Few issues in the immigration debate enjoy the broad-based agreement that exists about how the U.S. should treat highly skilled workers.
Democratic and Republican lawmakers largely agree that it should be easier for the United States to attract and retain experts in specialized fields of work. Companies large and small want the ability to hire more such immigrants. And the workers themselves — thousands of them, from all over the globe — want to come.
Yet plans to revise the H-1B visa program, which is the primary vehicle for workers to live in the U.S. — and often a precursor to citizenship — have been tied to a comprehensive immigration bill that has a very uncertain future.
Problems in the current system are well known. Employers complain there are not enough visas and applications for green cards are badly backlogged. Workers say wait times can stretch for years and leave entire families in a state of limbo. If the Senate's immigration plan passes, the number of H-1B visas will rise from 65,000 a year to between 115,000 and 180,000, based on a market formula. But that's a big if.
There are also those who argue that the H-1B program has been that it encourages companies to hire cheap foreign workers rather than retaining or retraining people in the U.S. workforce. Indeed, a paper authored this year by Brookings Scholars Neil Ruiz and Jonathan Rothwell found that H-1B workers are actually paid more than their U.S. counterparts with a bachelor's degree: $76,356 to $67,301.
While Congress may eventually find a path to revise the H-1B program, some businesses say they cannot wait forever for Washington to fix the system. Microsoft, for example, has more than 3,600 openings for computer scientists or engineers, most of which carry six-figure salaries.
"If, in fact, these caps aren't raised and green cards aren't provided, we will be forced to move jobs overseas," said Bill Kamela, the company's senior policy counsel. "That is our real predicament as a company. If we can't find and source the labor that we need, that we will likely have to, down the road, increase our presence in other countries around the globe."
Microsoft has done it before. When Congress failed to pass a major immigration overhaul in 2007, Kamela said, the company opened a facility in Vancouver as a direct response to ongoing challenges with access to foreign workers. On the other hand, the company also converts 95 percent of its H-1B visa holders to green cards, and will push to make sure there is reasonable pathway to citizenship for those workers.
"The competition to keep [H-1B workers] is incredibly intense," said Shelly Carlin, the senior vice president for human resources and communications at Motorola Solutions. "We're competing against companies who are promising these folks the fastest path to a green card."
'Russian Roulette With Your Life'
It's not always easy on the employee's end, either.
Pedro Sorrentino's experience with the H-1B program started the way it does for many people: at an American university. He enrolled in a graduate school program in digital media, design, and technology at the University of Colorado (Boulder). While he was there, he started his first company with two people from his native Brazil, which they sold after only 14 months. He found another job with SendGrid, a cloud-based service that improves e-mail delivery for businesses; he started work on a J-1 visa designed for educational or cultural-exchange programs, and he applied for an H-1B visa.
But his application was denied by U.S. Citizenship and Immigration Service. Sorrentino had to go back to Brazil and work as a contractor while his lawyers appealed his status. It ultimately took a letter from the office of Sen. Michael Bennet, D-Colo., to get Sorrentino the visa he needed.
"It was a very arbitrary decision," he said. "When you are a high-skilled immigrant in the United States; you are playing Russian roulette with your life."
But it was worth the hassle to stay in the U.S., where Silicon Valley start-up culture lures many entrepreneurs, he said. Sorrentino is certain he'll start another company, and he wants to do it in his current hometown of San Francisco. But first, he'll have to dive back into the bureaucracy to figure out how to get a green card.
"For me, happiness is about being surrounded by people that inspire you," Sorrentino said.
Not all stories have such a clean ending. Denis Kiselev, for example, owns his own company. The problem is that the U.S. immigration system won't allow him to apply for a green card if he's in charge.
Kiselev came to the U.S. in college to study economics at Ohio State University. He worked at the World Bank in Washington for a few years before moving back to Moscow to pursue career in traditional banking and finance.
While he was there, he met a software developer, and in May 2012 the two started SnapSwap, which develops payment and exchange services for virtual currencies and electronic games. But now, one of Kiselev's biggest obstacles is that an owner of an American company on an H-1B visa cannot be sponsored for a green card by his or her own company.
"I understand the reasons why this restriction is in place," Kiselev said. "U.S. immigration doesn't want somebody to set up a fake company and then apply for a green card on this basis. But for entrepreneurs like myself, it creates difficult issues."
There are some entrepreneurial visas, but none suited to Kiselev's circumstances, he said. Instead, he's banking on an immigration overhaul. The Senate bill would create a new investor visa that leads to lawful permanent residence status for immigrant entrepreneurs who create at least five jobs and receive either $500,000 in venture capital or investment, or who generate $750,000 in annual revenues within two years.
Kiselev said he hopes Congress reforms the system. If not, he said, "I don't see a good, clear solution for this problem."
Many small businesses also complain about the system. In 2010 and 2011, roughly 70,000 employers filed applications for H-1B workers. But almost half of them requested just one worker, and 94 percent requested fewer than 10, according to the Labor Department data compiled in a Brookings Institution study.
The byzantine system of hiring foreign workers can be a nightmare for small companies, which don't have the big legal and human-resources departments maintained by the big companies that request hundreds of applications for workers each year.
The program is "entirely out reach for most small businesses," said Peter French, who launched FreeFlow Research last October, a San Antonio-based organization that seeks to increase the population of students studying science, technology, engineering, and math, the jobs available to them, and the number of international entrepreneurs in the U.S.
The idea behind FreeFlow, which is still awaiting its 501(c)(3) designation from the IRS, is to establish itself as a nonprofit organization that is exempt from the H-1B cap on businesses (academic institutions are similarly exempt). It will then be able to provide talented foreign students at Texas universities with a 17-month extension on their F-1 student visas. This could help young companies better evaluate an international hire before committing the time and money to the process of sponsoring them for an H-1B visa. FreeFlow also hopes to establish an Entrepreneur Visa Fund to help offset legal and visa application fees for foreign-born entrepreneurs who want to start businesses in San Antonio.
"The story that's being told to young entrepreneurs in start-ups is that the H-1B program, in particular, is not for you," said French, who also said he thinks the demand for visas is understated because so many small businesses think they don't have a chance.
That's what the H-1B system has been like for Harvinder Singh, an Indian immigrant who came to the U.S. on an H-1B visa, naturalized, and then started his own IT staffing and consulting business.
His 20 employees are all based in the U.S., and he has 35 positions he can't fill. He's hired H-1B employees before, but the lottery system has deterred him in recent years.
"We haven't made much effort to bring people from overseas," he says, "because we understand the process now is extremely complex and extremely difficult."