Earlier this month, Compete America issued a letter to the USCIS challenging the way the agency is handling H-1b petitions in a manner that is negatively impacting STEM jobs, U.S. graduates, and U.S. employers and the practical effect is to promote off-shoring and the outsourcing of U.S. jobs overseas. Read the full letter here.
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.
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.
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.
On September 19th, Senators Charles Schumer (D-NY) and Chris Coons (D-DE) plan to introduce a new bill before the Senate. The so-called “BRAINS Act” would create a two-year pilot program that would allocate an additional 55,000 green cards each year for foreign-born graduates who have a master’s degree or higher from an American university in science, math, technology, or engineering (“STEM”). To be eligible, the graduate must meet three criteria: (1) have received a master’s degree or higher from an eligible U.S. university in a STEM field, (2) have an offer of employment in the U.S. in a STEM field, and (3) be petitioned for by an employer who has gone through labor certification and can show that there are no available U.S. workers. Senators Schumer and Coons believe that this act will “fix a long-existing problem in our visa system that, despite the worsening shortage of highly-skilled tech workers based in theUnited States, forces many of the world’s brightest students to return to their country of origin, taking with them any economic growth and jobs they might create.” The bill will also permit any unused green cards from this program to be used to reduce the backlog for employment-based green cards for STEM graduates from foreign universities. This bill is promising. It would provide an enormous benefit to foreign-born graduates from U.S. STEM programs while also enhancing the U.S. economy. Given that there remains very little time in this session of Congress, it is unclear whether this bill will have sufficient time to make it through Congress before the session ends.
During this past month, members of the U.S. Senate have introduced a number of bills that would allow STEM graduates to more easily receive green cards once they are employed in a relevant field. On May 15, 2012, Senator John Cornyn (R-TX) presented Securing the Talent America Requires for the 21st Century (“STAR Act”). This bill would: (1) allocate 55,000 visas for eligible STEM graduates who have obtained a master’s or Ph.D from a qualifying U.S. research institution and have job offers in a related filed, (2) offset these visas by eliminating the Diversity Visa lottery program, and (3) allow dual immigrant intent for individuals admitted as students to pursue a STEM degree. Senators Lamar Alexander (R-TN) and Chris Coons (D-DE) also introduced a bill on May 15th. Sustaining our Most Advanced Researchers and Technology Jobs Act of 2012 (“SMART Act”) would permit students who enter the United States to obtain a master’s or doctorate degree in a STEM field to use a new visa called an F-4. Once these students graduate from their program, they will have a year to find a job in a STEM field in the United States. After obtaining employment, these students will be able to adjust their status to Legal Permanent Resident. Finally, on May 22nd, Senators Marco Rubio (R-FL), Chris Coons (D-DE), Jerry Moran (R-KA), and Mark Warner (D-VA) submitted the Startup Act 2.0. This legislation would create a new STEM visa to allow foreign students who graduate with a master’s or Ph.d in a STEM program from a U.S. institution to receive green cards. It would also create an entrepreneur’s visa for immigrants to launch businesses in the United States. While it remains to be seen whether these bills will be successful in this election year, the Hammond Law Group applauds these Senators for their efforts.
Recently, the DHS updated and expanded the STEM list . Inclusion on the STEM list allows a 17 month extension of one’s OPT if you are employed by an eVerify employer.
Recently, the Harvard Business Review published an article discussing the battle to retain US educated international STEM grads and the need for improved US immigration policies to enhance US businesses trying to retain this talent as opposed to the current climate, where US immigration policy often forces STEM graduates to offer their talents overseas.
As part of President Obama’s public claims to foster legal immigration and encourage entrepreneurship, the DHS announced several planned reforms to achieve these goals without the need for legislative action. We applaud the goals of the administration and these planned reforms and just hope that the culture of no which so permeates the agency at the service center levels are not able to quickly thwart the Preseident’s plans in much the same way that Senator Grassley and his cohorts in Congress would most assuredly stop these reform measures if Congressional action were required.
Last night, the U.S. House of Representatives passed H.R. 3012, the Fairness for High-Skilled Immigrants Act by an overwhelming vote of 389-15. This bill would change the way employment-based (EB) green cards are allocated by eliminating the per country quotas. If the bill becomes law, it will equalize the waiting times for employment based permanent residence, which would result in significant advancement in EB green card availability for India and China. Unfortunately, it would also create retrogression for persons from other countries, specifically those in the EB2 category, who now enjoy a “current” status. The seven percent limit per country would be eliminated by 2015. Instead of separate queues for each country in each employment based green card category, there would be eventually be a single queue for each employment-based green card category.
Until 2015, per-country limits on green cards would still exist, but a certain number of immigrant visas would be immediately allocated to India and China and away from other countries. As a result, priority dates for India and China would quickly advance in the EB-2 and EB-3 categories. However, for other countries EB-2 could retrogress and EB-3 could see further retrogression. By 2015, the EB-2 and EB-3 categories would all be backlogged, but there would be a single priority date for all countries in each category.
Although, certainly not a perfect solution, this bill is a step in the right direction and corrects one glaring defect in the employment based green card system. It is hoped that the positive reaction that this bill received in the House would motivate other immigration bills including: special treatment for STEM and Schedule A occupations, an overall increase in the level of employment based immigration, the elimination of counting dependents toward the overall EB quota, a re-capture of unused immigrant visa numbers from prior fiscal years, and/or a market based approach to the H-1b quota. As this bill is considered by the Senate, it is hoped that further positive amendments could be added.
The bill will not become law until it passes the Senate and is signed by the President. We expect the Senate to take up this bill soon however, no time table has been set. We will keep you updated as developments occur.