Among the few agreements on Capitol Hill concerning immigration reform, legislators from both sides of the aisle agree on America’s need for talent, particularly in advanced fields such as science, technology, engineering and mathematics (STEM). American businesses, in addition to legislators, are seeking to attract and retain foreign talent within high- innovation fields to the U.S. to create new jobs and jumpstart our lagging economy. It is easy to see why we need to encourage and retain these highly skilled individuals in the U.S. – nearly half of U.S. master’s and Ph.D. degree recipients in STEM-related fields are foreign born, and many of these graduates leave the U.S. after experiencing frustrating setbacks in converting to valid worker status. The White House has even expressed concern over the continuous exodus of highly trained and competitive pre-professionals and entrepreneurs in the STEM field.
In fact, the Department of Homeland Security (“DHS”), the principal agency overseeing our nation’s immigration laws, recognized several years ago the importance of encouraging foreign nationals to settle in the U.S. when it chose to provide certain foreign graduates holding designated STEM degrees a 17-month extension of the temporary employment program known as Optional Practical Training (“OPT”) accorded to student visa holders after they complete a U.S. degree. Recently, DHS made additions to the STEM degree list to include cutting-edge fields in the environmental and engineering sciences as well as more general science fields, allowing greater participation in OPT for those in computing and non-specific STEM fields. Although DHS added a few business-related STEM fields, like management science, U.S. employers have been consistently pressing for the addition of more such fields and degrees, like economics and MBAs, to encompass graduates with the skills to monetize STEM innovations. Still, OPT is temporary and more is needed to keep skilled graduates.
On Capitol Hill, Democrat and Republican legislators are currently spearheading efforts to retain foreign nationals with advanced STEM degrees from American universities. For example, the Immigration Driving Entrepreneurship in America Act of 2011 would create a new green card category for advanced STEM degree holders from “qualified” U.S. institutions, exempt these degree holders from annual numerical limits on green cards, allow students to apply for a green card directly from student visa status within the U.S., and establish a new green card category for entrepreneurs who create new businesses that fulfill certain investment or job creation criteria.
In addition, a bipartisan group of legislators has proposed several ideas in an effort to stimulate the American economy and retain talented U.S.-educated foreign nationals, including (1) diverting 55,000 green cards annually from the diversity lottery to eligible advanced STEM graduates of qualifying U.S. institutions who have job offers in related fields, (2) creating a new student visa category for foreign students seeking to pursue an advanced STEM degree in the U.S. and a green card to those who remain in the U.S. to work or create businesses, (3) making permanent the exemption of capital gains taxes on the sale of startup stock held for at least five years, (4) creating a targeted research and development tax credit for young startups less than five years old and with less than $5 million in annual receipts, and (5) directing the U.S. Department of Commerce to assess state and local policies that aid in the development of new businesses. All of these proposals are generally well supported by tech company CEOs nationwide, several universities and trade associations in favor of a highly competitive workforce.
While these bills remain in committees, there exists a global competition for highly skilled workers as economies struggle to recover from the downturn and nations notice that foreign nationals are frustrated with the U.S. immigration system. A number of our competitors, including Australia, Canada, Chile, China, Germany, Ireland, Israel, Singapore and the United Kingdom have all recently streamlined visa and work permit procedures, introduced new visa categories, and/or reduced some labor market test requirements for highly educated professionals and entrepreneurs that in the past made hiring foreign workers more difficult. These aggressive inducements pose a competitive threat to the U.S. – especially since our legislators can't yet agree on a more permanent strategy for attracting and retaining foreign talent.
Undoubtedly, STEM-educated foreign nationals are an asset to the U.S., but, as evidenced by other countries’ successes, there are other highly educated individuals who can contribute their talents to our economy. Like the recent additions to OPT, future legislation should broaden the incentives available to foreign-born graduates and professionals in business-related fields who possess the know-how to monetize the innovations we seek to procure. America must reverse its economic stagnation to maintain its status as the world’s leading economy. We recommend that companies and their counsel let their Washington representatives know that America deserves the economic and cultural benefits of educating and training foreign nationals – it is of the utmost importance that we extend immigration benefits to all high-skilled workers, rather than limiting ourselves to only those in STEM fields.
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 email@example.com. Michelle Muñoz-Machen, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.