November 2006 Bulletin on Foreign Scientists and Engineers

Merage Foundation for the American Dream and the University of California, Irvine

Dear Colleagues:

Our first Attracting Talent newsletter from last June focused on issues concerning admission of foreign students as well as foreign scientists to the U.S. to study and work. You may view a PDF of the newsletter here. We would also be happy to mail you hard copies.

You will recall that we promised both an annual newsletter and occasional e-mails to update you on the status of the recommendations of the Leadership Forum held at the University of California, Irvine on October 16 and 17, 2005. The Forum's participants put forth several proposals to permit more foreign scientists and engineers as well as graduate students in science and engineering to the U.S. The proposals, for the most part, were incorporated in the recent Senate immigration bill which, as you know, was not enacted in this past Congressional session. 

This e-mail describes the denouement of the Senate legislation and other actions by the Administration and Congress. The content was developed for the Foundation and UCI by Stuart Anderson, Stuart Anderson, Executive Director of the National Foundation for American Policy. We hope you find the e mail helpful and would welcome your response.

Paul Merage, Founder and President                             
Merage Foundation for American Dream     

Dr. Michael Gottfredson, Provost
University of California, Irvine                                 

Marshall Kaplan, Executive Director 
Merage Foundation for American Dream 

Table of Contents

• Immigration Deadlock Prevents Action on High Skill Immigration, International Students
• Premium Processing Finally Allowed for Employment-Based Green Cards
• Competitiveness Index Drops U.S. to 6th Place
• Comptroller General Holds Forum on “Global Competitiveness: Implications for the Nation’s Higher Education System”  

• Green Card Quota Problems Persist  

Immigration Deadlock Prevents Action on High Skill Immigration, International Students

The deadlock over illegal immigration took with it an unlikely casualty – legislative improvements to reforms of high-skill immigration regulations. Prior to recessing for the November elections, Congress failed to reconcile competing House and Senate bills on immigration. These bills focused primarily on illegal immigration. The key sticking point remained how to treat undocumented immigrants now living in the United States. The House of Representatives passed an enforcement-only bill and refused to entertain a Senate-passed bill that included a temporary worker program to provide a market mechanism to address future labor needs for lesser skilled jobs and a path to lawful permanent residence (a green card) for those unlawfully in the country.

The business and academic community was particularly disappointed because lack of progress on the broader legislation doomed efforts to expand the number of H-1B temporary visas and green cards for skilled immigrants, as well as other measures designed to make it easier for international students to stay and work in the United States.

For the business and academic community, the only hope remaining for this calendar year is to aim for more narrow legislation to be included in a “must-pass” appropriations bill after the November elections. At this point, nobody knows how extensive such a post-election “lame duck” session will be or what more narrow legislation would look like. Business lobbyists looking at past efforts for narrow relief could wind up disappointed, since such measures have included only temporary relief in the form of a three-year increase in the annual allotment of H-1B temporary visas for skilled foreign professionals. Such an action would fill an immediate need. U.S. employers have exhausted the supply of H-1B visas in 9 of the past 11 fiscal years, including before the start of the past three fiscal years. However, such a narrow measure would leave broader reforms off the table. Businesses and universities, as well as would-be immigrants, also hope to gain some relief on green card numbers.  Current waits exceed 5 years for many employment-based immigrants.

Most of the key high skill and international student provisions contained in the Senate-passed immigration bill are the same as those recommended in an October 2005 Leadership Forum on international graduate students in science and engineering convened by the Merage Foundations and the University of California, Irvine. Among the reforms advocated in the final report of the Leadership Forum that were included in the Senate bill are measures exempting international student applicants from requirements that they prove or show an intent to return from their home country before being issued a visa; expanding the number of H-1B temporary visas and green cards for skilled immigrants; not counting against the annual green card limit the spouses and children of the principal sponsored employment-based immigrant; allowing employers to pay an extra premium processing fee for employment-based immigrant processing; and streamlining the process for international graduate students from U.S. universities to obtain green cards.

The prospects of gaining approval for all of these measures in a “lame duck” session are slim. Even the passage of more limited provisions, such as a temporary increase in H-1B or green card quotas, remains uncertain.

The final version of S.2611, the Senate-passed immigration bill included language that:

• Raises the annual limit on H-1B visas from the current 65,000 to 115,000. It includes a provision to raise the cap by 20 percent in any year when the limit was reached the prior fiscal year. Also, it allows those eligible for H-1B visas who obtained a graduate degree or higher to be admitted outside the annual limit, an expansion from the current exemption that is now limited to 20,000 a year and only to those with a graduate degree from a U.S. university.
• Increases the annual green card limit for employment-based immigrants from the current 140,000 to 450,000 for the first 10 years and 290,000 a year thereafter. Also, spouses and children of the principal immigrant would no longer be counted toward the numerical limitation. However, the total of principals and dependents would not be able to exceed 650,000 in a year. Lesser skilled workers are limited to 30 percent of the annual green card allotment.
• Establishes new categories of individuals who can obtain skilled employment-based green cards outside the annual numerical limitations. These include individuals who have earned a master’s degree or higher from a U.S. university, those awarded medical specialty certification based on post-doctoral training and experience in the U.S., individuals who receive a “national interest waiver” in the employment-based category, and “aliens who have earned a master’s degree or higher in science, technology, engineering, or math and have been working in a related field in the United States in a non-immigrant [temporary] status during the 3-year period preceding their application for an immigrant visa.” Also, until 2017, those designated in shortage occupations by the Secretary of Labor, known as “Schedule A” occupations, can obtain a green card without being subject to the annual numerical limitations. This would benefit primarily foreign nurses.
• Requires the Department of Homeland Security to establish a fee for “premium processing” of employment-based immigrant petitions, which would allow employers to pay a higher fee in exchange for quicker processing for employees for green cards. This is already permitted for H-1B petition processing.
• Establishes a pre-certification process to “enable an employer to avoid repeatedly submitting documentation that is common to multiple petitions.”
• Eliminates the requirement for international students pursing a full course of study in math, engineering, technology of sciences that they must prove intent to return to their home country after completing their degree in the United States.
• Extends the current period of Optional Practical Training for international students from 12 to 24 months.

Premium Processing Finally Allowed for Employment-Based Green Cards

Recently U.S. Citizenship and Immigration Services took a small step toward improving the system for skilled immigration by allowing employers or individuals to pay a $1,000 “premium processing” fee to speed a key stage in employment-based green card applications. Allowing employers to pay a premium processing fee for employment-based immigrant processing was one of the recommendations of the October 2005 Leadership Forum on international graduate students in science and engineering convened by the Merage Foundation for the American Dream and the University of California, Irvine.

When an individual is sponsored for an employment-based green card (permanent residence), he or she generally must first receive labor certification from the Department of Labor, except for those filing under the highest immigration preferences. The second step in the green card process is to file an I-140 petition with U.S. Citizenship and Immigration Services, the approval process for which has varied from periods of weeks to even years, depending when and where a petition was filed. The third step is to either adjust one’s status to permanent resident in the United States or gain immigrant processing at a U.S. consulate abroad – but only if a green card number is available under the annual employment-based limits of 140,000.

Starting August 28, 2006, the immigration service began allowing applicants in the employment-based Skilled Workers (third preference) category to pay a $1,000 fee to guarantee processing of their case (the I-140 petition) within 15 calendar days. On September 25, 2006, this was expanded to include high skilled employment-based immigrants in the first preference (Priority Workers, including Outstanding Professors and Researchers) and second preference (Members of the Professions Holding Advanced Degrees or People with Exceptional Abilities). Premium processing was also expanded for unskilled workers in the 3rd preference. In the past, the ability to pay a fee for faster service was limited primarily to temporary visa categories, such as H-1B and L-1 visas (for intracompany transferees).

Immigration quotas that result in waits of five years or more for many skilled immigrants limits the full positive impact of premium processing. However, the ability to pay a fee to gain action on one’s case can help those stuck in the green card backlog, according to Crystal Williams of the American Immigration Lawyers Association. First, under the way U.S. Citizenship and Immigration Services interprets the law some H-1B visa holders cannot stay past their six-year limits without the approval of an I-140 petition from the service. It may be worth it for employers to pay $1,000 for quick processing if it ensures valued employees can stay in the country while waiting for their green card. Second, once U.S. Citizenship and Immigration Services approves an I-140, it is much easier for individuals to take advantage of green card “portability” under the law, which allows applications and a place in line for green cards to be taken up by another employer.

While instituting premium processing does not solve the broader problems with America’s skilled immigration system, it is an important incremental step in building an immigration system that better serves the needs of talented people, U.S. employers and the American economy.

Competitiveness Index Drops U.S. to 6th Place

A new Global Competitiveness Index dropped the United States to 6th place in 2006, down five notches from its first place ranking in 2005. The index is produced by the World Economic Forum, a nonprofit organization based in Geneva, Switzerland. A team of economists uses a variety of measurements to compile the rankings. This year, the team ranked Switzerland, Finland, Sweden, Denmark and Singapore in front of the United States.

The rankings focused on institutions, macroeconomic policies, education and other factors. While economists would agree on most of the items used in the rankings, some would differ, for example, on how much weight to give a country’s budget deficit.

The report issued a warning of interest to American leaders interested in making it easier for skilled individuals to come to the U.S. Citing the U.S. business sector’s capacity for innovation, the report notes, “The overall high levels of sophistication of the business community (ranked 8th) ensure that much of this innovation is translated into productive business activity. However, given that all of this activity requires a critical mass of highly qualified workers, there is a danger that the restrictive visa requirements implemented post 9/11 present a non-negligible risk to the economy’s ability to maintain a growing talent pool. If the United States does, indeed, begin to face important talent shortages in the future, we would expect this to have negatives repercussions on the economy’s competitiveness.”

A copy of the Global Competitiveness Index can be found by clicking here:

Comptroller General Holds Forum on “Global Competitiveness: Implications for the Nation’s Higher Education System”         

Recently, the Comptroller General of the United States (and head of GAO) David Walker held a more than five-hour forum on international students and U.S. competitiveness. The closed “off the record” event was held September 19, 2006 in Washington, D.C. and featured 24 participants, including representatives from the departments of Education, State, and Homeland Security, as well Congress, academic associations, university officials and public policy experts.

A document circulated by one participant in the forum reported the conclusions reached by the conference:

• International students are an important part of U.S. global competitiveness, not only through their contribution to the quality of U.S. universities and university- based research, but in their roles after graduation.
• The recent downturn in international student admissions to the U.S. seems to have reversed in the last two years. The major reasons cited were the continuing attractiveness of U.S. educational institutions, improvements in the visa process at State, and a massive increase in the pool of possible graduate students coming out of foreign universities.  However, given future uncertainties, there is little reason to be complacent.
• Immigration policy is broken, and minor legislative fixes may just cause more uncertainty and disruption.  Major needed changes may include allowing dual intent student visa (not denying visas to those who may want to stay in the US), creating a smooth path to a green card for international students, and a more rational system for both temporary and permanent employment-based visas.
• While we should do more to increase the talents of U.S. citizens, this would not eliminate our need to be competitive for foreign-born talent.  

The Comptroller General’s conference and its conclusions are important as examples of the consensus being reached on the need to reform America’s system for international students and high skill immigration. Others have reached similar conclusions. The American Council on Education (ACE), in its recent October 2006 Issues Brief, “Students on the Move: International Students in the United States,” stated that “While the United States continues to enroll the largest number of international students worldwide, growth rates in the next five largest host countries suggest that continued American success cannot be

taken for granted…the decline in the U.S. market share of international students in the past five years has been accompanied by steady increases in the United Kingdom, France, Germany, and Japan.”

State Department Appears Poised to Revise J-1 Regulation on Exchange Training Programs

As reported in an earlier newsletter, the Department of State (DOS) proposed a regulation earlier this year that would dramatically change the regulations governing the J-1 Trainee visa category, which is used by many industries to provide U.S.-based training to college interns and foreign employees. 

Under the proposed regulation, the Department of State would limit the use of the J-1 Trainee visa to those who have completed a university degree within 12 months of applying for the program and to professionals with at least three years work experience in their fields. This would eliminate the large number of foreign students who receive training through co-op programs as well as the majority of current intra-company trainees who have only one to two years of work experience. The regulation would also require participants to demonstrate a level of English proficiency (a TOEFL score of 550) that is equivalent to the minimum score for many U.S. Ph.D. programs.

As reported earlier, sponsoring organizations that place J-1 trainees at companies and other entities also would be required to undertake new burdens that may make continuing participation in the program cost prohibitive. Organizations would be required to conduct interviews with all J-1 program participants and make on-site inspection visits to every training location. Employer and academic groups that sponsor exchanges have argued the proposed regulation will not limit possible abuses that may be occurring but instead will impose large cost burdens that will make the programs difficult to continue. As noted previously, these programs are reciprocal and foreign governments could impose these same measures on Americans who seek similar training abroad.

After receiving more than 1,400 responses from business and academic groups critical of a proposed regulation (the comment period ended on June 6, 2006), the State Department appears poised to revise key portions of the proposed rule. In conversations with groups, State Department officials have said that a revised version of the regulation will address the concerns raised. While business and university groups are taking a “wait and see” attitude, many of their representatives are pleased the State Department is taking their responses seriously.

Green Card Quota Problems Persist

The failure of Congress to pass legislation on immigration has quashed the hopes of would-be immigrants and employers seeking relief from the long waits for green cards for skilled employees. According to the State Department’s November 2006 Visa Bulletin, an employment-based immigrant in the Skilled Workers and Professionals (3rd preference) category can expect to wait at least four to five years for a green card. These wait times are likely to worsen further absent legislative changes by Congress. The wait times for Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability (second preference) from China range from one to two years and three years for individuals from India.

Another indication of inadequate green card quotas is emerging with the news that the visas Congress added a few years ago primarily for immigrants who qualify under Schedule A (shortage occupations) are also running out. In practice, those additional green cards have been used primarily by U.S. hospitals sponsoring foreign nurses.

The Senate-passed immigration bill (S. 2611) and Senator John Cornyn’s (R-TX) SKIL bill (S. 2691) contained significant increases in employment-based green cards. To a large extent, both would eliminate the current waiting times. Senator Cornyn sought to boost the chances for his SKIL bill to be added in some form to an appropriations bill by holding a hearing in Dallas on August 31, 2006. No “news” came out of the hearing. However, the goal clearly was to establish a stronger legislative record for the bill’s reforms. Testimony was taken from educators, businesses and immigration attorneys on the negative impact of current U.S. immigration policies on the competitiveness of U.S. companies globally.

For more information on this initiative, contact Marshall Kaplan, Executive Director, Merage Foundation for the American Dream, mkaplan@meragefoundations.com.