Immigration Changes From The White House
- May 29, 2009
- Category: Immigration, Non immigrant visa
President Obama has indicated a desire to act on comprehensive immigration reform this year, and is expected to address the issue publicly very soon. Two questions arise with regard to a comprehensive immigration reform bill from President Obama: 1. Will the White House propose a path to citizenship for the 12 million undocumented workers in the U.S.? 2. Will the White House reform or change H-1B or L-1 business visas? COMMENTARY The White House has not given clues or indications in advance on what reforms it will propose. We have the following statement to go on from the White House. “President Obama believes that our broken immigration system can only be fixed by putting politics aside and offering a complete solution that secures our border, enforces our laws, and reaffirms our heritage as a nation of immigrants. He believes our immigration policy should be driven by our best judgment of what is in the economic interest of the United States and what is in the best interest of the American worker. President Obama recognizes that an orderly, controlled border and an immigration system designed to meet our economic needs are important pillars of a healthy and robust economy.” Presidential Candidate Obama apparently had a plan outlined in February 2008: To read his plan on immigration: I tried to click this link. It is a dead end link. Therefore, all we can do is speculate at this point. AMNESTY: Amnesty to the estimated 12 million undocumented workers is an issue that is really beyond the scope of this newsletter. Many arguments exist both pro and con for a law creating a path to citizenship or some other immigration benefit for this class of people. BUSINESS VISAS: For business visas, the recession has created multiple challenges for foreign professionals. First, the shrinking economy means that foreign professional have fewer job opportunities. The shrinking economy has also created a politically charged environment that works against the foreign professional. Many senators and representatives state publicly that the creation and/or preservation of U.S. jobs is a top priority for them and the country. The debate on the economic impact of immigrants intensifies during a recession. H-1B and L-1 visa holders are a specialized category of immigrants. Only 85,000 new H-1Bs are granted to private industry each year. The numbers, compared to the U.S. work force are small, but this class of immigrants does make important contributions to the United States. Positive Effects of the H-1B: This article focuses on the brain drain effect of losing out on skilled foreign workers. In a quote, “America’s running some of its best talent out of town on a rail: Foreign-born employees with temporary work visas. So says Vivek Wadhwa, a Duke University professor and Harvard University researcher. The trend spotlights a reverse brain drain that could hurt U.S. business in years to come, hindering innovation and the launch of new companies.” Also, see the following research: This new research dispels findings of some other studies that assert H-1B and other foreign workers are paid less than American IT professionals. A class of workers with higher salaries will, in aggregate, benefit the United States. This benefit often takes the shape of higher tax revenues for the local and federal government and more spending in the local economies. What Should the White House propose? Here are my suggestions: 1. L-1 Visas: I do not see any pressing needs to change this category. 2. H-1B Visas: I would abandon the visa cap (65,000 visas and 20,000 new H-1B visas for foreign workers with a Master’s or higher level degree from a U.S. academic institution). What purpose does it serve to have such a cap? If our economy is growing, why limit this category? H-1B visa holders benefit the economy. The economy will recover and start growing. If it is growing, we are hurt in aggregate by having this cap. For example, if the economy needs 100,000 of these workers, what happens to the 15,000 or more who cannot work here? They go work for the competition: Canada, the European Union, China, etc… Some violations did occur with visa holders. I do not have a problem with USCIS sending out Requests for Evidence verifying the companies’ finances and checking the applications thoroughly. The Administration should strive to protect, and not to harm, these important business visa categories.
H-1B, L-1 Visas In Danger
- May 1, 2009
- Category: Immigration, Non immigrant visa, US Employers
Responding to growing concerns about immigrants displacing U.S. workers, assistant Senate Majority Leader Dick Durbin (D-Ill.) and Sen. Chuck Grassley (R-Iowa) have introduced the H-1B and L-1 Visa Reform Act, designed to preserve the controversial H-1B program that allows U.S. companies to hire foreign workers, but to limit its abuse. The Durbin-Grassley bill would require that before an employer may submit an H-1B application, the employer must first advertise the job opening for 30 days on a Department of Labor (DOL) website. DOL would also be required to post summaries of all H-1B applications on its website. The Durbin-Grassley bill would give DOL authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, the H-1B and L-1 visa programs are criticized for making it possible for companies to hire foreign workers at lower wages and with fewer rights than Americans, in turn creating incentives for companies to avoid hiring Americans. The Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers. The Durbin-Grassley bill would limit issuance of L-1 visas for employees of a “new facility” to an initial period of 12 months, which can be extended after the employer demonstrates that the new facility is legitimate. The Durbin-Grassley bill would establish a process for DOL to investigate, audit and penalize L-1 employers. COMMENTARY I will address different provisions of this proposed bill. 1. INTENT OF THE H-1B PROGRAM: “Congress created the H-1B visa program so an employer could hire a foreign guest-worker when a qualified American worker could not be found,” said Durbin in a statement released today (Washington Independent: By Daphne Eviatar 04/23/09). COMMENT: I have looked through legislative history. I personally have not seen this statement in the legislative notes for H-1Bs. When Congress enacted the Immigration and Nationality Act of 1952, the H-1 nonimmigrants were described as aliens of “distinguished merit and ability” who were filling positions that were temporary. The Immigration Act of 1990 (P.L. 101-649) established the main features of H-1B visa as it is known today. Foremost, §205 of P.L. 101-649 replaced “distinguished merit and ability” with the “specialty occupation” definition. The purpose of the H-1B visa, as I read it, was to allow highly skilled workers, many of whom received U.S. educations to contribute their specialized skills to the U.S. economy. 2. PREVAILING WAGE ISSUE: “The Durbin-Grassley bill would require H-1B and L-1 employers to pay employees the prevailing wage to ensure employers are not undercutting American workers by paying substandard wages to foreign workers.” COMMENT: for H-1Bs, this is already the law. The employer must pay the H-1B employee the “required wage,” which is defined as: the greater of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment or the prevailing wage for the occupation in the area of employment based on the best information available. Do the senators know this? As to an L-1 visa holder, this would be an impossible standard to meet. The L-1 visa holder must be employed continuously abroad for 1 of the past 3 years by parent, branch, affiliate or subsidiary of U.S. company preceding his application for admission. Such an employee transfers over to the United States and typically makes what he made at the parent company in the country of origin with a bump-up for relocations fees, etc… Are the Senators proposing that the salary made by the prospective L-1 visa holder in the country of origin conform to prevailing wage in the United States? I do not see how legislation could require a foreign executive working outside the United States to make the prevailing wage for an equivalent position inside the United States. 3. NEW BUSINESSES: The Durbin-Grassley bill would limit issuance of L-1 visas for employees of a “new facility” to an initial period of 12 months, which can be extended after the employer demonstrates that the new facility is legitimate. COMMENT: This already is the law. Do the Senators know this? If a new office, USCIS can only approve an L-1 Visa for one year, 8 C.F.R. §214.2(l)(7)(i)(A)(3), and thereafter petitioner must show compliance with managerial/ executive standards. The Senators have not done their homework with this bill. In my opinion, they are seeking to eliminate the L and H visa categories, and not to improve upon them. I concede that the H-1B visa program has had its problems. The large software contractors have abused the system. Many, although asserting on the forms that they would pay prevailing wage, would not pay that level once the employee was here on the H-1B. The visa holders were often in weak positions with regard to their employers. One also has to consider the number of people affected by this measure. The numerical limitation on H-1B petitions for fiscal year 2010 is a maximum of 85,000. 85,000 workers is a very small percentage of our economy. This legislation would affect very few employees in the United States. However, those affected have specialized knowledge in their individual fields and make important contributions to the American economy. Can the United States afford to lose out on these valuable employees? The United States in aggregate could face a significant brain drain if bills such as these become law in the United States.
H-1B Visas In Danger?
- April 15, 2009
- Category: Non immigrant visa, US Employers
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) has announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category. The new “Employ American Workers Act,” (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application. Commentary: Will this have a chilling effect on immigration in the United States? I will give a basic definition of what it means to be an “H-1B dependent employer”: Companies deemed to be “dependent employers” or “willful violators” have special attestation requirements including that they have made good faith efforts to recruit U.S. workers. Many H-1B employers face pressing demands, both for their time and on their budgets, for filling vacancies. One of the advantages to the H-1B program was that an employer that needs to rapidly fill a position, would not have to recruit U.S. workers, assuming the company is not an H-1B dependent employer. If H-1B visa numbers were available, the company could then fill the position rapidly with a trained foreign professional. This was good both for the company and for the economy in aggregate. A company receiving TARP funding may not have the resources to recruit U.S. workers. Given that H-1B potential applicants have specialized knowledge in their fields, it may be very difficult or much more expensive to find U.S. workers with these skills. The Los Angeles Times on April 1, 2009, posted an article related to this subject. The article references a hospital administrator in the Imperial Valley. This administrator stated that while he was waiting for more visas for nurses, he had to hire nurses from other states. These nurses were commanding twice the pay of foreign hires. H-1B visa holders, as a reminder, must make the prevailing wage for their positions. The U.S. workers in this situation, were commanding wages significantly higher than what the government sets as prevailing wage for the position. One also has to consider the number of people affected by this measure. The numerical limitation on H-1B petitions for fiscal year 2010 is a maximum of 85,000. 85,000 workers is a very small percentage of our economy. This legislation affects very few employees in the United States. However, those affected have specialized knowledge in their individual fields and make important contributions to the American economy. Can the United States afford to lose out on these valuable employees?