Government agency actions keep skilled immigrants out

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In his State of the Union address earlier this year, President Obama declared, “Others come here from abroad to study in our colleges and universities. But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense.” Yet although the president has justifiably criticized policies that lead to educating international students in America only to send them home, his own agencies are making it very difficult for skilled foreigners to work in America.

U.S. companies have wearied of counterproductive policies directed against employers that utilize the global talent pool. Over the past several months, despite the rhetoric of reviewing regulatory policies, employers have faced the reality of agency actions and procedures that delay vital projects, force companies to go without valuable employees and push work outside the United States.

Today, seemingly no matter how qualified the worker, applications for skilled foreign nationals are 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 so 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 to transfer into the U.S. existing employees with specialized knowledge, another signal to keep more work abroad in the first place.

As if the application process isn’t burdensome enough, the oversight process has given new meaning to the word “overkill.” 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 26,300 hired 10 or fewer foreign-born professionals. Large employers have received six or more visits within the past year, which tells companies our government would rather have them answer the same questions over and over than devote their energies to competing in global markets.

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.

In January 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. The National Foundation for American Policy gathered together recommendations from several immigration attorneys and business organizations in a recent report. Among the recommendations:

— Sharply curtail requests for evidence by U.S. Citizenship and Immigration Services examiners and adjudicate cases in a timely manner.

— Engage in enforcement that does not waste public and private resources by subjecting employers to redundant audits.

— To keep skilled foreign nationals in the country, reform labor certification, a part of the green card process, to reflect “real world” recruitment practices of employers.

— Allow skilled professionals who are waiting years (or potentially decades) for green cards 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, it would help our country retain skilled foreign nationals by giving them greater labor mobility and work authorization for spouses while waiting for final green card issuance.

— To discourage illegal immigration, make visa rules less bureaucratic for agricultural and other seasonal workers.

— Relieve long-time employer sponsors with good track records of certain burdensome application procedures.

— To foster start-ups, U.S. Citizenship and Immigration Services should rescind its January 2010 immigration memo that prohibits a company from petitioning for its founder.

Like the Russian peasants who scratched their heads wondering if the tsar knew what people did in his name, U.S. employers have their own question: Does President Obama know his immigration agencies are inhibiting growth and making American companies less competitive in the 21st-century global economy?

Randel K. Johnson is senior vice president for labor, immigration and employee benefits at the U.S. Chamber of Commerce. Austin Fragomen, partner, Fragomen, Del Rey, Bernsen, and Loewy, is chairman of the American Council on International Personnel. Stuart Anderson, former head of policy at the Immigration and Naturalization Service, is executive director of the National Foundation for American Policy, a nonpartisan research group.

Randel Johnson, Austin Fragomen & Stuart Anderson