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It's a Small World: There are a ton of obstacles to navigate when hiring foreign-born workers

Tim Hayes

Sometimes it’s just easier to elope.

Think of the stuff you’ve got to endure just to say “I do” in front of a crowd of people. The invitation list, the invitations, the cake, the band, the menu, the music, the dresses, the tuxes, the decorations, the cookies, the pillow for the little ring bearer – then there’s his mother, her mother, the minister, the paperwork and a million other details.

No wonder some couples say “We won’t” and run off to say “I do” on their own.

When a person from another country wants to go to school or work as a professional in the United States, the hurdles of setting up a big wedding look like a walk through Mister Rogers’ Neighborhood. So sometimes it’s just easier for these folks to look for other alternatives, as well.

A World With Borders

“As an immigration attorney, I need to be an advocate for these individuals and I have to say that this is the worst immigration environment in recent history,” said Ellen Freeman, an immigration attorney with the law firm Buchanan Ingersoll & Rooney. “Changes in the law have been very slow. Big changes took place in 2003, after the fallout of 9/11, but what has happened since has, willingly or unwillingly, created an environment of nativism.

“It’s connected to the economic condition of the country, which fuels these moods,” Freeman said. “We saw the collapse of immigration reform in Washington last summer because congressmen were afraid to support it, even though they realized it was needed.

“There is a huge disconnect between immigrants we don’t want and those we do because they help power the U.S. economy in such a strong way through R&D,” she continued. “The comprehensive immigration reform bill had a very good solution to this issue by extending the ability to work and reside in the U.S. indefinitely. That’s what foreign nationals important to the technology sector covet.”

In the same way, technology-based companies covet these individuals because of their talent, skill, and desire to become part of the American economy.

That holds true locally, as well, particularly at the university level and among the many tech-driven startups that flow from those regional centers of research and innovation.

The problem, in a nutshell, comes from federal regulations governing how temporary non-immigrant visas get awarded. But even before they can be awarded, a perhaps larger problem is that so few are made available each year.

“Visa classifications are highly circumscribed, with quotas that are arbitrary and set ridiculously low,” noted Eric Bord, who practices immigration law at the Washington, DC, office of law firm Morgan, Lewis & Bockius. “To bring a skilled person with a bachelor’s degree in with an H-1B visa means they have to apply to get one of only 65,000 of these visas made available each year.

“Because of how that quota is allocated, all applications must be in by April 1 for a specific person in a specific job that cannot be filled until October 1,” Bord explained. “It’s very difficult, and success is further complicated by the fact that there are perhaps four applicants for every available slot – and that’s just for the higher-end people. If you want to bring lower skilled people in it’s also highly bureaucratic. The number of available visas is far below what employers demand.”

Bill Gates Weighs In

No less an authority than Bill Gates of Microsoft has weighed in on this issue. In an op-ed piece that ran in The Washington Post last February, Gates said, in part:

“American competitiveness also requires immigration reforms that reflect the importance of highly skilled foreign-born employees. Demand for specialized technical skills has long exceeded the supply of native-born workers with advanced degrees, and scientists and engineers from other countries fill this gap. This issue has reached a crisis point. Computer science employment is growing by nearly 100,000 jobs annually. But at the same time studies show that there is a dramatic decline in the number of students graduating with computer science degrees. The United States provides 65,000 temporary H-1B visas each year to make up this shortfall – not nearly enough to fill open technical positions.

“Last year, reform on this issue stalled as Congress struggled to address border security and undocumented immigration. As lawmakers grapple with those important issues once again, I urge them to support changes to the H-1B visa program that allow American businesses to hire foreign-born scientists and engineers when they can't find the homegrown talent they need. This program has strong wage protections for U.S. workers: Like other companies, Microsoft pays H-1B and U.S. employees the same high levels – levels that exceed the government's prevailing wage.”

Gates’ company, perhaps realizing that waiting for the government to address these issues would be foolhardy - made a tactical decision last summer following the collapse of the immigration reform bill in Congress - to build a major new software development center across the border from its Redmond, Wash., headquarters in Vancouver, Canada.

In announcing the move, Sharif Khan, Vice President of Human Resources for Microsoft Canada said locating the new facility in Vancouver offered greater access to recent computer science graduates from the Asia-Pacific region and allowed the company to recruit skilled programmers affected by U.S. immigration policies, stating, “There’s a restriction on the number of visas the company can get for foreign employees in the U.S. Canada’s slightly more inclusive in that respect.”

“Our immigration policy is undercutting entrepreneurs and U.S. businesses,” said attorney Bord. “The foreign-born employee has to leave the U.S. or jeopardize his or her entire future here. The end game for employers, unfortunately, becomes hiring who’s available, not necessarily the best or the brightest. Foreign nationals come to the U.S. to pursue an education and a career, so we attract a pool of creative, energized, competitive people who are then squeezed out – effectively sent back abroad to compete against U.S. businesses.”

Another aspect of the immigration minefield affects foreign nationals coming to the U.S. as students. The Optional Practical Training (OPT) component of student visas allows these individuals one year after completing studies in the U.S. to work in this country. After that, they have to change status, but once again there aren’t enough visas to keep them all, so they are forced to either return to their native countries or to some other part of the world where they can find work – and compete against American companies.

“The U.S. Department of State is making an effort to speed up the process of granting student visas” said attorney Freeman. “Foreign students bring dollars into the economy. They have to show that they have money to cover all four years of tuition already in the bank before they even arrive in the U.S. Europe is becoming more competitive in capturing these individuals.”

Gates addressed this issue in his editorial, as well, stating, “We should also encourage foreign students to stay here after they graduate. Half of this country's doctoral candidates in computer science come from abroad. It's not in our national interest to educate them here but send them home when they've completed their studies…During the past 30 years, U.S. innovation has been the catalyst for the digital information revolution. If the United States is to remain a global economic leader, we must foster an environment that enables a new generation to dream up innovations, regardless of where they were born. Talent in this country is not the problem – the issue is political will.”

Don’t Give Up

It takes enormous will for employers to comply with federal laws and regulations to hire foreign nationals, too.

“The whole process is counter-intuitive and completely unforgiving of even the slightest error,” said Bord. “Employers must get it right the first time. This is a discouraging description of the landscape, but at the same time the ones who succeed have a real competitive edge in a global market. You can’t give up.”

“Even if you as an employer abide by the rules, you know that the entire allotment of visas will be filled on the first day,” Freeman added. “Foreign nationals certainly are not taking jobs away from American applicants. These people are highly educated and know what they are supposed to be paid, so there’s no incentive for a company to skirt the rules.”

So, after painting such a bleak picture for technology companies hoping to retain foreign-born students or to hire foreign-born professionals, is there hope? Are there options available to still benefit legally from the talent these individuals offer? Can this wedding be saved? Or is elopement the only way?

“As an employer, you’re looking at ways of doing this, but you need to have an attitude of flexibility – even though the system can be totally inflexible,” said Bord. “We have a system that by intent or not keeps talented people outside the U.S. Graduates of MIT, CMU or Pitt who are educated here then find tremendous hurdles staying here, so it becomes a numbers game. Companies set up operations offshore to place visa applicants who can then transfer into jobs inside the country. It’s a lot easier this way than trying to hire them directly into a domestic job.

“These slots are going to go to somebody, don’t close the door before you even try,” he urged. “This system forces employers to become more creative about recruiting. But just remember that those young immigrants who stay are the ones on the cutting edge of American industry, like the founders of Google and Yahoo – really dynamic young technology companies. As daunting as it seems to hire and retain international talent, it’s important that U.S. employers not give up.” ■