualified American researchers are distinguished in that they alone can be technically reclassified (for purposes of labor certification) as 'unavailable for work' in the event that a university succeeds in portraying a foreign applicant as even marginally more qualified.

Curiously, in recent years the AAU has claimed that labor certification meaningfully protects American researchers from unfair university hiring practices. Publicly responding to charges that universities lower their labor costs by using special immigration exemptions, AAU president Cornelius Pings wrote:

"This is simply not true. ... in most cases where foreign scientists are hired using permanent work visas, universities and businesses are required to prepare detailed labor certifications, which need to be approved by the Department of Labor before an individual can be hired. These certifications must demonstrate that the person sought is being paid at or above the prevailing wage for the position."
-Cornelius Pings, Letter to the Editor WSJ, Sept. 1996.

This is not easy to reconcile with private correspondence between the former AAU president and the sponsor of the 1976 Eilberg Amendment:

"...you have circumvented the primary rationale for denial of labor certification: that an unlimited supply of American manpower exists whose employment prospects are being usurped by alien labor."
-John Osvald, AAU President, Letter to Joshua Eilberg, Nov. 1975.
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===The Shortage Provision===

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'''The Shortage Provision: "Schedule A"'''

While a sustained labor shortage may be nothing more than market pressure on employers to improve wages and working conditions, short term labor shortages can occur in skilled occupations for the duration of the time needed to train new workers. These temporary shortages could conceivably last several years in fields requiring extensive training.

Recognizing the legitimate needs of employers who on rare occasions may face such emergencies, the United States maintains a (very) short list of occupations experiencing labor shortages; this list is known as the 'Schedule A' list of shortage occupations.

Despite the unusual levels of unemployment and underemployment which currently affect young researchers, colleges and university employers have been listed on Schedule A as suffering from shortages of "college and university teachers of exceptional ability" for the last 20 years following the passage of the Eilberg amendment in 1976-77. Even more surprising is that under the provisions of 'Eilberg', colleges and universities are apparently mandated at the level of regulation to be listed as shortage afflicted in perpetuity and without regard to future labor market conditions.
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