Dear Colleagues,
The Merage Foundation for the American Dream and the University of California, Irvine are pleased to send you a summary of recent analyses about and news concerning governmental actions or inaction with respect to the ability of graduate students from foreign lands who want to study engineering and science and scientists and engineers who want to work in the U.S. Regrettably, while independent studies by respected scholars continue to show the economic need for the U.S. to provide an inviting environment for foreign students and professionals wishing to go to school or work in the U.S., U.S. policies continue to be relatively restrictive. For example, the gap between demand by U.S. businesses for foreign scientists and engineers and the current number of H1-B visas have caused strategic manpower shortages. Further, national policies combined with regulations and related review processes have led foreign engineering and science students to enroll in non U.S. universities.
Many Congressional and Administration leaders have indicated their desire to permit increasing numbers of foreign students in engineering and science and professionals engaged in engineering and science research to come to the U.S. and, indeed, reside here for extended periods of time. But the results in terms of policy are, at best, uneven. Clearly, the U.S. would gain economically from a consistent sustained set of encouraging welcoming policies. The benefits with respect to our nation’s economy and its historical leadership role internationally in science and engineering would be real and significant.
We know you are interested in the outcome of current discussions in Congress and the Administration. A special thanks to Stuart Anderson, head of the National Foundation for American Policy, “our man in Washington,” for providing key narrative support to develop the updates. We welcome your feedback.
—Paul Merage, Founder and President, Merage Foundation for the American Dream
—Michael Gottfredson, Executive Vice Chancellor and Provost, UC Irvine
—Marshall Kaplan, Executive Director, Merage Foundation for the American Dream
Presidential Candidates Generally Positive on High Skill Immigrants, Despite Rhetoric on Illegal Immigration
No Action on High Skill Immigration as Congress Ends 2007; Advocates See 2008 as Year to Build Support
April 1, 2008 Looms For H-1B Applicants
Science and Technology Alliance Calls for “Removing Barriers to Immigration of Talent”
New Book Calls for Eliminating H-1B Cap
Interview with Immigration Expert Crystal Williams
Presidential Candidates Generally Positive on High Skill Immigrants, Despite Rhetoric on Illegal Immigration
The 2008 presidential campaign, particularly on the Republican side, has seen an unprecedented focus on immigration. While the candidates have concentrated their speeches on illegal immigration, most have endorsed measures to increase legal immigration for skilled professionals.
On the Republican side, Mitt Romney, former governor of Massachusetts said, “H-1B visas are a great source of a brain magnet . . . bringing people into this country who have skill and experience from other countries. I’d rather staple a green card to your diploma and say that if you can get a Ph.D. from one of our great institutions, we’d love you to stay here.”
Governor Huckabee’s immigration plan released in January included a bullet point calling for the U.S. government to “increase visas for highly-skilled and highly-educated applicants.” However, Huckabee’s proposal also calls for eliminating the brothers and sisters category, which would negatively impact the families of many skilled immigrants.
Senator John McCain (R-AZ), who has supported high skill immigration in the Senate, has declared, “… [One] of our greatest sources of talent and brains in this nation came from people from all over the world, who studied here, and decided that they wanted to stay and work here . . . [We] … have to fix this H-1B problem, and we have to make it a lot easier for students from all over the world to come and study at the finest institutions in the world.”
Former Senator Fred Thompson (R-TN) supported measures to increase H-1B temporary visas while serving in the U.S. Senate. Rep. Ron Paul (R-TX) has also come out in favor of increasing the annual limits on H-1Bs.
On the Democratic side, all three of the major candidates have spoken favorably of skilled immigrants.
“I think it is important for us to have available … the talent and the mental capacity we need. So the H-1B visa program is important; it should be expanded, based on the needs that exist,” said former Senator John Edwards (D-NC).
Senator Hillary Clinton (D-NY) said, “… [We] need to get the best minds from the world once again coming to America.”
Barack Obama (D-IL) has also been supportive of skilled immigration. “I support comprehensive immigration reform that includes improvement in our visa programs, including our legal permanent resident visa programs and temporary programs including the H-1B program, to attract some of the world’s most talented people to America.”
No Action on High Skill Immigration as Congress Ends 2007; Advocates See 2008 as Year to Build Support
Congress adjourned in December 2007 without taking action on high skill immigration. In fact, after the failure of comprehensive immigration in June 2007, no significant measure on immigration passed Congress, with the exception of legislation to fund Department of Homeland Security operations.
This leaves advocates of more H-1B visas and green cards to hope for better luck in 2008. However, the prevailing viewpoint is that passing even modest measures this year could be challenging. The Hispanic Caucus has argued that no immigration legislation should pass unless Congress first addresses the issue of undocumented immigrants. Moreover, some legislators, such as Senators Richard Durbin (D-IL) and Charles Grassley (R-IA), have argued that any increase in H-1B visas should be accompanied by highly restrictive labor provisions, some of which could negate the benefits of increasing the visa numbers. Primarily, the Durbin-Grassley provisions would seek to apply to all technology companies rules on recruiting U.S. workers and “no layoff” requirements that now apply only to firms that have committed serious violations or possess a workforce with a high proportion of H-1B visa holders.
Industry sources believe that 2008 may turn out to be a “building” year in which legislators and the public are educated as to the importance of addressing high skill immigration issues—but which sees no significant legislation passed.
April 1, 2008 Looms For H-1B Applicants
Attorneys are warning their clients that all employers who wish to sponsor skilled foreign nationals on H-1B petitions must prepare applications in anticipation that the entire quota will be used up on the first day the government begins accepting petitions, as happened in 2007. The demand for skilled labor in the United States vastly exceeds the supply of H-1B temporary visas, which are limited each year to 65,000, with an additional 20,000 for those graduating with an advanced degree from a U.S. university. A note to clients from the law firm of Paul Hastings said, “Employers should identify employees for whom an H-1B petition must be filed for the government's new fiscal year. H-1B petitions seeking an October 1, 2008 start date may be filed on April 1, 2008. It is imperative that employers mail H-1B petitions on March 31, 2008 for delivery to USCIS on April 1, 2008, as it is anticipated that the H-1B quota will be exhausted immediately, creating the need for a lottery similar to the one last year.”
Science and Technology Alliance Calls for “Removing Barriers to Immigration of Talent”
A recent report from ASTRA, the Alliance for Science and Technology Research in America expresses concerns about America’s ability to innovate in an increasingly competitive world. The report “Riding the Rising Tide: A 21st Century Strategy for U.S. Competitiveness and Prosperity” calls for increased federal funding for science and technology, a regulatory review aimed at fostering a good “business climate for innovation, improving higher education for U.S. scientists and engineers, and better policies toward foreign students and professionals. The report specifically recommends: “The U.S. should strengthen efforts to attract top foreign students and Ph.D.-level professionals in science, engineering and technology. This includes developing a national strategic plan for recruiting top international students, scientists, engineers and technologists, and evaluating the U.S. immigration system to remove barriers to these talented individuals migrating to the U.S.”
The report can found at http://aboutastra.org/pdf/ASTRARisingTide121107.pdf.
New Book Calls for Eliminating H-1B Cap
A new book from Jacob Funk Kirkegaard, a research associate at the Peterson Institute for International Economics in Washington, D.C., argues that America’s restrictive policies towards highly educated immigrants are limiting the capacity for innovation and growth in science and engineering in the United States. The Accelerating Decline in America's High-Skilled Workforce: Implications for Immigration Policy concludesthat immigration is more important than ever to America, since the share of U.S.-born individuals attaining higher education levels has stagnated in recent decades and may soon decline relative to the workforces of other nations.
He writes that green cards are important for keeping skilled foreign nationals in the country, since an estimated 90 percent of employment-based green cards are issued to those already in the United States on temporary visas. However, for that reason, Kirkegaard points out what others have argued as well – that it’s necessary to raise H-1B visa limits to allow skilled foreign nationals to enter and work in the United States in the first place.
The recommendations in the book include eliminating the H-B cap entirely – thereby allowing market forces to dictate the level of visa usage – and streamlining the green card process by doing away with the labor certification process in which employers must demonstrate they advertised or engaged in other forms of recruitment. Kirkegaard’s most controversial recommendations are to establish a bilateral agreement with India on immigration, while also restricting the share on H-1B and L-1 (intra-company transferee) visas to no more than 50 percent for any firm’s U.S.-based labor force.
The book can be found on the Peterson Institute’s website at http://bookstore.petersoninstitute.org/book-store/4136.html.
Interview with Immigration Expert Crystal Williams
In Washington, D.C. there are a handful of people who know a great deal about certain topics, and when it comes to business immigration, Crystal Williams is one of those people. Crystal practiced immigration law, oversaw regulation writing in 2001-2002 at the Immigration and Naturalization Service, and is now Deputy Director for Programs at the American Immigration Lawyers Association (AILA) in Washington, D.C.
Merage Foundation for the American Dream: What are the biggest obstacles today to a more rational policy on high skill immigration?
Crystal Williams: This is an issue on which there should be consensus, because high skilled immigration fuels the economy in multiple ways. However, the political leadership seems to lack the will to address a policy that was set in a pre-Internet, pre-modern tech environment. Both parties’ political leadership are ascribing too much potency to the political narrative claiming that high-skilled visas undermine the opportunities for the U.S. workforce.
The overwhelming weight of evidence points to the contrary: allowing the world's best and brightest to come work for our companies creates jobs for U.S. workers, increases opportunities, and grows the economy to the benefit of all. Yet the fear of political backlash continues to outweigh the power of reason in Congress.
Merage Foundation for the American Dream: What would you most like to see Congress do on business immigration?
Crystal Williams: Set the immigrant and nonimmigrant quotas at realistic levels, then tie them to the true needs of the economy by applying escalators and de-escalators based on actual demand, rather than on some arbitrary number pulled from someone’s ear a couple of decades ago—which is how the current quotas were established.
Merage Foundation for the American Dream: What are the immediate prospects for legislative action on high skill immigration?
Crystal Williams: The best prognosticators in Washington are scratching their heads on this one. One wouldn't expect issues of legal immigration—which is what high skilled immigration is—to generate the ire that issues regarding the undocumented trigger.
The dialogue in Congress and among advocates, frequently suggests no objection to legal immigration. Yet, when anyone tries to improve legal immigration channels, even the most modest reforms concerning visas for skilled workers often get set aside.
For the near-term at least, it appears that the days of quick hitting, isolated fixes to specific immigration programs are gone. All of the pieces of the immigration puzzle have become linked in a way that they never were before. Movement on one policy issue leads to demands for movement on other, equally compelling, issues. I certainly hope that some band-aid high skilled relief is possible to carry us over until the comprehensive reform debate is reengaged, although I suspect it may have to be packaged with other reforms. I have no feel for the legislative viability of such an approach at this time.
Merage Foundation for the American Dream: While the media focuses a great deal on Congress, in fact, regulatory agencies can often play a key role in how easy or difficult it is for employers seeking skilled foreign nationals.
Crystal Williams: That is indeed the case. It is the agencies that decide the individual applications. Too often in recent years, we have seen a “culture of just saying no” within a couple of the agencies that results in the adjudicator saying, “How can I deny this application?” rather than “Is this application approvable?”
Merage Foundation for the American Dream: What are some of the most important regulatory developments on high skill immigration that you’ve seen in the past 12 to 18 months?
Crystal Williams: Most important is the complete lack of regulatory development, at least by the Department of Homeland Security. Of the three agencies involved in the immigration of high skilled workers—U.S. Citizenship and Immigration Services (USCIS), Dept. of Labor, and Dept. of State—only the Dept. of Labor has issued any regulations in the last 18 months with respect to highly skilled workers, and one of the two it issued (the “substitution” regulation – see below) was not well received by the business community. This despite the fact that there are pieces of congressionally enacted legislation, some more than 7 years old, that have never had implementing regulations.
The Labor Department issued a “substitution” regulation in 2007 that banned employers from using [or substituting] labor certifications obtained for one foreign national employee for a different employee. Because the labor certification process had, in the past, taken several years to complete, it was not unusual for an employee that was the subject of that process to leave the employer. Rather than going through the same labor market test again for the same job for a new employee with the same qualifications, employers had been allowed to use the prior application for a new employee. Unfortunately, a handful of attorneys and companies had abused that process by putting together fraudulent applications and, in essence, selling them. However, instead of focusing on those abuses, the DOL chose to ban the practice of substituting employees altogether, thus overreaching in its attempt to shut down the problem. It also, in the same rule, banned employees from paying for their own attorneys in the labor certification process—a curious item for a Federal agency to try to regulate.
The other regulation from the DOL was much more positive. In 2005, DOL implemented a process called PERM, which has succeeded in streamlining the labor certification process in the majority of cases. During 2007, the Department proposed changes to the PERM form that should help correct some of the hiccups in the original process. While not significant from a policy perspective, this development is helpful to keep the process effective.
Merage Foundation for the American Dream: What are some of the changes on immigration policy you would most like to see made by the federal agencies (Labor Department, State Department, and Department of Homeland Security)?
Crystal Williams: My wish list:
- For DOL, to reverse its regulation on substitution of employees and payment of attorneys’ fees. (See above.)
- For the Department of State, to waive more interviews for nonimmigrant visas.
- For DHS’ component agency, USCIS, to put in place a lottery system for H-1Bs that do not necessitate complete preparation of the application before “entering” the lottery. [The “lottery system” was used in 2007 when an excess of qualified applications were received on the first day of eligible filing for H-1B petitions.] And to find a way to reduce the lengthy waits for security checks to clear.
Merage Foundation for the American Dream: Over the long term, what do you think the prospects are that congress and the regulatory agencies will adopt the right immigration policies for American competitiveness?
Crystal Williams: I don’t think we’ll ever see a perfect policy—the process of policy-making is too imperfect for that. But I do believe that once the election is over, serious people will give the question serious thought and some significant improvements can be made.
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