Immigration Reform Needed to Save Nacirema: Why Senator Grassley’s Comments to the Senate Judiciary Committee Represent a Major Step Backward for Informed Discourse on High-Skilled Immigration
In June 1956, Anthropologist Horace Mitchell Miner published an article titled “Body Ritual Among the Nacirema." In March 2015, Senator Chuck Grassley gave a statement to the Senate Judiciary Committee titled “Immigration Reforms Needed to Protect Skilled American Workers.” In their respective pieces, both Miner and Grassley deliberately describe facts in a way that makes something productive and effective sound absurd and even abhorrent. The difference is one is funny and thought provoking while the other is misleading and counterfactual.
In “Body Ritual Among the Nacirema" (Nacirema is American spelled backwards), Miner describes common habits like brushing one’s teeth in ways that makes the act seem less like a practice of most hygienic individuals and more like a bizarre cultural ritual of a far off civilization. In doing so Miner attempts to satirize anthropological studies on other cultures. He writes: “The daily body ritual performed by everyone includes a mouth-rite . . . . [T]his rite involves a practice which strikes the uninitiated stranger as revolting. It was reported to me that the ritual consists of inserting a small bundle of hog hairs into the mouth, along with certain magical powders, and then moving the bundle in a highly formalized series of gestures.”
In “Immigration Reforms Needed to Protect Skilled American Workers,” Grassley conflates issues, cherry picks facts and relies on inaccurate studies and unrepresentative anecdotes to make the legal employment of foreign workers, which brings high-skilled talent to U.S. companies and attracts top entrepreneurs and innovators, seem like a unregulated scheme intended to rip jobs from the hands of qualified American workers. Grassley states: “The lives of U.S. workers and families are on the line. Will we do everything we can to protect future generations who desperately want to work in the high skilled sector? Or, will we simply ignore the plight of those who have lost their jobs and had to train their foreign replacements?” Such sensationalism and misrepresentation of the facts surrounding legal employment based immigration—a critical driver of the U.S. economy and job creation—erodes educated and civil dialogue on these important issues.
Our U.S. immigration system is far from perfect and smart reform that reduces fraud, promotes national security, and attracts the best and brightest global talent, is needed and welcome. Rather than engaging in reasoned and educated dialogue that considers the numerous complexities of the immigration debate, Grassley presents a myopic view of the issues in an effort to instill a sense of fear, stifling progress on meaningful reform. We hope this article will help to flesh out the facts surrounding employment-based immigration of high skilled workers and leave readers with a more complete understanding of this complex issue.
H-1B VISAS: IMPORTANT VEHICLES FOR FOREIGN TALENT v. U.S. JOB KILLERS
The majority of Senator Grassley’s assertions focus on the H-1B nonimmigrant visa - the visa for “specialty occupations.” To sponsor a foreign worker for an H-1B visa the U.S. employer must demonstrate that the position requires an individual to hold at least a U.S. bachelor’s degree or equivalent in a specialized field related to the position. Senator Grassley remarks, “Over the years the program has become a government-assisted way for employers to bring in cheaper foreign labor, and now it appears these foreign workers take over – rather than complement – the U.S. workforce.” However, what Senator Grassley fails to mention are the extremely specific regulations and limitations already in place to regulate H-1B employers. First, there are only a fixed number of new H-1B visas granted each year. With the exception of certain exempt nonprofit, research, and academic institutions, employers seeking to file an H-1B visa must compete for one of only 85,000 H-1B visas available each year, 20,000 of which are set aside for holders of U.S. advanced degrees. Next, on top of the expense of filing the H-1B (government filing fees alone can exceed $3,000 in some cases), employers must agree to pay foreign workers a wage rate mandated by the U.S. Department of Labor, debunking arguments that H-1B workers are “cheap labor.”
In terms of oversight and review, there is the initial adjudication process by the United States Citizenship Immigration Services (“USCIS”) to determine eligibility in which employers must prepare and submit a substantive petition to USCIS, describing the H-1B worker’s job duties in detail and disclosing information about the company, including its location, finances, and number of employees. USCIS officers review this information before approving the visa petition and, in every case, have the authority to request additional evidence or to deny a petition outright. Finally, through USCIS’s Administrative Site Visit and Verification Program, Fraud Detection and National Security officers make unannounced visits to workplaces to conduct in-person compliance reviews as an additional way to verify information in H-1B visa petitions is accurate.
Senator Grassley also omits from his statements the fact that individuals are only permitted a maximum of six years in the U.S. in H-1B status. If employer’s wish to employ an H-1B employee for longer than six years, they must sponsor the employee for a green card, a highly technical, time consuming, and expensive process. While Senator Grassley notes that there is generally no requirement in the H-1B program that employers test the U.S. job market before employing foreign workers on a temporary basis, he neglects to point out that this is exactly what employers are required to do for green card sponsorship.
Through a process known as PERM Labor Certification, employers must ensure that there are no qualified, willing, and able U.S. workers to fill a position before offering it to a foreign worker on a permanent basis. This process requires employers to conduct vigorous recruitment activities, typically costing several thousands of dollars, over the course of multiple months before even filing the application. The process also requires that the employer agree to pay the foreign worker the higher of either the prevailing wage, assigned by the U.S. Department of Labor, or the actual wage paid by the employer to other workers in the position. Furthermore, employers are precluded from sponsoring a foreign worker for a green card if they have had layoffs within six months of filing the application unless they first notify and consider any laid off U.S. workers. Such measures prevent employers from undercutting U.S. wages and replacing U.S. workers with “cheaper” foreign labor. The regulations also prohibit employers from passing on any of the costs associated with this process to the employee. In many cases, therefore, the employer ends up spending significantly more to retain foreign talent.
In addition to ignoring the many U.S. worker and wage protections already built into the H-1B visa program, Senator Grassley also exaggerates statistics on annual H-1B visa usage, stating, “Even though the annual H-1B cap is 65,000, the actual number of foreign workers coming in through the program is much more because of numerous exemptions. For example, in Fiscal Year 2014, the agency in charge approved 315,857 H-1B petitions.” In conflating all the H-1B filings for a fiscal year into a lump sum, Grassley leads his listeners to conclude that the U.S. government granted over 300,000 new H-1B visas and admitted over 300,000 new H-1B workers into the U.S. economy. This is simply not accurate. The number cited by Senator Grassley not only includes the 65,000 H-1B visas for holders of bachelor’s degrees, it also includes for example, the 20,000 H-1Bs set aside for holders of U.S. advanced degrees, along with H-1B visa extensions filed by employers for H-1B workers already in the U.S., H-1B petitions filed to correct USCIS errors in a previously approved petition, H-1B petitions filed to amend information in a previously-filed petition, and H-1B petitions filed by employers transferring a foreign national’s H-1B visa from a previous employer. Thus the actual number of “new” H-1B workers admitted to the U.S. each year is significantly lower than what Senator Grassley would lead us to believe.
F-1 OPT: MECHANISM TO RETAIN U.S. EDUCATED FOREIGN TALENT v. UNREGULATED WORK AUTHORIZATION SUBJECT TO RAMPANT ABUSE
Grassley also takes issue with the work authorization provided to foreign students graduating from U.S. universities on F-1 student visas, called Optional Practical Training (“OPT”). He asserts that it provides a loophole through which employers can tap into an unlimited pool of work-authorized foreign students and offer them less favorable employment conditions and wages than U.S. workers. He neglects to point out, however, that these workers are largely protected by the same federal (and in some cases state) wage and hour laws as U.S. workers. As Kathleen M. Kundar, partner and employment lawyer at Fox Horan & Camerini LLP, confirms, “the Fair Labor Standards Act protects U.S. and lawful foreign workers alike when it comes to minimum wage and overtime pay requirements. Likewise, Title VII of the Civil Rights Act of 1964 prohibits wage discrimination based on national origin.” Employers are covered by these federal or state equal employment opportunity laws if they meet certain employee thresholds, typically more than 15 or, under some state laws, as few as 4 employees.[i] Therefore, there are still comprehensive worker protection and anti-discrimination laws in place that prevent covered U.S. employers from exploiting students working on OPT and paying them less than they would pay a U.S. citizen worker.
Senator Grassley also leaves out the important fact that students are granted a total of only 12 months of employment authorization to provide them with “practical training” in their field, after which employers must sponsor them for a temporary “nonimmigrant” work visa if they wish to continue to employ them. OPT, therefore, does not allow employers to “bypass the H-1B visa program,” as the Senator claims. While STEM (Science, Technology, Engineering, and Math) graduates are eligible for an additional 17 months of OPT work authorization, there is a high demand for these skill sets and foreign workers make up a significant percentage of graduates in these fields. A recent study by the Georgetown University Center on Education and the Workforce found that one out of every five engineering graduates from American universities are foreign. At the Master’s degree level, the ratio is closer to one out of two. And more than half of doctoral graduates in engineering were foreign students. “The more advanced the education level, the higher probability that STEM graduates are foreign born.”[ii] The study also found that there is a high demand for these skill sets in a variety of occupations outside the traditional STEM fields, such as business, digital marketing, and health, which also require STEM competencies, namely math, critical thinking, and analytics. Thus, the study concludes, “the demand for STEM competencies throughout the economy diverts STEM workers into nontraditional STEM occupations--making what seems like plenty, not enough to go around.”[iii] Therefore, stating that there are sufficient U.S. citizen STEM grads to meet the STEM needs of the U.S. workforce, does not paint an accurate picture of current supply and demand and this 17 month “STEM extension” of OPT is a critical tool for U.S. employers to retain STEM talent when faced with a limited number of H-1B visas.
L-1B “SPECIALIZED KNOWLEDGE” VISA: IMPORTANT TOOL FOR MULTINATIONAL BUSINESSES v. UNLIMITED SUPPLY OF WORK VISAS FOR FOREIGNERS
In addition to providing an incomplete and inaccurate depiction of the impact of the H-1B visa program on the U.S. workforce, Senator Grassley also instills the notion that several other important nonimmigrant work visas risk ripping jobs from the hands of American workers. One such visa is the L-1B visa, a temporary work visa that allows U.S. companies with a qualifying overseas office (typically a parent, subsidiary, branch, or affiliate) to transfer certain employees possessing “specialized knowledge” from the overseas office to the related U.S. office for up to five years. Grassley characterizes these visas as available in an unlimited supply, where nearly any foreign-born individual would qualify. In reality, any U.S. companies without overseas offices, or with overseas offices that do not share a qualifying corporate relationship with the U.S. office, are completely precluded from utilizing the L-1 visa category. The visa is further limited only to those employees possessing “specialized knowledge” and who have at least one year of full-time employment with the overseas office.
What constitutes “specialized knowledge” is, unfortunately, not clearly defined in the immigration regulations. Because the definition is neither simple nor clear, there exists confusion and inconsistent adjudication of L-1B petitions. In light of this, Senator Grassley concludes, “Because it is not clear which employees should be granted L-1B visas, and because there are no numerical limits on the number that can be approved each year, the potential number of beneficiaries is limitless.” In addition to ignoring the fact that only a limited number of companies even qualify to use the L-1B visa, Grassley fails to recognize that the confusion regarding what constitutes “specialized knowledge” results not in the limitless granting of L-1B visas but rather in the highest denial rate of all employment-based nonimmigrant visas. According to a National Foundation for American Policy (“NFAP”) brief released on May 18, 2015, the day after Grassley’s statements to the Senate Judiciary Committee, since 2008 there has been a steady rise in L-1B denials with 35% of cases filed in fiscal year 2014 resulting in denials. Moreover, the confusion regarding “specialized knowledge” has been so pervasive that in March 2015 USCIS issued a draft policy memorandum in an effort to clarify the definition of “specialized knowledge” and its application in today’s globally mobile workforce.
In light of Grassley’s unfounded concern that the potential number of L-1B beneficiaries is limitless (only 14,515 L-1B petitions were even filed in fiscal year 2014, with the number of approved petitions hovering just over 10,000), his proposed solution is to place a limit on the number of L-1 visas certain U.S. employers can file in a given year. This measure fails to consider the impact that discouraging employers from mobilizing a global workforce by bringing essential employees to their U.S. offices will have on the competitiveness and attractiveness of the U.S. as a major business hub for leading multinational companies. As the NFAP brief confirms, increased scrutiny and restriction by the government on L-1B visas has “made it difficult for companies to transfer their own employees within a company to work in America. In a highly competitive global marketplace, the consequence is that companies become more likely to move work out of the United States – or to invest less in America in the first place – to avoid the difficulties of the U.S. immigration system.”[iv] Senator Grassley’s increased restrictions on this already limited visa category are bound to have a chilling effect on international companies expanding into the U.S. market.
HIGH-SKILLED IMMIGRATION: JOB STEALER v. JOB CREATOR
Supporters of increasing immigration options for high-skilled workers, including President Obama and many of Senator Grassley’s colleagues on both sides of the aisle in Congress, continuously point to the numerous benefits that encouraging the immigration of foreign high-skilled workers and entrepreneurs will have on the U.S. economy and job market. Senator Grassley, however, fails to mention any of these in his statement. Rather, he argues that increasing visa numbers to allow more high-skilled workers to fill the demands of U.S. employers will only worsen conditions for American workers, stating that these efforts “only increase the supply of cheaper foreign labor.” The evidence, however, squarely contradicts this assertion and the Senator fails to address how providing insufficient visas to meet market demand and creating additional barriers for foreign startups and entrepreneurs will have a stagnating effect on foreign investors and foreign innovators choosing the U.S. as the place to apply their skills and to set up shop.
The current system’s inability to meet the visa demands of U.S. employers and foreign entrepreneurs is already beginning to result in a “brain drain” where top talent is looking more and more to other countries with less restrictive immigration options. For example, the Canadian government recently placed a billboard on the stretch of highway 101 connecting San Francisco to Silicon Valley, stating “H-1B Problems? Pivot to Canada. New Start Up Visa, Low Taxes.”[v] Canada is not alone in its efforts to attract foreign talent. In 2010, the Chilean government launched “Start-up Chile,” an accelerator program aimed at enticing foreign entrepreneurs to start their companies in Santiago. Likewise, a number of other countries, including Britain and Australia, have created programs in an effort to attract foreign entrepreneurs and startups.
Among the myriad statistics Grassley failed to mention are the numbers of jobs created by immigrants in the U.S. Although immigrants constitute only 13 percent of the population, they start more than a quarter of new businesses in this country. Immigrants and their children have founded over 40 percent of Fortune 500 companies and were responsible for the U.S. being home to companies like Google, eBay, and Yahoo!. In fact, studies show that “for every 100 H-1B workers, an additional 183 jobs are created for workers born in the U.S.”[vi] Moreover, in Silicon Valley, companies started by Chinese and Indian immigrants generated more than $19.5 billion in sales and nearly 73,000 jobs in 2000 and, as a 2002 study noted, “[t]he net benefit of immigration to the U.S. is nearly $10 billion annually.”[vii] Immigrant-owned businesses pay an estimated $126 billion in wages per year and provide jobs to one out of every 10 Americans working in the private sector, generating more than $775 billion in sales in 2010.[viii] The Georgetown University study also finds that “between 1995 and 2005, foreign-born STEM workers founded half of the firms in Silicon Valley and 25 percent of tech firms nationwide and, in 2006, were listed as inventor or co-inventor in almost a quarter of all international patent applications filed from the United States. Clearly, then, immigrants make an important contribution to the . . . workforce.”
Senator Grassley’s proposed immigration reforms tell the world America is not open for business. Entrepreneurs and small businesses are job creators and contributors to the economy. The obvious problem with making the U.S. a less appealing place for them to set up shop is that when these individuals cannot find a visa to allow them to open or expand their companies here, the U.S. misses out on their talent, critical innovation, and the jobs they create for U.S. workers.
"Body Ritual among the Nacirema", has been referred to as "a classic and apt example of how ethnocentrism can color one's thinking."[ix] Senator Grassley’s statement is a classic example of a politician selectively citing statistics in order to color the listeners’ thinking, create bias, and instill fear, rather than arming them with the salient facts needed to foster reasoned debate on this important issue. Senator Grassley states, “Ensuring that U.S. workers have the first opportunity at high paying, high skilled jobs in this country seems like a no-brainer to me.” Smart immigration reform that recognizes the increasingly global nature of our economy and the importance of attracting the best and brightest to set up shop in our country, bringing innovation, investment, and jobs, seems like a no-brainer to us.
- By Dana DiRaimondo and Sarah Schroeder
[iv] National Foundation for American Policy Brief, L-1 Denial Rates Increase Again for High Skilled Foreign Nationals (March 2015)
[ix] Preston, Frederick William (1988) Sociology: A Contemporary Approach pg 73