Congress AWOL in the global competition for talent


Nero at least fiddled while Rome burned. The U.S. Congress is doing almost nothing while American companies struggle in the global competition for talent. Americans companies’ inability to hire talented foreigners makes it hard for them to grow, invest and innovate inside this country and encourages them to expand outside of the U.S.

Two recent developments illustrate the problem. First, this month, U.S. Citizenship and Immigration Services announced it had reached the statutory limit of 85,000 on H-1B visas (20,000 reserved for advanced degree holders from U.S. universities). That means, with the exception of employment at universities or nonprofit research institutes, no foreign national can start working in the U.S. on a new H-1B visa until October 1, 2013, more than 15 months from now. While it’s possible for graduates of U.S. universities to be eligible to work on Optional Practical Training (OPT), that option is not available for many potential hires and in any case, given the difficulty of obtaining either H-1B temporary status or permanent residence, the OPT program leaves participants uncertain about their long-term future in the United States.

The second development is that the U.S. Department of State announced in its most recent Visa Bulletin that wait times are likely to get longer for employment-based green cards. An analysis by the National Foundation for American Policy found that, depending on the category, wait times could already range from eight years to perhaps decades for Indian and Chinese nationals being sponsored today for green cards (permanent residence). The State Department announced a wait time may be developing for prospective immigrants in the employment-based first preference (EB-1) category (outstanding researchers and professors, aliens of extraordinary ability), which previously had no backlog.

Moreover, in another development, skilled foreign nationals from countries other than China and India in the employment-based second preference (EB-2) category, which is for persons of “exceptional ability” and “advanced degree” holders, will soon experience backlogs. The State Department already was not accepting new green card applications for nationals of China and India in the EB-2 category for the rest of this fiscal year.

The annual limit of 140,000 employment-based immigrant visas has remained in place since the Immigration Act of 1990. As a result, years of backlogs have developed, particularly for individuals from India and China, who also face a “per country” limit that restricts the number of individuals admitted annually from one nation.

The problem affects not just employers in high technology, but also health care providers, aerospace companies, financial firms, equipment makers, pharmaceutical companies and many others. It also affects the individuals sponsored for the green cards, who live in legal limbo, which is difficult on spouses and children. Individuals waiting in temporary status for their green cards may be limited in their advancement opportunities because a promotion could require starting the green card process again.

A new report from the National Foundation for American Policy confirms that by making the following two changes, Congress could go a long way toward alleviating the long wait times for skilled immigrants: 1) eliminate the per-country limit for employment-based immigrants; and 2) provide an exemption from employment-based green card quotas for foreign nationals who earn a master’s degree or higher in science, technology, engineering or mathematics (STEM) from a U.S. university.

In November 2011, the U.S. House of Representatives passed H.R. 3012, the Fairness for High Skilled Immigrants Act, by a vote of 389-15. The legislation would eliminate the per-country limit for employment-based immigrants over a four-year period. However, the bill, sponsored by Rep. Jason Chaffetz (R-UT), Rep. Zoe Lofgren (D-CA), House Judiciary Committee Chair Lamar Smith (R-TX) and others, has yet to become law. Senator Charles Grassley (R-IA) has so far blocked the bill in the Senate. Bills introduced by Rep. Lofgren (H.R. 2161), Senator Jerry Moran (S. 3217), Senator Lamar Alexander (S. 3192) and Senator John Cornyn (S. 3185) would provide additional green cards for skilled immigrants in STEM fields.

Without changes to the law, the long wait times for high-skilled foreign nationals, including those educated in America, will continue. Ultimately, this will result in less investment and business growth in the United States. That means fewer jobs for Americans, as talented foreign-born individuals choose to develop innovations and start businesses in other nations.

Stuart Anderson served as executive associate commissioner for policy and counselor to the Commissioner of the Immigration and Naturalization Service from August 2001 to January 2003 and is executive director of the National Foundation for American Policy, a nonpartisan research group based in Arlington, Va.

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