Category Archives: Immigration Blog

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.

Immigration Blog

A Brief History of Indian Immigration to the United States

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So much attention is paid to current policy controversies that it is easy to lose sight of history. The history of Indian immigration to the United States is, to put it simply, recent history. I’ve put together data that show the stunning change in Indian immigration to America after the 1965 act removed the national origins quotas U.S. law. The data show that more Indians immigrated to the U.S. in the 1960s than had immigrated in the prior 140 years.

Immigration from 1820 to 1959

The history of Indian immigration to the United States can be divided into two periods. The first period is the time prior to the 1965 Act. The second, after the change in U.S. law that opened the door to immigrants from India and other countries that had been mostly barred as countries of origin for U.S. immigration.

Table 1 illustrates that few people from India came to the United States in the 19th century or the first half of the 20th century. For much of that period, arduous and expensive travel likely acted as a limiting factor. Between 1820 and 1959, only 13,363 Indians immigrated to America, compared to over 69,000 in 2010 alone.

Prior to 1921, immigration to the United States was essentially open, with some literacy and health requirements introduced in the early 1900s. However, the 1921 and 1924 immigration acts sought to exclude immigration from eastern European, Asian, and African countries. Anti-Semitism in the period made Jewish immigration and, to an extent, immigration from Italy, the primary targets for exclusion, more than the relatively small amount of immigration from either Asia or Africa.

Table 1

Indian Immigration to the United States: 1820-1959

Year Immigrants from India
1820 to 1829 9
1830 to 1839 38
1840 to 1849 33
1850 to 1859 42
1860 to 1869 50
1870 to 1879 166
1880 to 1889 247
1890 to 1899 102
1900 to 1909 3,026
1910 to 1919 3,478
1920 to 1929 2,076
1930 to 1939 554
1940 to 1949 1,692
1950 to 1959 1,850
Total 13,363

Source: Table 2, 2010 Yearbook of Immigration Statistics, Office of Immigration Statistics, Department of Homeland Security. Note: Country designation is by country of last residence.

The 1965 Act Changed Everything for Indian Immigration

Under the 1924 Act, which requires a separate, more extensive discussion, immigration from the “Asia-Pacific triangle” was limited to an overall ceiling of 2,000. As a result, extensive immigration from India was not possible. It should be noted that Congress legislated various exemptions from the quotas that enabled individuals to immigrate outside of the quotas.

The 1965 Act made several changes to U.S. immigration law but the most important was to eliminate the national origins quotas. Table 2 shows the dramatic change produced in Indian immigration as a result of the 1965 Act. One can see how Indian immigration has climbed post-1965. From 1960 to 1969, 18,638 Indians immigrated to the United States, in the 1970s, 147,997 immigrated. Indian immigration totals increased as well in the next three decades.

Table 2

Indian Immigration to the United States: 1960-2009

Year Immigrants from India
1960 to 1969 18,638
1970 to 1979 147,997
1980 to 1989 231,649
1990 to 1999 352,528
2000 to 2009 590,464
Total 1,341,276

Source: Table 2, 2010 Yearbook of Immigration Statistics, Office of Immigration Statistics, Department of Homeland Security. Note: Country designation is by country of last residence.

Table 3 shows that from 1950 to 1959, America received only 1,850 Indian immigrants. In contrast, from 2000 to 2009, 590,464 Indians immigrated to America. The 1965 Act, combined with the rise of Indian students and employment-based immigration to the United States, produced a dramatic change in the number of people coming from India to America.

Table 3

Indian Immigration to the United States: Pre- and Post-1965 Act

Year Immigrants from India
1950 to 1959 1,850
2000 to 2009 590,464

Source: Table 2, 2010 Yearbook of Immigration Statistics, Office of Immigration Statistics, Department of Homeland Security. Note: Country designation is by country of last residence.