Three Ways Congress Can Fix High-Skilled Immigration

- Thank you for joining us. I'm Paola Sapienza, the JP Conte family Senior fellow at Hoover Institution at Stanford University. And I'm here with Amy. Nice Distinguished Immigration Council at the Institute for Progress and Distinguished Immigration Fellow at Cornell University. Today I'm going to ask Emmy, who has extensive experience studying and working on US legal reform to help attract and retain international STEM talent. What can we do better? What reforms would be feasible?

- Well, I think that there are some things that Congress can do where I like to call it, it's a mature issue. Things have been discussed for several congresses. There's been bills introduced, there's been some bills introduced that are bipartisan. There's been some bills introduced by both Republicans and Democrats. So I'm gonna give three examples of things that I think actually are doable that Congress could pass that would improve our immigration system. So one issue is Congress realized with regard to the H one B program quite some time ago, 1998, that if there were employers that were depending on the H one B program, that we couldn't necessarily presume that they were engaging in a talent search in the United States. And they required employers who were H one B dependent to document that they recruited in the US labor market and why Americans weren't qualified, and to document that they have not displaced Americans.

- So wait, wait. So what's the, however, I'm, I'm is a clarification question. So what are employers that are dependent on H one bbbs? So,

- Sorry. So in Congress' wisdom, it's been determined that an H one B dependent employer is one that has at least 15% of their US workforce are H one B. In H one B status.

- 15.

- Yeah, one five.

- Okay.

- And so my point is, I say this is a reform Congress enacted this law, but it's not implemented. So there are zero employers that document that they have recruited and that they have not displaced because in 1998, Congress said, well if you're paying at least the median wage for computer related occupations, 'cause that's primarily what is being hired, what occupation is being hired within the H one B, then that's good enough. We don't, we trust that you're actually recruiting and paying, you're, you're paying fair wages. That was $60,000 in 1998. So today that's 110, 115,000. So today, as long as you pay more than $60,000 a year, you do not have to pre recruit or non-displaced. You can just hire people. And if you are a dependent employer that engages in outsourcing, consulting, and professional services and staffing, you could hire individuals from outside the United States who are already used to getting paid wages that are, you know, not 110 or 115, $120,000 a year and not have to ever show that you recruited in the United States. We could fix that by just updating this provision.

- Emmy, what else?

- Well, another concept is when this H one B category is oversubscribed, you know, three or four times the number of slots because

- Of the cap,

- Because of the numerical limits. If employers are actually hiring individuals for indefinite employment, just like they're hiring Americans, why do people have to go through the H one B as you know, the bridge to nowhere to wait forever for permanent status. So like an idea.

- So you're saying it was just a, so you're saying the majority of the people that go through the H one B, first of all, they have to go through the lottery and there is a cap for that. And you're saying this is a temporary visa, but many of the people that actually apply for the H one B are intending to stay longer. So why making them go through that visa? What else can they do?

- But I would say it also from the standpoint of employers. So the US employer is hiring someone to fill a position and they're hiring mostly Americans and a few foreign nationals. And they have to treat the foreign national differently. 'cause they have to go through this construct of this is a temporary status and you're tied to the employer. And you know, is there another way? And I think there is, so for example, there's a bill called the Fortress Act that is for defense researchers that was developed in a bipartisan way by the House Select Committee on China. And the idea is to say there should be some individuals who are working in critical and emerging technology fields who get conditional green card status to do this important work. And their status is tied to the nature of their employment, not to their employer. And after a period of three years more screening and vetting confirmation that they're working in a critical and emerging field that's identified in the bill that's validated by the Department of Federal Department of Energy or defense as being something that is important, then these individuals could be like a small different pipeline with certain guardrails that isn't tied to H one B. And it seems like,

- So you're saying there, you know, now you're saying, and this is actually a proposal that existed Yeah. That we should think, especially for critical Yeah. Emerging technology and for special, critical needs where we should create alternative categories. Yes. They're much closer to the green card. They're not really the green card as we know it, huh? Because they have some temporary status and more conditions. Conditions, but is not these H one B temporary visa, which is subject to the cap.

- Yeah. And I'm sure Congress would impose a numerical limit on conditional green cards for these STEM experts. But it's separate from, again, pull out from the H one B category people that don't really have to be H one Bs. So I think that's one i one idea that that something that has some possibility of there being both Republicans and Democrats that could agree on a means for some number of international STEM experts to have access to status. And I, I think that this something that is a different way of,

- So this is a different way in which for some critical areas that would tie specifically this type of immigration process to industry sector. Yes. And will create some conditions, but at the same time will open up a new pathway.

- That's exactly right. And I think a third option that I think Congress is open to and could improve our immigration system relates to a concern that a number of organizations and advocates have pointed to on the side of being concerned about restricting US immigration. Which is, there's an exemption for many international students and scholars when they're employed in the United States to not have their employer withhold from their salary. Money is for social security and Medicare and so forth that we all have taken care of, taken out of our paychecks.

- So the, so the, this temporary worker under this temporary visa, these are like the optional training people.

- That's right.

- They don't,

- Sometimes they don't, are not, there is a complicated set of rules of when it is that they're subject to these withholdings. But sometimes the international students who get to work after they graduate are not subject to the same withholdings from their, from their salary.

- And you're proposing to equalize that. Equalize

- Between

- Domestic and international.

- Lets just take that issue off the table. Employers are not making decisions as to whether they should hire an international student based on this withholding, but there's a concern about it. It's been mentioned many times and it's something that's like a source of conflict and I think that Congress could fix that. And there's a bill right now that's been introduced in the Senate by Senator Tom Cotton to say we should eliminate this special exemption. And I think that that makes a lot of sense and it's something that could be, it makes sense to me.

- Yeah,

- Yeah. It just makes sense, Pao. Yeah. So those are three things that we could do that would make the system, the immigration system for high skilled immigrants, sort of more in tune to the demands of the day,

- The current economic situation, given that we haven't reformed immigration for a long time and the economy has changed completely. Thank you Emmy, for doing this. My pleasure. That's very helpful. Thank you so much.

- My pleasure.