The Senate appears to be on a steady track to advance comprehensive immigration reform, and the focus has migrated from whether comprehensive reform will pass the Senate to the size of the margin and the exact contents. Key provisions for America’s employers – and its economic interests – include an increase in the H-1B cap for highly skilled workers, a new W visa for lesser-skilled workers, and modernization of the employment-based green card system, including an accelerated green card process for STEM (Science, Technology, Engineering, and Mathematics) graduates of U.S. universities. Alongside these improvements are broad new government enforcement authorities and employer obligations designed as worker protections: significantly increased wage requirements, new requirements to demonstrate recruitment and nondisplacement of American workers, restrictions on client-site placements and more. As the Senate now prepares its vote on the comprehensive reform package, attention is shifting to the House of Representatives.
Now, immigration reform needs the House. Many believe that pressure on the House to pass a comprehensive package will be heightened if there is a two-thirds or greater majority in the Senate. House Speaker John Boehner (R-Ohio) has said, however, that he will put no immigration bill before the chamber without majority support of House Republicans. With scant Republican support for a comprehensive bill, it is unlikely that the House will choose to take up a comprehensive package – either the Senate bill or a not-yet-completed draft that a bipartisan group of Representatives have been negotiating in past months.
Instead, the House may pass piecemeal reform. This is the approach that has been taken by the Judiciary Committee, which this week will mark up the SKILLS Visa Act, sponsored by Representative Darrell Issa (R-Calif.). The proposal contains employment-based visa reforms that are broadly similar to the Senate version, with some significant differences. For instance, the Senate version would increase the H-1B cap initially from 65,000 to 115,000 and allow for further increases in increments of up to 20,000, to a maximum of 180,000, depending on demand. The cap exemption for master’s degree graduates would rise from 20,000 to 25,000 and now be exclusively for STEM degree holders. The Issa proposal in the House would immediately raise the H-1B cap to 155,000, but with no further incremental increases, and double the master’s exemption from 20,000 to 40,000. Its immigrant visa provisions, however, would fall well short of the Senate version in eliminating the extreme employment-based green card backlog or ensuring an adequate future supply. And its wage requirements are even higher and more broadly applicable than those in the Senate bill. Both the House and the Senate bills would create a STEM education fund to help ensure that Americans have the opportunity to gain the skill sets needed to fill the jobs in a knowledge economy.
A boost in access to foreign professional talent, particularly in STEM fields, is so desperately needed that Silicon Valley has reached new heights of political activity to help secure passage of immigration reform. A large tech-led group has run advertisements to support Republicans favoring comprehensive reform. Another Silicon Valley technology consortium is launching a website, “Keep Us Here,” to emphasize a central message to Congress: if immigration reform does not pass, a widening skills gap will force the industry, which very much wants to keep and create jobs in this country – instead to relocate operations to countries where there is adequate access to the needed talent. Some firms have already begun shifting certain operations to alternative locations, in part due to the paucity of skilled worker visas in the United States and the skills gap in STEM fields that our nation faces.
Other types of immigration not based on employment are also net positives for the economy, and there have been numerous studies lately to show the cumulative economic effects of all immigration. A new Organization for Economic Cooperation and Development (OECD) study shows that most discretionary spending, such as military spending, is completely unaffected by immigration. It also reports that immigrants are positive net contributors to the cost of benefits programs. Further supporting that conclusion, a recent Harvard Medical School study showed the net foreign-born contribution to Medicare between 2002 and 2009 to be a surplus of $115 billion, while the American-born contribution was a deficit of $28 billion.
The Congressional Budget Office has released a budget impact report for the Senate bill, stating that the comprehensive reform bill would reduce the budget deficit by $1.1 trillion over twenty years, provide a strong boost to the economy, and not negatively impact U.S. workers. Indeed, recent statements and analyses from the conservative American Enterprise Institute, the progressive Brookings Institute, and the libertarian Cato Institute converge in agreement that immigrants do not take net jobs from Americans but rather create them.
This is a pivotal political moment for not just the tech industry and other employers of the highly skilled, but for U.S. employers across the American economy, and indeed for the overall economic interests of this country and its workers. It is also a rare opportunity for large-scale overhaul that the country cannot afford to waste. Now is the time for responsible reform that supports and benefits American enterprise, and to fail now could stunt the growth of the U.S. economy for decades to come.
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 firstname.lastname@example.org. Benjamin Lunsford, 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.