New Legislation Focuses on High-Skilled Immigrants

By Roy Maurer January 21, 2015

Congressional Republicans have introduced three bills to bring more high-skilled immigrants to the United States after criticizing President Barack Obama’s executive actions announced in late 2014 for largely focusing on undocumented workers.

While the tech industry and proponents of comprehensive immigration reform have supported these efforts, critics of the proposals continue to question the legitimacy of high-skilled guest worker programs.

House Bill Eliminates Per-Country Caps

Rep. Jason Chaffetz, R-Utah, introduced the Fairness for High-Skilled Immigrants Act on Jan. 8, 2015, in the House of Representatives. The bill proposes to eliminate the per-country numerical caps for employment-based immigrants.

Under the current system, immigrants from any one country can claim no more than 7 percent of the 140,000 employment-based green cards issued annually to foreign nationals working in the United States. The example often used is that Iceland is allotted the same number of visas as China, which has a large backlog of workers wishing to immigrate to and work in the U.S. The legislation would not add to the overall number of available green cards, but it would enable U.S. companies to retain more skilled immigrants from countries such as India and China. Because of the current per-country caps, Indian and Chinese workers sometimes face decades-long waits for green cards, and many have to return home because they can’t get permanent residency.

“We need the best and the brightest regardless of where they are from to help create new high-paying jobs for U.S. citizens while helping to drive economic activity across the country,” said Scott Corley, executive director of Compete America, a coalition representing corporations, universities, research institutions and trade associations that advocates for high-skilled immigration reform.

Startup, I-Squared Return in the Senate

Two bills introduced in the Senate also focus on high-skilled immigration.

The Startup Act, introduced Jan. 16, 2015, by Sens. Jerry Moran, R-Kan., and Mark Warner, D-Va., would eliminate the per-country green card caps and create an entrepreneur visa enabling up to 75,000 foreign nationals to start a business in the U.S. The bill also would create a new visa for up to 50,000 foreign-born students who graduate from a U.S. university with a degree in the science, technology, engineering or math (STEM) fields.

Sen. Orrin Hatch, R-Utah, leading a bipartisan group of lawmakers, reintroduced his signature Immigration Innovation (I-Squared) Act on Jan. 13, 2015. The bill would make more visas available to temporary high-skilled workers, increasing access to green cards for these workers by expanding category exemptions and using immigration fees to promote American worker retraining and education.

The bill was first introduced in the last Congress. “This bill is a common sense approach to ensuring that those who have come here to be educated in high-tech fields have the ability to stay here with their families and contribute to the economy and our society,” said Hatch.

The I-Squared Act would:

  • Increase the H-1B cap from 65,000 to 115,000. The cap would be flexible up to 195,000 within any fiscal year based on early-filing demand. The comprehensive immigration bill passed by the Senate in June 2013 capped H-1B visas at 300,000. In 2014, U.S. Citizenship and Immigration Services received 172,500 H-1B petitions for fiscal year 2015 during the first week employers could apply, forcing the agency to conduct a lottery. The inability to secure H-1B visas for skilled foreign workers has been a consistent complaint among employers and immigration practitioners, according to a report from the Council for Global Immigration.
  • Uncap the existing U.S. advanced degree exemption (currently limited to 20,000 per year).
  • Authorize employment for dependent spouses of H-1B visa holders. The Department of Homeland Security is currently finalizing a proposed rule that would provide work authorization for the spouses of H-1B holders with approved green cards.
  • Increase worker mobility by establishing a grace period during which foreign workers can change jobs and not be out of status.
  • Allow dual intent for foreign students at U.S. colleges and universities to pursue green cards.
  • Reduce the employment-based green-card backlog by recapturing more than 200,000 unused green cards, exempting certain categories from the cap (dependents of employment-based immigrant visa recipients, U.S. STEM advanced-degree holders, immigrants with extraordinary ability, and outstanding professors and researchers), and eliminating per-country limits on employment-based green cards.
  • Create an account funded by an increase in H-1B and green-card application fees to fund a grant program promoting STEM education and worker retraining for U.S. citizens.

Brain Drain

Tech industry groups have applauded the I-Squared bill. “Like it or not, the U.S. is on the wrong side of a brain drain in the heated race for highly-skilled minds to be competitive against other countries in the global economy,” said Information Technology Industry Council Senior Vice President of Government Affairs Andy Halataei.

Consumer Electronics Association President and CEO Gary Shapiro said, “It is imperative that we encourage the best and brightest from around the world to stay here, instead of pushing them to the back of the line and incentivizing them to innovate and create jobs abroad.”

And Compete America’s Corley said the proposal “is focused on learning, innovating, and creating opportunities and jobs here in the United States. It’s a home run for America.”

Critics: Jobs Would Go to Foreign Workers Instead of U.S. Citizens

Critics of the proposal say increasing H-1B and other STEM-related temporary work visas would suppress wages and give U.S. jobs to foreign guest workers.

Sen. Charles Grassley, R-Iowa, the chairman of the Judiciary Committee controlling immigration legislation in the Senate, has said that H-1B visas are being used to replace U.S. workers and reduce wages, and has sought to limit the visa program and apply more oversight to it.

In a memo to the Republican caucus, Sen. Jeff Sessions, R-Ala., called the shortage of qualified candidates for tech jobs a “hoax.” He cited instances of tech companies laying off U.S. workers while calling for more visas, and cited U.S. Census Bureau data that showed 75 percent of Americans with a STEM degree do not hold a job in a STEM field, while—according to Rutgers Professor Hal Salzman—two-thirds of new IT jobs are going to labor imported from abroad.

“Not only is there no shortage of qualified Americans ready, able and eager to fill these jobs, there is a huge surplus of Americans trained in these fields who are unable to find employment,” said Sessions.

Ron Hira, a professor of public policy at Howard University and a leading researcher on the outsourcing of high-skilled jobs overseas, said, “This bill massively expands the deeply flawed H-1B guest worker program. It is forcing American high-tech workers out of their jobs and discouraging American students from pursuing these careers. The bill compounds these effects by tripling the number of H-1Bs in the base cap and providing an infinite number of H-1B guest workers at the advanced-degree level.”

Eight of the 10 biggest H1-B users last year were foreign outsourcing firms that hire out thousands of tech workers to corporate clients, according to an analysis of federal data by Hira. Five foreign outsourcing companies accounted for 37 percent of the 65,000 new temporary work visas approved in 2013, leaving thousands of other organizations dependent on the program to compete for the remaining slots. “American workers do not have a first and legitimate shot at these jobs and can even be replaced by H-1B workers, and accountability in, and oversight of, the program is nearly nonexistent,” Hira said.

Lack of enforcement also concerns Daniel Costa, director of immigration law and policy research at the Economic Policy Institute. He said the I-Squared bill lacks the prevailing wage and recruitment reforms found in the comprehensive legislation that passed in the Senate in 2013. “I’m not against skilled immigration, I just think it needs to be managed correctly so that it is not used to keep wages low in tech and STEM jobs, and so that it’s used to fill genuine labor shortages, meaning employers should have to advertise the jobs publicly and consider U.S. workers first, and then hire them if they are equally or better qualified,” said Costa.

“There are simply no arguments for H-1B increases that aren’t better made for green cards,” said IEEE-USA Government Relations Director Russ Harrison. IEEE-USA promotes engineering, computing and technology professionals and supports expanding the employment-based green card program instead of creating more temporary work visas. “The primary, practical function of the H-1B program is to outsource American high-tech jobs. Do the bill’s supporters really think that’s the direction American immigration policy should go?”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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