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Angelo Paparelli on Dysfunctional Government

Out of the Immigration Closet

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This is not a post about the injustices afflicted on same-sex couples by U.S. immigration law and policy. Rather, it raises the pressing need for American business leaders to stand up for themselves by "coming out" about their use of the employment-based immigration laws. 

In my 30 years of immigration practice, I've gained a plethora of insights from the C suite about how immigration is an essential strategic tool to help achieve business mission.  I've also heard and participated in boardroom tirades on the inefficiency, impracticality and sheer dysfunctionality of U.S. immigration laws, regulations and procedures. 

What I have not heard from reputable businesses are professions of any intent or willingness to flout the immigration laws.  The enterprise clients I represent want to understand and abide by the immigration laws and to use them to pursue lawful means of making profits. 

What I have not observed, however, is any discernible pattern among virtually all companies to speak out by name in support of changes to the immigration statutes that would empower American firms to compete more nimbly and profitably in the global economy.

The duty of client confidentiality prevents me from reporting the facts on the ground with specific details but I know from countless experiences that when businesses hire the best brains and talents without regard to the serendipity of country of birth, creativity, innovation and profits all increase.  I also know that when American immigration laws and procedures create unworkable obstacles, economic development moves abroad. 

Instructors in PR 101 teach a basic rule:  "Never let the opposition define you."  Geekdom puts it another way:  "Information wants to be free."  Immigration reporters phrase it thusly:  "Do you have any corporate clients willing to talk with me about their experiences with the immigration laws?  The answer I offer them is always the same:  "My corporate clients will talk if you shield their identity."  Reporters and editors uniformly refuse, and the story never makes headlines.  Or worse yet, partial truths are published that mislead by omission and the unavailability of the other side of the story.

A case in point is a February 17, 2010 Economic Policy Institute's Briefing Paper, "Bridge to Immigration or Cheap Temporary Labor? The H-1B & L-1 Visa Programs Are a Source of Both," by Ron Hira, an associate professor of public policy at Rochester Institute of Technology who has written numerous screeds couched in scholar's prose opposing employment-based visas.  Prof. Hira's latest piece on the H-1B and L-1 visa seeks to identify and decry the practices of specific businesses in sponsoring workers in these nonimmigrant categories, and offers his own policy prescriptions:

To fix the H-1B and L-1 guest worker programs, we should institute workable, effective labor market tests and give U.S. workers an enforceable right to jobs for which they are qualified before admitting temporary foreign workers to compete with them. Congress should ensure the nondisplacement of American workers, ensure guest workers are paid at least market wages, and audit employers regularly for compliance. The rules that tether H-1B employees to the employer that sponsored them should be changed to allow them freedom to seek other employment after a short period, certainly no more than one year. The current system is simply broken, allowing the programs to run out of control and work against their stated purposes.

I know of no business leaders who believe Hira's proposals would help our economy grow or improve the lot of our citizens.  I also know, as do my business immigration clients, that many of Hira's proposals are already contained in existing immigration laws and regulations.  The Immigration and Nationality Act is replete with labor market tests, audit powers of immigration agencies, and the ability of an H-1B worker to become untethered from one's current employer through provisions allowing job portability.

Hira is right, however, about one thing: 

If the goal of our skilled-immigration policy is to capture the best and brightest, then we ought to align our policies to meet those goals. In order to make that alignment we need far better information on how the guest worker visa programs and employment-based permanent residence are connected.

Current employment-based immigration rules do not promote the economic needs of the nation and the well being of our citizens. The laws, regulations and procedures, based largely on outdated legislation passed in 1990, with modest accretions every few years, hamper the ability of American businesses to create jobs in this country for citizens and non-citizens alike. 

If we are to achieve enlightened business immigration reforms, American employers must "out" themselves.  They must not be afraid to acknowledge and explain in very public ways that they use legitimate means under exisiting immigration rules to increase profitability and prosperity for Amercan stakeholders.  They must overcome their understandable fear of a certain maxim ("the nail that sticks up gets hammered"). Instead, they must visibly support changes that would take the "dys" out of "dysfunction" when describing the nation's immigration laws.

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  1. James H. Murphy's Avatar
    "The Immigration and Nationality Act may be replete with labor market tests" but they do not apply to H-1Bs or L-1s. H-1Bs do have the ability to become untethered from their current employer but it requires the new employer to keep the job open for months while the paperwork is processed. The Department of Labor has no authority to challenge the wage the employer declares to be the prevailing wage. That all adds up to Americans being replaced by cheap foreign labor.
  2. Angelo Paparelli's Avatar
    Mr. Murphy:

    You are right that the L-1 visa category contains no labor-market test (because "intracompany transferees" by definition are sent to the U.S. to work for an affiliate of a related company abroad). To qualify for the L-1 the individual must have worked abroad for one of the last three years as a manager, executive or person with specialized knowledge and intend to perform like duties in the U.S. for the same employer or a subsidiary or affiliate. A labor-market test in that context would be futile, given that the internal experience or knowledge gained with the related company abroad could not be found in the U.S. labor market.

    The H-1B visa category does carry with it a labor-market test for employers who have broken the rules before ("wilful violators")or who are "dependent" on H-1B workers, e.g., if they are 15% or more of a large employer's workforce.

    The Labor Department has explicit authority under the Immigration and Nationality Act and its own regulations to "challenge the wage the employer declares to be the prevailing wage." DOL can order back wages and other remedies as well.

    Since the premise of your comment doesn't hold up, neither does your conclusion.
  3. Ahmad's Avatar
    it is complete hypcsrioy. American people are so critical about immigrants (illegal and legal). I m sure when American people visit other countries they feel the same about us. I really couldn t believe that at one point in time there were 4 million members of the KKK. I also agree with Dr. Richards about not knowing a solution to the problem. I really think there will never be a real solution. Some Americans are always going to be unwilling to let immigrants into our country. I agree that we do need a way to have everyone documented but I am not against people coming into the country. The people coming to America are coming to try and make a better life for their family, to find jobs, or to receive opportunities that aren t given to them where they live. I guess there s never going to be a yes or no answer to the immigration question.
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