The National Foundation for American Policy (NFAP) presented a policy brief in August regarding reforming America's regulations and policies on employment-based immigration.
A summary of the policy brief is reproduced here, but the entire document may be viewed at www.nfap.com.
A review of current regulations and administrative procedures finds U.S. companies face counterproductive and often punitive policies directed against employers that utilize the global talent pool. Over the past several months, despite discussion of reviewing regulatory policies, employers have been met with the reality of agency actions
that delay vital projects, force companies to go without valuable employees and push work outside the United States. While in speeches the President has justifiably criticized policies that lead to educating international students in America only to send them back to their home countries, his own agencies make it difficult for skilled
foreigners to work in America.
Today, applications for skilled foreign nationals are routinely greeted by U.S. Citizenship and Immigration Services adjudicators with costly and time-consuming "requests for evidence." Immigration attorneys say they have never seen the process for approving applications this arduous and adversarial. In addition to problems with green cards and H-1B temporary visas, both the State Department and the immigration service routinely deny or delay applications for companies simply to transfer into the U.S. existing employees with specialized knowledge, another signal to keep more work abroad in the first place.
The oversight process has become more burdensome. Seeking to appease Congressional critics likely to remain dissatisfied, in the past year U.S. Citizenship and Immigration Services has conducted 15,000 on-site audits of employers that hire skilled foreign-born professionals. To put the enormity of 15,000 audits a year in perspective, in FY 2009, there were only about 27,000 employers of new H-1B visa holders and 26,200 of them hired 10 or fewer foreign-born professionals.
Large employers with recognizable household names have received 6 or more visits within the past year, which does not add to the integrity of the H-1B visa category but tells companies our government would rather have them answer the same questions over and over than devote their energies to competing in global markets. A 2008 audit report assumed improbably that many employers who hire only 1 or 2 skilled foreign nationals on a H-1B visa were committing fraud, rather than the more likely scenario of such employers not understanding a
complex legal procedure that often involves three separate overnment agencies and dozens of individual regulations. It's not surprising that the site visits have showed a rate of fraud or technical violations far lower than the original report. Since 2005, employers have paid over $700 million in government-mandated fees to fund enforcement activities against themselves.
At ports of entry, companies have reported cases of foreign-born engineers, computer specialists and executives being placed in 24-hour detention and sent back on planes because an immigration inspector at a port of entry did not think that professional's entry served America's economic needs. Recently a Customs and Border Patrol representative assured a business audience that foreign nationals subjected to these interrogations should welcome these "opportunities" to explain why they are coming to the United States.
In a Wall Street Journal article (January 18, 2011), President Obama announced a "government-wide review of the rules already on the books to remove outdated regulations that stifle job creation and make our economy less competitive." To be meaningful, such a process needs to be accompanied by concrete changes. To help this process, the National Foundation for American Policy gathered together recommendations from several immigration attorneys and business organizations, submitted comments to the Department of Homeland Security notice, and compiled this report. The research was made possible by a grant from the Carnegie Corporation of New York. The statements made and views expressed are solely the responsibility of the authors.
Among the recommendations in this report:
- Sharply curtail requests for evidence by U.S. Citizenship and Immigration Services adjudicators and adjudicate cases in a timely manner.
- Stop wasting public and private resources by subjecting employers to redundant audits rather than engaging in focused enforcement.
- To keep skilled foreign-born professionals in America, return labor certification, a process required for an employment-based green card that costs up to $25,000, back to its original intention. At the time of the 1965 Immigration Act, the late Senator Edward Kennedy stated: "It was not our intention, or that of the AFL-CIO, that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration." He said the Labor Department could simply use available statistical data on employment.
- To help ensure we have an accurate count of workers and their families who have been waiting 6 to 10 years for green cards due to low immigration quotas, allow skilled professionals to file early for adjustment of status prior to when a visa number is available. While this would not award green card status any faster, this could help our country retain skilled foreign nationals by giving them greater labor mobility,including the ability of the sponsoring employer to promote, and award interim benefits of travel and work authorization for the workers and their families while waiting for final green card issuance.
- To discourage illegal immigration, make visa rules less bureaucratic, not only for skilled professionals but also for H-2A visas for agricultural workers and H-2B visas for non-agricultural workers.
- Relieve long-time employer sponsors with good track records of certain burdensome application procedures.
- Adjudicate consistent standards for the highest-skilled immigrants in the employment-based 1st and 2nd preferences, since these categories are underutilized at a time when companies and countries are competing for the world's best talent.
- To foster startups, U.S. Citizenship and Immigration Services should rescind its January 2010 immigration memo that prohibited a company from petitioning for its founder, especially since, unfortunately, the agency's recently announced modification to the memo will benefit few potential foreign-born entrepreneurs.
Established in the Fall 2003, the National Foundation for American Policy (NFAP) is a 501(c)(3) non-profit, nonpartisan public policy research organization based in Arlington, Virginia focusing on trade, immigration and related issues. The Advisory Board members include Columbia University economist Jagdish Bhagwati, former U.S.
Senator and Energy Secretary Spencer Abraham, Ohio University economist Richard Vedder, former INS Commissioner James Ziglar and other prominent individuals. Over the past 24 months, NFAP's research has been written about in the Wall Street Journal, the New York Times, the Washington Post, and other major media outlets. The organization's reports can be found at www.nfap.com.