“Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history.” - Oscar Handlin
This three-week series is an object lesson in how hard it can be to write a column about immigration. When we began a couple weeks ago, the H1-B “final wage rule” was due for last-minute implementation, prompting denunciations and criticism from several experts who follow these regulations. Then, just a week later, implementation was delayed and likely will be ultimately stymied by the new administration. Or not.
A change of administration is obviously going to be tumultuous, especially as it relates to pending government-backed legislation. This kind of messiness is not confined to such events. Legal challenges, legislative pressure, agency leadership shake-ups, and even public outcries frequently lead to these kind of last-minute changes or even cause policy to be reversed entirely. Such is the world of U.S. immigration.
Depending on legislative challenges and political solutions is the only method for most people to approach glaring deficiencies and unfairness in our immigration system. This goes double for those skilled workers who are dependent on employer sponsorship for their path to residency and citizenship. There are, however, some other avenues that could be pursued to make the system work better without depending on the fickle and sometimes counter-productive judicial and political currents that dominate U.S. immigration discourse.
We have talked about electronic filing before. It is the future, or you could consider it a sort of catch-up program for federal agencies. It does seem a bit absurd that in a world where you can get a $500k housing loan or buy Gamestop stock online you can’t yet fill out an online application for a visa in most cases. When the IRS is leading the pack on a technology you know we really have a problem. Given the typical two decade lag between when society in general adopts a new technology and when government catches up we should be seeing most of the immigration benefits go e-file in the next few years. What does that mean for most people?
Well, unfortunately it’s probably not going to lead to a revolution right away. USCIS rolled out online filing for the N-400 citizenship application two years ago and it hasn’t led to a dramatic change in processing times. Unfortunately there are other factors like backlog, efficiency, funding, and staffing that affect these numbers. If you consider the circumstances, however, it is encouraging that despite the myriad challenges the USCIS faced in FY2020 the trendline in processing time is still going down despite the overall numbers of the factors aforementioned steadily going up (and a three month shutdown in Spring 2020). Electronic processing does make a difference.
Next, we must address the elephant in the room. The Department of State is absolutely abysmal when it comes to taking the approved labor petitions processed by the Department of Labor and USCIS and then turning them into actual H1-B visas. After navigating most of the significant regulatory hurdles, the foreign worker is finally ready to apply for their visa in their home country before heading to the United States. How do we handle this potential boon to the U.S. economy who has a sponsor that has already spent thousands of dollars and dozens of man-hours just to get them to this point? We give them a two minute interview with an inexperienced consular officer who has little to no time to review their qualifications beforehand. We take these world-class intellectuals and executives and subject them to a line of questioning along the lines of:
“Why do you want to work in the United States?”
“What does your major x have to do with your job y?”
“What do you do at company x currently?”
It’s not exactly precise, to say the least.
After 9/11 we learned a valuable lesson: Interagency cooperation is important. The U.S. immigration system seems to have missed this lesson. While certain aspects of the immigration process are reviewable and accessible to adjudicators at each agency, top-level coordination and communication is virtually non-existent. Any serious effort to address fraud and improve efficiency for H1-B adjudication must reduce the duplication of effort by each agency that is a result of zero working-level or management coordination.
Returning to the Department of State, there are a number of missions who have attempted to mitigate the relative inexperience of consular officers in general when adjudicating H1-B and L petitions by consolidating appointments to a single or at least fewer locations in the large sending missions. This may not survive the extended COVID-19 shutdown, when a massive catch-up effort will be required which may require an all-hands-on-deck approach. The benefit of this approach is that more experienced consular officers are dedicated to the specific task of adjudicating higher-complexity cases like the H1-B, which leads to better decisions, metrics, consistency, and processing time.
Some other important efforts involve changes to the visa process inside the United States (usually the domain of USCIS). In particular portability, or the freedom of those who already hold H1-B work visa to change employers at will, is an important issue that should be simplified and expanded. As we mentioned last week, mitigating the ill-effects of long green card wait times for employment-based green card applicants will also require more flexibility in the processing for H4 work authorization documents, which will allow the spouses of foreign workers to seek employment in the United States. Not to be forgotten are the children of H1-B workers, who need expanded visa options to remain in the United States while their parents wait years, sometimes decades for green cards.
Finally, it should not be forgotten that the permission to work and the conditions of the visas available for foreign nationals are also a function of bilateral, reciprocal agreements between the countries involved. While America benefits greatly from being a net recipient of foreign talent, with an eye toward the 21st century we should begin to consider to what extent foreign countries are providing opportunities for our citizens to travel and work abroad. A lot of Americans would be doubly disappointed to find that in the case of countries like China or India, who send many workers to the United States each year, the possibility of them conducting an open-ended search and later obtaining employment and a visa in those countries is far more difficult than the equivalent in the United States. Fair is fair, and until we address this imbalance these countries will continue to develop a competitive advantage against our workers by living and working more freely in the United States while our workers face barriers to doing the same abroad. This is something that primarily falls on our political leaders and the diplomats at the Department of State to tackle effectively.
Before we wrap up, we wanted to give a couple more links to H1-B related commentary that we feel offers good suggestions on how to improve the program. You can find those sites here and here.
Overall the H1-B program is a vital part of America’s competitive edge in the global economy. We can’t just rest on our laurels, however, and expect the world’s talent to just come to us. We must adapt and improve to offer opportunities to skilled workers, and at the same time we must resist the temptation to reduce the competition for jobs and economic opportunities to a zero-sum game between immigrants and citizens.
That’s about it for this week, thanks for joining us once again! Next week we are going to try something a little different. With immigration news coming hot and heavy each day in this new administration, we are going to shift gears a bit and try a new weekly digest format. We will still be providing commentary and analysis, but our long form blog posts will change to a sort of “as appropriate” feature depending on what specific issues are in the news. We hope that the last few months of in-depth features on specific types of visas and immigration benefits have been informative. We will continue to draw on them and update our long-form content as needed going forward.
Please join us next week for “Immiwonk: Immigration in the News”!
In the news:
Meet the 7 congresswomen who are steering Biden's immigration agenda in the House - I know we are supposed to be excited about the Biden immigration plan, but it would be nice to see some Democratic representatives from Texas, Florida, and New Mexico on this team instead of 6 out of 7 Californians (and a New Yorker). We need a plan that works for all of these border states and immigrant communities, and a voice from other areas that are dealing with the challenges that face border communities in other parts of the United States. A Republican friendly on immigration issues wouldn’t hurt either (does one exist?).
Immigration trackers want transparency, better data management; judges press for autonomy - This talks a bit about changes at EOIR which are important, and also spends some time discussing the work of Prof. Austin Kocher of which I am a fan. As we saw with the debate over police brutality, accurate statistics are critical in swaying public opinion on issues that authority would rather not discuss. Especially in this day and age, without facts and figures to back up your argument good luck cutting through the disinformation and misinformation floating around out there. At a minimum we should be demanding from our immigration system accurate data about who we let in, who we arrest (in general but also for immigration related issues), who we deport, etc. Until that happens it’s organizations like TRAC which will keep filling in the gaps.