Commentary

Foolish Misuse

Quite appropriately, today exposes another facet of the foolishness that is U.S. immigration policy. April 1st is the day each fiscal year when employers are allowed to begin filing petitions with the U.S. Citizen and Immigration Services (USCIS, formerly the INS) for highly skilled workers to be given what are known as H-1B visas.

H-1Bs allow employers to hire foreign workers in certain professional occupations. They are good for three years and can be renewed for another three. Though an H-1B cannot lead to a green card — so the foreign professional is tied to one employer and has to leave the country after a maximum of six years of being a productive member of society — it’s still a pretty good deal.

America continues to maintain an incomprehensible and counter-productive immigration policy… ”

The problem is that, even in this apparent economic downturn, there aren’t enough of these visas: Congress limits the number of H-1Bs that can be granted each year, and that magic number has been set at 65,000 for five years now. Before that, and in response to the technology boom of the lat’ ’90s, Congress temporarily raised the H-1B cap to 195,000. But that expansion expired in 2004, and the cap has been reached earlier and earlier each year since.

In 2005, that meant August. In 2006, it was May 26. Last year, the cap was reached… the very first day you could file. Yes, by the afternoon of April 2, 2007 (April 1 was a Sunday), USCIS had received over 150,000 H-1B applications. Officials quickly announced that they would randomly select 65,000 petitions from all those the agency had received in the first two days of eligibility.

Last week, with demand for the prized work permits only increasing, the powers that be decreed that the lottery would accept all entries received in the first five business days. USCIS simultaneously promulgated a rule prohibiting employers from trying to game the lottery by filing multiple petitions for the same employee.

As for the vast majority of employers and employees who will be out of luck, the immigration laws say, like so many “rebuilding” baseball teams this opening week, “wait till next year.” Except, in this case, next year means putting your business or career on hold until October 1, 2009 — the day people who secure H-1Bs for fiscal year 2010 can start work.

Now, why do I care about this issue so much? Because I myself am a foreign professional. No, not an engineer or scientist — haven’t taken math since high school — but instead, doing as Washingtonians do, a lawyer. Having practiced for a few years and served as a special adviser on rule of law issues in Iraq, I recently moved over to a think tank.

My current employer managed to snag an H-1B for me, but only because I fit into an exemption for workers who have a post-graduate degree from an American university. This exemption has a 20,000-visa cap (all others requesting educational exemptions go into the general pool), which has previously been hit later than the regular quota but this year is also expected to require a lottery.

What has helped me along the way is that I come from Canada — my parents took a wrong turn at the St. Lawrence when we emigrated from the Soviet Union — which gets a special provision of un-capped visas under NAFTA. I had one of these visas when I clerked for a federal appellate judge, and again when working for my second law firm. Still, these NAFTA visas are only good for one year at a time, and I had to maintain the legal fiction that after being educated in the US and living my entire adult life here, I had no intention of staying. Coming from Canada also disqualifies me from the more famous lottery that annually awards green cards — no-strings-attached permanent residence, not to be confused with a work permit — to nationals of countries with low rates of immigration to the U.S.

But at least I get to be here, tenuous as my grasp on the American dream may be. As the H-1B petition statistics demonstrate, there are hundreds of thousands of qualified people with job offers in America who cannot realize their dreams in their home countries. These are people who, like my engineer parents, want a better life for their children and see the U.S. as a bastion of freedom and rule of law in an unruly time. They aim to leave places that, while not always oppressing them, have sclerotic economic systems less conducive to entrepreneurship and growth than America (India, France, most of the world).

The Comprehensive Immigration Reform Act of 2007 would have raised the H-1B cap to 115,000 visas, with annual 20-percent increases if the previous year’s quota is met, but of course the Senate rejected that legislation. Neither the reform the Senate passed in 2006 nor the House’s STRIVE Act — a bill combining increased border security with a guest-worker program — contemplates the doctors, scientists, and software developers (forget lawyers and pundits!) the country desperately needs to compete in the 21st century. And, to repeat an earlier point, even those in that category who make it here have to leave just as they’ve planted roots and become increasingly assimilated.

Thus America continues to maintain an incomprehensible and counter-productive immigration policy, damaging both pocketbooks and heartstrings from Silicon Valley to the Bay of Bengal. Unless Congress and the White House do something to fundamentally reshape immigration rules with respect to skilled workers — setting aside for the moment the gardeners and construction workers who get all the news coverage — things will only get worse.

If only this were all a bad April Fools’ joke.

Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute.