All posts by Stuart Anderson

Stuart Anderson is the author of the book Immigration (Greenwood, 2010) and a researcher on trade and immigration issues. From August 2001 to January 2003, Stuart served as Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner at the Immigration and Naturalization Service. Before that he spent four and a half years on Capitol Hill on the Senate Immigration Subcommittee, first for Senator Spencer Abraham and then as Staff Director of the subcommittee for Senator Sam Brownback. Stuart has published articles in the Wall Street Journal, New York Times, and other publications. The views expressed in this blog are not intended to support specific pieces of legislation or candidates.
Immigration Blog

Senate Hearing Sends Signals for Immigration Reform

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Similar to a House hearing held earlier this year, a July 26, 2011 Senate Judiciary Subcommittee on Immigration, Refugees and Border Security hearing pointed toward agreement on the need to enact fixes to the employment-based green card system.

Committee Chair Charles Schumer (D-NY) titled the hearing “The Economic Imperative for Enacting Immigration Reform,” hoping to encourage such legislation to move forward in Congress. The hearing contained a remarkable amount of economic data and arguments in favor of liberalizing U.S. immigration laws, particularly in favor of allowing in more highly skilled immigrants.

Robert Greifeld, CEO of the NASDAQ OMX Group, testified, “Our world view must change to recognize that employers no longer have to locate jobs and workers because of physical capital requirements. Human capital is now highly mobile. The work product of STEM and other knowledge workers is just a plane ticket or an internet connection away.” He said NASDAQ supported “stapling” a green card to graduates of U.S. universities with a science, technology, engineering or math degree, and also support establishing a new visa for entrepreneurs.

Brad Smith, general counsel and senior vice president, legal and corporate affairs at Microsoft, noted the company had thousands of job openings for highly skilled positions. He also cited a 2010 University of Washington Economic Policy Research Center study that found Microsoft’s hiring of U.S. citizens, permanent residents and foreign nationals combined to create a “multiplier effect” creating 267,611 jobs in 2008 in Washington. “Through this multiplier effect, every job at Microsoft supported 5.81 jobs elsewhere in the state economy.”

Compelling Testimony on Green Card Backlog
One of the best things a Congressional hearing can do is put a human face on a problem. Dr. Puneet S. Arora, born in India and now a practicing physician in Los Angeles, CA, testified at the hearing on behalf of the organization Immigration Voice. Dr. Arora said though he had lived and worked in America for 15 years – and has two U.S. citizen children – he does not have permanent residency. He explained that due to the low annual quota for employment-based green cards combined with the per country limit, which affects potential Indian immigrants the most, he has been waiting years for permanent residence. In fact, he estimated it might be an additional 8 years of waiting before he could receive a green card.

The Old and the New
Hearings are often a way to gauge the views of members of Congress, particularly new ones. We have not heard much about their views on high skill immigration from either Senator Al Franken (D-MN) or Senator Richard Blumenthal (D-CT). By their questions and comments it appeared both are sympathetic to high skill immigration, particularly the plight of long-term green card holders. Senator Franken engaged in a long discussion with Dr. Arora, praising him for his previous work as a physician in Minnesota.

Veteran Senators Chuck Grassley (R-IA) and Jeff Sessions (R-AL) were less sympathetic. Senator Grassley said in a statement, “As part of the solution to America’s immigration problem, some policy makers have proposed the idea of giving immigrants a green card upon graduation . . . While it is important to keep the best and the brightest, getting a degree from a U.S. institution should not equate to a fast track to citizenship for all. Should this happen, the demand for enrollment in U.S. universities by international students would only increase and further erode the opportunities for American students.” He also discussed his efforts to encourage U.S. Citizenship and Immigration Services to root out fraud in H-1B and L-1 visas.

Senator Sessions scolded supporters of business immigration on the panel, saying they should not have supported comprehensive immigration reform legislation back in 2007. Sessions said he favored a point system similar to Canada’s. Under a point system, there would be no employer sponsorship and most family immigration categories would be eliminated. Instead, the government would set a maximum number of immigrants allowed in during a given year and award permanent residence only to those who achieve a specific number of points. The points would be determined based on characteristics such as age and education level.

Microsoft General Counsel Brad Smith said that a point system would take power away from individual employers to hire and sponsor the foreign-born employees they think are best and instead turn those decisions over to a bureaucratic government body. As a conservative Republican who often expresses skepticism of the federal government’s ability, Sessions seemed to understand the criticism, though did not appear to change his mind.

Reform Ideas
It appears the case was made that there is greater consensus on moving forward with reforms on employment-based green cards than on H-1B temporary visas. In fact, one of the risks for employers remains that efforts to liberalize green card quotas will be met by attempts to restrict temporary visas, such as H-1B and L-1. In addition, there are those who oppose narrow fixes to the immigration system, viewing smaller bills as a possible drain on efforts to achieve a broad comprehensive approach that deals with illegal immigration as well. These types of competing interests continue to make immigration reform a challenging proposition.

Immigration Blog

Labor Certification – Making it Hard for Talented Foreign-Born to Stay in the USA

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Many people would find it odd that after a company recruits for a position the federal government may require the employer to recruit again. That is the strange world of labor certification, a process required by law for many skilled foreign nationals to gain employment-based green cards. Given that Indians are the largest recipients of H-1B temporary visas each year, America’s questionable labor certification policy likely affects Indians more than any other group.

When sponsoring an individual for an employment-based green card, the Department of Labor mandates that employers place advertisements to show no U.S. workers are available to fill the jobs, detail recruitment results, and complete much paperwork subject to government review.

Surprisingly, the actual language of the law does not specifically say employers need to place advertisements. This is an invention of the Department of Labor. The law also does not specify that if employers “test” the labor market they must hire anyone “minimally qualified” for the job. These things come from the Department of Labor’s regulations.

Here is what the section of the Immigration and Nationality Act on labor certification states:

Any alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is inadmissible, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that—
(I) there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.


In the past, the Department of Labor has admitted its process is paperwork-intensive for both the government and companies. In 2002, when the Labor Department issued a proposed rule to revise the system, its own rule stated, “The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers, SWAs [state workforce agencies] and the Federal Government. It can take up to two years or more to complete the process for applications that are filed under the basic process and do not utilize the more streamlined reduction in recruitment process.”

While since then the Department of Labor has moved to a somewhat different system called PERM (Program Electronic Review Management), the new system is not much of an improvement. While PERM is theoretically faster in the initial stage, since it relies on attestations, the Department of Labor audits a high percentage of the cases. It also can force employers to engage in “supervised recruitment” if they hope to gain a green card for an employee. A chapter in the American Immigration Lawyers Association’s handbook declared, “Understanding PERM has been one of the greatest challenges in recent times in the practice of immigration law.” And PERM was meant to be the Department of Labor’s “streamlined” system.

The United States is making itself less competitive by requiring such a bureaucratic and counterproductive process for employers that wish to keep skilled professionals working for them long-term. “I have personally seen foreign nationals with U.S. masters degrees go to more welcoming countries abroad to settle because the U.S. system is so time consuming and complex,” said Ann Pinchak, a Houston-based attorney with more than 20 years of experience in immigration law.

If America hopes to retain the most talented workers in the world, a good place to start is reforming the Department of Labor’s labor certification policies. The policies do not “protect” American jobs but waste resources, discourage foreign-born professionals and make U.S. companies less competitive in the global economy.

Immigration Blog

News that Pakistan Spies on Immigrants Shows Risks Faced by Émigrés

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The New York Times recently reported the disturbing news that Pakistani immigrants to the United States may not feel safe from their government – even when living thousands of miles away from the homeland they departed. The news fits a pattern that shows immigrants often face risks most native-born American may find hard to fathom.

Credit: indiavision.comThe Federal Bureau of Investigation (FBI) discovered that Mohammed Tasleem, an attaché in Pakistan’s New York consulate, was engaging in systematic intimidation of Pakistani immigrants and temporary visa holders on behalf of Pakistan’s Inter-Services Intelligence (ISI). “Mr. Tasleem, they discovered, had been posing as an F.B.I. agent to extract information from Pakistanis living in the United States and was issuing threats to keep them from speaking openly about Pakistan’s government,” reports the New York Times. “His activities were part of what government officials in Washington, along with a range of Pakistani journalists and scholars, say is a systematic ISI campaign to keep tabs on the Pakistani diaspora inside the United States.”

The article describes how at conferences and seminars in the U.S. individuals would identify themselves as working for ISI and sometimes ask threatening questions. “The ISI guys will look into your eyes and will indirectly threaten you by introducing themselves,” the author said. “The ISI makes sure that they are present in every occasion relating to Pakistan, and in some cases they pay ordinary Pakistanis for attending events and pass them information.”

That’s not the end of the story. “Several Pakistani journalists and scholars in the United States interviewed over the past week said that they were approached regularly by Pakistani officials, some of whom openly identified themselves as ISI officials,” according to the New York Times. “The journalists and scholars said the officials caution them against speaking out on politically delicate subjects like the indigenous insurgency in Baluchistan or accusations of human rights abuses by Pakistani soldiers. The verbal pressure is often accompanied by veiled warnings about the welfare of family members in Pakistan, they said.”

Here is some free advice for the members of Pakistan’s government: If you don’t want people to accuse Pakistani soldiers of human rights abuses then do your best to make sure such individuals do not abuse human rights. Attempting to intimidate people who now live and work in the United States is counterproductive, making Americans less sympathetic to policy arguments that may be offered by Pakistan.

Visits to international students and scholars by officials of other governments are not unheard of. There are specific provisions in the U.S. immigration code designed to protect asylum seekers who fear repression under China’s one-child policy. Stories of Chinese government officials visiting one or more pregnant Chinese students in the United States helped make the case for such provisions.

It is difficult for immigrants or temporary visa holders to the United States to ignore threats (implied or otherwise) made against family members still living in their homeland. One can imagine the guilt experienced by someone who feels that by exercising the right to freedom of speech in America he or she is putting at risk a family member back home.

Middle Eastern governments are also known to keep tabs on nationals studying or working in the United States, although reports indicate a degree of subtleness in how they deal with such individuals in America. But as with the case of Pakistan, when Americans become aware of attempts to intimidate people working or studying in the U.S. they look unkindly on whichever government is doing the intimidating.

Immigration Blog

What Do Employers Find on U.S. College Campuses?

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Policy toward employment-based immigration is often mired in accusations that companies ignore U.S. citizens in the recruitment process. In reality, the issue is not companies hiring foreign nationals instead of Americans. It’s that when companies recruit on college campuses they find a high proportion of students in important disciplines are foreign nationals.

In 2007, U.S. universities awarded about half of master’s degrees and 73 percent of Ph.D.s in electrical engineering to foreign nationals, according to the National Science Foundation. Patents produced by foreign nationals are indicators that international students completing their studies not only make up a large proportion of new potential entrants to the labor market but also end up producing important innovations.

As Tables 1 and 2 show a substantial percentage of fulltime graduate students at U.S. universities in important fields are foreign nationals on student visas. Such visas do not allow an individual to stay and work in the United States long-term. To work for years in the United States an international student generally would need an H-1B visa.

Table 1

Percentage of Foreign Nationals in U.S. Graduate School Programs

in Selected Fields (2006)

Field Percent of Fulltime Graduate Students with Foreign

Student VisasTotal Fulltime Graduate Students with Foreign Student VisasStatistics

60.8%

1,960

Economics (except agricultural)

59.6%

5,966

Computer Sciences

58.4%

16,801

Cardiology

50.0%

16

Physics

45.9%

5,707

Chemistry

40.7%

7,712

Mathematics/Applied Mathematics

39.4%

4,862

Pharmaceutical Sciences

36.8%

1,650

Radiology

31.5%

58

 

Source: National Science Foundation/Division of Science Resources Statistics, Survey of Graduate Students and Postdoctorates in Science and Engineering. Tables 18 and 21 of Graduate Students and Postdoctorates in Science and Engineering: Fall 2006.


                                                                                    Table 2

Percentage of Foreign Nationals in U.S. Engineering Programs (2006)

Field Percent Fulltime Graduate Students with Foreign Student Visas Fulltime Graduate Students with Foreign Student Visas
Petroleum Engineering

83.9%

543
Electrical Engineering

68.2%

18,683
Mining Engineering

56.9%

103
Agricultural Engineering

56.6%

505
Industrial Engineering

56.5%

3,625
Mechanical Engineering

52.4%

6,640
Chemical Engineering

52.1%

3,241
Metall./Matl. Engineering

51.7%

2,390
Engineering Science

48.0%

795
Engineering (other)

44.6%

1,830
Civil Engineering

42.5%

5,554
Aerospace Engineering

39.3%

1,327
Biomedical Engineering

34.4%

1,948
Nuclear Engineering

33.0%

300
ENGINEERING (TOTAL)

54.1% 

47,484 

Source: National Science Foundation/Division of Science Resources Statistics, Survey of Graduate Students and Postdoctorates in Science and Engineering. Tables 18 and 21 of Graduate Students and Postdoctorates in Science and Engineering: Fall 2006.


In computer sciences, statistics and economics, international students made up 58 to 60 percent of the fulltime graduate students on U.S. campuses in 2006. In mathematics (39 percent), chemistry (41 percent) and physics (46 percent) the proportion of international students in graduate programs is also significant. In graduate level engineering programs in the United States, 47,484 of the 87,818 fulltime students (54 percent) were in the U.S. on temporary student visas in 2006.

When an employer recruits at a U.S. college and finds an outstanding international student a company can file for him or her to be on OPT (Optional Practical Training) for 12 months, with the possibility of an extension for an additional 17 months. At some point in that process, the individual could be hired on an H-1B visa, if one is available. If the individual was educated outside the country or OPT is not appropriate or the best option for that person, the employer would generally attempt to hire them directly in H-1B status.

Depending on their size, U.S. employers hire either all U.S. workers or some combination of Americans and foreign nationals. When companies recruit on campuses, they find a high percentage of foreign nationals in key fields. To ignore all these candidates because they were not born in America would concede many talented individuals to competitors. It would be difficult for companies to remain successful with such a policy.

Immigration Blog

Employers May Soon Need Approval From a Federal Database for New Hires

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It is surprising that only months after taking office on a platform of smaller government, House Republicans appear poised to enact a program that some consider to be quite a big government solution to illegal immigration. The legislation is H.R 2164, sponsored by House Judiciary Committee Chair Lamar Smith (R-Texas). It bears watching in the coming weeks.

E-Verify is an electronic employment verification that allows employers to send, generally speaking, the name and social security number of a potential new hire and get back an answer from the federal government as to whether that individual is legally authorized to work in the United States.

The key issue is not whether such a system should exist. The issue is whether the federal government should require every employer in America to use E-Verify, as mandated in H.R. 2164.

In theory it may make sense to have such a system for checking new hires. But in practice it may be an entirely different story. A new report I completed details some of the problems with making E-Verify mandatory. (A copy of the report can be found here.)

First, it is unclear whether the system will actually reduce illegal immigration in any significant way. A government report by the consulting group Westat found about half of illegal immigrants show up in the system as work authorized, primarily, it’s assumed, by using a false identity. In addition to identify fraud the system could be thwarted by employers that decide not to submit the names of employees suspected of being illegal immigrants.

Second, the errors in the databases are likely to affect individuals here lawfully who seek jobs but are mistakenly shown by the system to be not authorized to work. This could be a major problem, since even under the current system employers often go against protocols and “pre-screen” applicants. That means individuals may not even realize why they are not called back after a job interview.

Misspellings of names and naturalization can lead to errors in the database. It is not surprising that someone with the name Mukherjee or Chidambaram is more likely to have a database error than a guy named Smith or Jones.

By some estimates foreign-born individuals are far more likely to experience problems with the Social Security or U.S. Citizenship and Immigration Services databases than native-born. “E-Verify error rates are 30 times higher for naturalized U.S. citizens and 50 times higher for legal nonimmigrants than for native-born U.S. citizens,” according to Congressional testimony by Tyler Morgan of the National Immigration Law Center.

Third, employers should be aware that H.R. 2164 vastly increases fines not only for employing illegal immigrants but also for what may be considered paperwork violations or a failure to submit an individual through the E-Verify system. The legislation puts in place a system more complex than simply checking new hires. An employer is also required to check existing employees under certain circumstances, including if an employee starts working on a state or federal contract or is within 30 days of work authorization expiring. A government allegation that workers were misclassified as independent contractors (and not required to be checked through E-Verify) rather than as employees could potentially trigger fines of at least tens of thousands of dollars.

The House legislation provides a short window for this to be up and running. The largest employers would be required to use E-Verify within 6 months, employers with between 20 to 499 employees within 18 months, and those with 1 to 19 employees would be required to use E-Verify within 24 months. A Senate bill, sponsored by Senator Charles Grassley (R-IA) has a shorter window – one year for all employers – and requires all existing employees to be verified as well.

The House legislation could be marked up in the Judiciary Committee as early as this month. If it became law it could mark an enormous change in the operation of the U.S. workplace. Supporters of the bill view that as a good thing. Others are not so sure.