With President Obama promising Executive Action to address U.S. immigration problems, many stakeholders including those from the tech industry have heavily lobbied for him to use his pen to address not, only the border crisis, DACA children, and the deportation system but, also retrogression, H-1b visas, and the like. The conventional wisdom says that the President will stay true to his core constituents and offer no relief to employment based (legal) interests beyond the H-4 employment rule which has already been subjected to a comment period and merely awaits final regulatory approval but, until he speaks, we can all dream a little. Check out Computerworld’s take on this subject.
Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating international workers, Eh ?” Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.
New York Times Op-Ed by Sheldon G. Anderson, Warren E. Buffett, and Bill Gates Calls on Congress to ‘Break the Immigration Impasse’
In a recent Op-Ed piece published in the New York Times, Sheldon G. Anderson (Chairman and Chief Executive of the Las Vegas Sands Corporation), Warren E. Buffett (Chairman and Chief Executive of Berkshire Hathaway), and Bill Gates (former Chairman and Chief Executive of Microsoft) called on Congress to reach a compromise to remedy our “irrational” immigration laws. In this piece, these three business leaders stated that “the three of us vary in our politics and would differ also in our preferences about the details of an immigration reform bill. But we could without doubt come together to draft a bill acceptable to each of us. . . You don’t have to agree on everything in order to cooperate on matters about which you are reasonably close to agreement.” In reviewing the current impasse, this piece notes that “it borders on insanity to train intelligent and motivated people in our universities . . . and then to deport them when they graduate.” The Hammond Law Group applauds these statements by Mr. Anderson, Mr. Buffett, and Mr. Gates. We also agree with their conclusion that “whatever the precise provisions of a law, it’s time for the House to draft and pass a bill that reflects both our country’s humanity and its self-interest. Differences with the Senate should be hammered out by members of a conference committee, committed to deal.” These statements are a call to action that every member of Congress should consider as they review whether or not their choices are truly reflecting the best interests of our country.
A few weeks ago, President Obama promised to use Executive Action to bring about immigration reform when it became clear that Congress was not going to act but, can he deliver on that promise ? The first question is whether he is committed to any reform that would impact legal immigration and the simple answer is, not really ! Although he has made numerous pronouncements that indicate a support for entrepreneurs, STEM workers, and other international professionals, the actions of his administration have been outright hostile to all of those classes of international workers. To date, the executive actions which the President has been willing to take, have focused on humanitarian classes of immigrants including what is referred to as DACA individuals. If however, the President wants to “enact” more sweeping immigration changes, he can only changes policy and/or interpretation, not a statute or a regulation. For example, he can’t simply raise the H-1b cap. However, he can reduce retrogression by eliminating the inclusion of dependents when allocating immigrant visas. There are also a number of other actions the President can take that would impact legal immigration if he chose. Whether all of those changes would be considered positive by the business community or by the legal foreign workers them selves is unknown and there is cause for concern that his policies may be more restrictive than any bill Congress would have passed or than the current system. The last major Executive Action change was the creation of STEM extensions under President Bush. Here are links to two articles on this subject, one from Computerworld and the other from The Hill.
During President Obama’s speech today, he confirmed that he has been advised by the Republican House leadership that immigration reform will not be brought up for a vote in the House in 2014 all but assuredly killing any hopes for CIR in 2014 and making the outlook for CIR in 2015 bleak. Although the President vowed to use Executive Orders to bypass Congress, it is not expected that he would take any action impacting legal immigration and items like the H-1b quota and retrogression would need Congressional approval.
Immigration Reform: One Year After the Senate Approved the “Border Security, Economic Opportunity, and Immigration Modernization Act”
One year has passed since the Senate approved the “Border Security, Economic Opportunity, and Immigration Modernization Act.” In June of 2013, hopes were high that comprehensive immigration reform would become a reality. One year later, these hopes seem misplaced. The Washington Post recently reported that lawmakers on both sides don’t believe that immigration reform will be successful until President Obama leaves office. Despite statements by both Democrats and Republicans that immigration reform is critical to the survival of their parties, opposition from House Republicans has prevented the passage of any reform. With the defeat of House Majority Leader Eric Cantor (R-VA) in a primary election to a tea-party challenger whose campaign focused on an anti-immigration platform, immigration reform advocates have lost a critical supporter. Despite these negative developments, there is still time for comprehensive immigration reform to pass. The Hammond Law Group urges readers to contact their representatives to express their support for immigration reform.
A recent study released by the Partnership for a New American Economy found that the limitations placed on the number of new H-1b’s that are provided each fiscal year through the H-1b cap is harming the U.S. economy. After the H-1b quota was reached in the first week of April in 2013 and 2014, many companies announced that they are considering increasing their presence in other countries that have immigration systems that are friendlier to high-skilled workers. Specifically, Microsoft recently stated that it would increase its research and development sector in Canada, and plans to offer 400 new jobs in Vancouver by 2015. To contribute to the arguments that the current H-1b system is reducing the capacity of many employers to grow in the United States, a study by the Partnership for a New American Economy found that that cities where employers received a large number of rejected H-1b cap cases experienced less job creation and wage growth. It also discovered that the U.S. tech industry would have grown substantially faster in the period after the recession if such a high number of H-1b visas had not been rejected in the 2007 and 2008 lottery. Furthermore, the results of the 2007 and 2008 H-1b lottery caused the New York City / New Jersey area to lose the opportunity to create as many as 28,000 tech related jobs. Similar results were shown in the Washington, DC, Chicago, and Dallas Fort Worth areas. This study provides further support for the critical need for immigration reform.
The WSJ ran an interesting article explaining how the employment of H-1b workers actually serves to increase the wages of their US citizen colleagues. This study appears to be in direct contradiction to the propaganda spouted at the dog and pony show put on by Senator Sessions a few weeks ago.
Senator Sessions (R-Ala) a long-time and outspoken opponent of the H-1b visa and any increase in the H-1b quota or an increase in legal immigration, hosted a policy discussion last week to denounce any increase in the H-1b cap. The premise of the discussion was that there were plenty of unemployed US workers with STEM degrees who were being bypassed for cheaper H-1b visa holders. Check out the summary of the arguments being made.
Earlier this week, the Department of Homeland Security published the proposed rule which among things would allow certain H-4 holders to obtain EAD cards. H-4 holders would be permitted to file for EAD cards if 1 of 2 conditions are met by their H-1b spouse:
1. Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
2. Is eligible for an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit under certain scenarios.
The proposed rule also covers other topics. Comments to this proposed rule are due by July 11th and our firm, on behalf of our clients, will be submitted official comments. You may also submit electronic comments on this proposed rule.