"Winning the Future" Will Mean Dispelling Some Immigration Myths

Monday, February 28, 2011 - 00:00

In a State of the Union address characterized by its focus on investment in U.S. competitiveness, President Obama made immigration reform a facet of his "win the future" agenda. Echoing earlier speeches linking immigration and innovation, he called on Congress to work with the White House and pressed for immigration legislation that will allow the United States to retain talented foreign students rather than "send[ing] them home to compete against us." The President appealed for reforms that would keep our country from "expelling talented responsible young people who could be staffing our research labs or starting a new business, who could be further enriching this nation."

These are laudable and crucial goals for the U.S. economy, especially when our leading graduate schools report a very high population of international students and faculty. The Financial Times 2010 ranking of global MBA programs has some staggering statistics. In the top 13 MBA programs in the United States, one-third to nearly one-half of the student body is made up of international students; the faculty of these programs is similarly constituted. Statistics from graduate programs in the sciences and technology tell a comparable story.

But as the business of the 112th Congress gets underway, the path towards easing skilled migration is by no means clear. There are legislators on both sides of the political divide who share the President's goal. But in order for U.S. businesses to have the ability to mine foreign talent, the White House, pro-business immigration legislators and advocates from the business community will have to help dispel some long-held myths about skilled migration to our country and move past the enforcement-for-benefits tradeoffs that have long stymied much-needed progress on reform.

Opponents of skilled migration routinely cite two "truisms": that U.S. businesses hire foreign professionals because they are cheaper than U.S. workers and that there is widespread fraud in the business immigration system - with opponents especially claiming fraud in the H-1B program for skilled foreign professionals. But U.S. government studies conducted in the last several years give lie to these claims. A report released last month by the Government Accountability Office provides a telling portrait of the conflicted view our government has of the H-1B visa. Though the report claims that greater oversight and enforcement are needed to counteract undercompensation and program misuse, the GAO's own statistics hide another story in plain sight. As the National Foundation for American Policy, a leading pro-business immigration advocacy group, has commented, the report contains interesting data that contradict the argument that these foreign nationals are underpaid and undercut U.S. workers. When adjusted for age, H-1B professionals earn as much as or more than their U.S. counterparts, especially in key engineering and information technology fields. And a 2008 report on fraud in the H-1B program conducted by U.S. Citizenship and Immigration Services showed that, among large corporations, incidents of fraud were extremely low and that many of these employers had long, well-established records of immigration compliance. But despite the government's own findings, anti-immigration myths prevail and the result is ever-increasing restrictions on business immigration. In the last two years alone, Congress has passed a law that limits employers who have accepted government recovery funds from using the H-1B program (though companies that needed bailout funds were also in need of top talent to move them out of recovery mode). And last summer, federal legislators tacked thousands of dollars of additional fees on the H-1B and L-1 visa programs for employers who have large proportions of these employees in their workforce.

What are the prospects for the sort of immigration change contemplated by President Obama? With the Republican majority in the House of Representatives clamoring for "border control first" and saying "no" to the DREAM Act (which would have provided a path to legal status for students brought to the U.S. as children), comprehensive immigration reform would appear unlikely. This does not mean, however, that business immigration advocates (which, in fact, include a number of Republicans) should not press for laws that can benefit the economic recovery. Business leaders must take the opportunity to educate Congress about their immigration needs and how foreign professionals have added value in their specific corporate or entrepreneurial settings. Legislators must hear that access to the best-educated, most highly skilled workers, regardless of nationality, is key to U.S. competitiveness not only in the science, technology, engineering and math fields, but in business and other industry sectors. As New York City Mayor Michael Bloomberg, one of the most vocal advocates for a rational immigration policy, has said, "There is nothing we could do to unleash innovation and job growth that would be more powerful than fixing our immigration systemThe next generation of immigrant entrepreneurs is waiting in the wings - and letting them in would be one of the best ways to start solving our unemployment problem."

Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.