New Impediments For U.S. Immigration?

Monday, May 4, 2009 - 01:00

Editor: Your practice is almost totally focused on the corporate temporary immigrant laws, the H-1B status, and similar provisions.

Patrick: It is correct that we have extensive experience with temporary employment-based visas, but many of our clients also wish to retain the talent permanently. The problem is that green card quotas are backlogged, in some instances for many years. Two-thirds of our practice is, and always has been, business or corporate immigration - essentially the larger but also the mid-size companies moving people around the world and particularly to the United States - but we do a fair share of athletes, artists, academics and entrepreneurs, as well as family cases. The immigration work we're doing today includes a lot of compliance activity; "repair" work to keep Green Card applications going for people who are about to be transferred or laid off; and helping companies understand what the consequences are of a shrinking labor group. It's not as much fun when it's going in this direction, but many of us in the field are confident that it will come back as companies open up the doors for expanding and hiring again.

Editor: You've talked in the past about the America Recovery and Reinvestment Act's impact on immigration and the Employ American Workers Act (EAWA).

Patrick: EAWA would, for two years, effectively preclude recipients of the funds through the Troubled Asset Relief Program (TARP) or Federal Reserve Act section 13 programs (such as TALF), from recruiting and retaining much-needed talent through the H-1B visa program. Specifically, EAWA imposes on these institutions the same restrictions intended for willful immigration violators.

We understand and appreciate the desire of Congress to protect American jobs. EAWA was added as an amendment to the stimulus legislation, whose intent is to jump start our sluggish economy. Ironically, EAWA has the opposite effect - it actually will hinder our recovery by restricting U.S. institutions' ability to hire much-needed global talent.

It is also important to note that we are not talking about millions of foreign workers infused into our country. Supporters of this restriction have relied on distorted statistics published in recent days. The truth, according to the National Foundation for American Policy, is that H-1B visas make up anywhere between zero percent and 0.74 percent of the total workforce in most financial services firms. Moreover, H-1B workers are not "cheap labor," as the law requires them to receive the same wages and benefits as their U.S. counterparts.

It is also unfortunate that the amendment did not go through the normal legislative process where open and honest debate can take place, and Congress can look at the facts. Instead, it passed the Senate without debate. At one point, there were credible reports that the provision was to be eliminated from the final House-Senate conference report. The conferees and their staff thought it would never end if they started to attach elements that had nothing to do with economic stimulus, thinking it better to leave decisions on the pros and cons of immigration legislation for later. But within 24 hours before the conference report was finalized, the sponsors of EAWA got the language back into the report.

Editor: What does this say about the political climate around immigration generally?

Patrick: Because of the general protectionist sentiment surrounding immigration, many businesses now find it harder to bring in the professional worker, the scientist, analyst, or accountant because they have taken stimulus money. We cannot afford pure political stunts. It is not a sensible economic position to keep out the best and brightest. Companies should be making hiring decisions strictly on the basis of what will make them more robust and profitable.

The statistics will show, as Bill Gates has been testifying for over a decade, that many professional workers who come here actually improve businesses and create jobs. To the extent that some sponsors misuse the visa category or fail to follow the rules, the solution is to adequately enforce the laws. There are plenty of laws that impose enormous obligations on the H-1B sponsor/employer, so to attach these riders to the stimulus bill or other bills to restrict access to talent are, in my view, just politically driven - and regrettably successful - populist stunts.

Again, I understand the sensitivity of the immigration issue during an economic downturn. But it is more important now than ever that Congress legislate based on sound policy decisions and not emotional rhetoric.

Editor: And how does the policy concerning the non-professional, less educated workers fit into the immigration debate?

Patrick: With respect to the less educated workforce, I would suggest that illegally low wages and working conditions is something that should be addressed by the government; it is a matter of enforcement . The Department of Labor has plenty of tools to make sure employers are held accountable - that they are barred from doing this and that they pay the appropriate fines when they are in violation. Instead, this legislative add-on says we shouldn't bring foreign workers here because they're supposedly taking jobs away from Americans. Any sensible economist would say that can't be the case because there are at least 12 million here right now without authorization, and there are plenty of workers in the lesser-skilled workforce who are authorized to work who are holding jobs right now, and employers are saying they can't fill all these jobs. Something is missing in the analysis that says we have workers going without jobs in the lower-skilled workforce.

Editor: Why are there preferences for Chileans and Singaporeans?

Patrick: Also for Australians! In the case of Chile and Singapore, the numbers were set aside as part of free trade agreements with them. However, the leadership in Congress back in 2003 felt strongly that Congress had plenary authority to make immigration law. So, when it was Australia's turn to negotiate its trade agreement with the U.S., the USTR declined to discuss immigration with Australia, and Australia on its own successfully persuaded the U.S. Congress to create a separate category for its nationals.

So, Chile, Singapore and Australia all have special status, albeit in small numbers, and the quotas have never been exhausted. A company needs to note whether the person it is trying to hire is Chilean, Australian or Singaporean, because they will have an advantage.

Lastly, Congress also said that for academic, educational or not-for-profit organizations, employers can bring people here in a professional capacity without having to be subjected to this numeric cap. In every piece of legislation there are carve outs to achieve special purposes. The lobbyists were able to convince Congress that if someone is coming to work as an academic or for a not-for-profit, he or she should not be subject to this cap, because they're not coming for a for-profit purpose.

Query: what is the distinction? The theory for these not-for-profit exceptions is that they would not take jobs away from Americans, while the professional analyst going to a leading investment banking firm is surely taking a job away! In my 28-plus years of lawyering in immigration, both for the government and in private practice, I have found this isn't the case. The clients we work with don't say they have to hire a foreign worker. They say they have to hire that person because she's the best they've seen.

Editor: What percentage of computer engineers, the intellectual lifeblood of Silicon Valley, are non-U.S. citizens?

Patrick: I don't know the percentage, but the heaviest users of the H-1B have been companies that are bringing in engineers. Unfortunately, there has been a lot of misinformation about the use of this visa category as somehow a mechanism to bring in "cheap labor." The fact is that the H-1B category has a prevailing wage requirement, and companies that do not pay the prevailing wage should be penalized. It is not fair, however, to condemn all H-1B workers and employers because of the actions of a few. Also, there is in the minds of some policy makers a false distinction between the engineer hired by a large software company and the engineer who is coming here on temporary assignments. Some describe the practice of assigning a short term employee who subsequently departs to another country as "outsourcing." The fact is that we live in a global economy. To maintain the competitive edge, companies need to have the right talent at the right place at the right time. To somehow suggest that assigning employees globally is bad for the country is simply not supported by facts. If our lawmakers are concerned about the use of the H-1B visa for short term assignments, then perhaps the answer is to create a separate category, not to hold the H-1B category hostage.

Editor: That's precisely what IBM has done, as well as what Oracle does, and Sun does and what Dell does. I fail to see the distinction.

Patrick: I am not suggesting that we should narrow the H-1B category to exclude workers on short term assignments. I do think that the immigration restrictionists who attack this business model are misguided. As you point out, the practice is not isolated. In fact, no one is forcing these companies to do this, and no one is forcing the clients who hire the companies to hire them. This is obviously an effective business model. I don't want to sound naive, but wouldn't America want to encourage that? So what if the very best talent to fill those jobs happens to include some who are not citizens or Green Card holders, why not? You hear, "Well, they're helping train people whose jobs are going to go overseas." But this notion of job protectionism - that the solution for America is to build a big wall and say we're going to protect American jobs and not let employers hire foreign people into those jobs - is getting to be a very tired argument. No economist is going to tell you that's a smart thing to do. There's a global playing field, and people are playing on it across the world. American and international companies are going to be playing on it. If you try to legislate a "U.S. only" scenario, companies will just pick up and move. They'll do what Bill Gates did and open a shop in Vancouver if you won't let Microsoft bring professionals here. That's not good for America.

For President Obama and the thoughtful leaders in Congress, on both the conservative and liberal side, the issue on immigration should be one thing: what's best for America? That's what should drive this. For America, there is no doubt, we should be able to attract, bring in, retain and continue to attract terrific people who do terrific things in every walk of life -whether it's art and music, or science and technology, or whether it's people who want to start businesses and bring their families here so they can buy a home and educate their children and contribute to their community - who are loyal and dedicated. That's what makes America great. And the different colors and religions and backgrounds help make us strong.

Editor: These are people who are contributing to Social Security, Medicare tax, and, if they were legitimized, would lower the median age, staving off what everyone predicts will be the insolvency of Social Security and Medicare.

Patrick: My experience with workers who are not supposed to be here is that nine out of ten want to pay taxes and Social Security. They want to be part of the American dream and do it right. The economic analysis is if you bring those of the 12 million who have no blemishes on their track record and are willing to wait their turn and pay an extra fine for having been here when they shouldn't have been, you're going to have a huge economic benefit to taxes as well as Medicare and Social Security.

Editor: There used to be some categories: temporary agricultural workers, student visas, L-1 (the intra-company transferee), E-treaty Trader or Investor - does any of that still exist, and how is it affected by these recent tack-ons to the stimulus?

Patrick: They still exist. The E-Treaty Trader and Investor categories still exist, but they don't work unless you are a national of the country that has ownership control of the business you're coming to in the U.S., so it will not work for a U.S.-owned business. There aren't many E-workers who come in every year. We do plenty of them at our firm so I can assure you there are some, but it is not a large category in terms of numbers. The L-1 is a critical visa that has become more important than ever with the advent of restrictions on the H-1B. It allows companies with presence outside and inside the U.S. to transfer executives and managers to the United States. Companies that want to grow typically want to transfer people who know their company. The O-1 category, which allows extraordinary-ability aliens here, is one which many of us would like to see utilized more. Unfortunately, the government interprets the standard of the O-1 very strictly, so only a few thousand a year come in.

The temporary worker is the most complicated. Less than 25 years ago, we tacitly allowed people to come here all the time to work. This was pre-1986, before employer sanctions. It wasn't unlawful for the U.S. employer to hire someone who was illegal, so our seasonal agricultural needs were taken care of by the workers who would come across the border without any papers. Their employer had no risk. In 1986 Congress made it the responsibility of the employer to verify the work eligibility of each new hire. That put a crimp in that whole temporary worker concept, but it also spawned a burgeoning business in false documents. What Congress didn't do and which it must do now, but which the labor unions are against, is allow more temporary workers. What is in the best interest of America? We need temporary workers, whether it's helping at a summer resort or picking crops at a certain part of the season. The temporary worker is a big issue, made more contentious by the notion that if we legalize these 12 million, we're not going to need any temporary workers. Not true . America will need more and more workers when we rebound from this economic nadir to help fuel that economic engine.

Please email the interviewee at mpatrick@fragomen.com with questions about this interview.