Many People Agree on High-Skilled Worker Visas. So Why No Changes?

Brad Smith, Microsoft's general counsel and executive vice president, Legal and Corporate Affairs, testifies on Capitol Hill in Washington, Monday, April 22, 2013, before the Senate Judiciary Committee hearing on immigration reform.  
National Journal
Rebecca Kaplan
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Rebecca Kaplan
Sept. 4, 2013, 3:30 p.m.

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.

En­tre­pren­eur­i­al Di­lemma

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.”

Small-Busi­ness Frus­tra­tions

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.”

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