Immigration is a divisive topic - that much can be agreed on. Emotionally fueled drivers such as cultural biases, preconceptions and misconceptions, racism and fear continue to influence both opponents and proponents of various immigration policies, as they have consistently throughout U.S. history.
Conflict over immigration dates back before the Civil War. The American industrial revolution in the second half of the 19th century made European immigrants a valuable commodity since they were willing to work long hours at low wages and did not threaten to unionize. Those who feared the impact of these laborers on the American-born workforce tried to persuade Congress to restrict immigration, but their pleas fell on deaf ears. In fact, Congress passed the Act to Encourage Immigration in 1864 when immigration slowed during the Civil War. The pace picked up again after the war, with a total of 27.6 million immigrants entering the U.S. between 1881 and 1930.1
But they were not universally welcomed, and several factors contributed to the growth of restrictive immigration policies beginning in 1875 and eventually leading to the 1920s quota laws which substantially reined in immigration. These factors included prejudice against Italians, Poles, and Jews, the widespread post-Civil War use of immigrants as strikebreakers, and emergence of the eugenics movement in the early 20th century.2
Mired in Unproductive Rhetoric
Throughout the 20th century and into the 21st, an abundance of rhetoric has continued to color both sides of the immigration debate. Meaningful extrinsic data exists but is almost universally ignored. For example, opponents of higher caps on H-1B visas frequently argue that they are protecting American jobs. However, according to the National Foundation for American Policy, "the reality of the global economy is that employers and their capital will follow the talent - wherever that talent is permitted to work and flourish. 3 The report notes that as a result, restricting the hiring of highly skilled foreign nationals actually limits job creation and innovation in the U.S.
Testifying before Congress earlier this year, Microsoft Corp. Chairman Bill Gates made the same claim. He cited a survey by several universities that firms with at least one foreign-born founder created 450,000 new U.S. jobs in just 10 years, and mentioned another study that showed five additional jobs are created for every H-1B visa holder hired by technology companies.
Due to the emotional nature of the issue, false mantras and knee-jerk responses rather than hard facts tend to dominate the discussion. Mired in opposing positions, no one focuses on the most important issue: The outdated immigration system no longer reflects the changing needs of the United States.
To make matters worse, numerous competing special interests - including the U.S. economy, U.S. business, national security and family unity - have created a convoluted framework for the current national debate on immigration. As a result, the debate jumbles together multiple issues ranging from economic development and visa quotas to worker rights and humanitarian concerns, creating a tangled stew that defies satisfactory comprehensive solution.
Congressional efforts to introduce comprehensive reform in 2007 failed because there were simply too many competing interests. The key to revamping America's outmoded immigration system lies in involving knowledgeable and influential leaders in meaningful dialogue based on extrinsic data rather than oft-repeated myths and emotional hyperbole . Utilizing this approach, key issues important to each interest group can be identified and ranked in order of critical importance, then addressed separately with appropriate legislation. Plainly put, it's time to go back to the drawing board.
Outdated System No Longer Reflects National Needs
The U.S. immigration system is so outmoded it is virtually beyond repair, requiring complete rebuilding - not merely updating. This is especially true in terms of its inability to meet the needs of U.S. businesses. The current system is based on premises that made sense in the 1950s and even the 1970s but no longer apply in today's highly competitive global economy.
Prior to the technology boom in the 1990s, U.S. companies hired a few workers with a specific technology-related skill set. Now, however, technology comprises the core competency of entire corporations, generating a substantially expanded need for technologically expert employees. To remain cutting edge, innovative companies need to recruit all layers of technology talent, from entry-level software developers to the best and brightest Einsteins - and it's proving to be a challenging task.
American companies, large and small, increasingly find they must go beyond U.S. borders to recruit the talent they need. Human resource professionals in the U.S. reported that shortages of citizens and legal alien worker candidates with highly scientific and/or technical skills posed their most significant challenge, in a recent survey by the Society for Human Resource Management and the Canadian Council of Human Resources Associations. The largest percentage of respondents from the U.S. - 25% - identified the inability to successfully recruit citizen and legal resident alien workers with the necessary skills as their primary reason for recruiting and or/hiring foreign national workers.
Current System Impedes U.S. Businesses
Even though concrete data about the true hiring needs of companies is sparse, evidence that the existing immigration system does not support the needs of American businesses can be seen in several areas. These include:
Shortage of workers. Organizations representing a broad spectrum of U.S. industries find it difficult to fill available positions, both professional and low-skilled - a challenge compounded by current immigration policy. For example, U.S. hospitals have a recognized shortage of healthcare workers, and the immigration options available for recruiting employees outside the U.S. fall far short of the needs. In other cases, U.S. restaurants, hotels and food processors are often staffed by the only workers willing to take those jobs, a large majority of whom are unable to obtain authorization to work and live in the U.S.
In addition, many large technology companies suffer business development constraints resulting from their inability to fill critical positions, particularly in light of the legislated cap on H-1B visa applications. Gates told Congress, for instance, that the cap prevented Microsoft from getting H-1B visas for about one-third of the qualified foreign nationals it had hoped to hire in 2007.
Misuse of visa categories, including H-1B and L. The intended purpose of H-1B visas was to help companies hire foreign nationals to staff small I.T. departments in manufacturing, health care, food processing or other non-technology industries, enabling them to increase their competitiveness or address specific concerns such as Y2K. However, with the shift to technology as a core competency rather than an ancillary or temporary need, some companies have attempted to use the visas to hire their entire workforce. The high-tech visa program is also undermined by foreign companies and multinational corporations (MNCs) that use a significant amount of the limited visa allotment to hire foreign nationals to work at their U.S. branches rather than as intended for U.S. employers.
With more than 160,000 H-1B visa applications submitted this year for the 65,000 slots in the lottery, it is clear demand far outstrips supply. As a result, some companies try to hire foreign workers via other categories, such as the L, even though those visas may not be the best fit. This abuse further distorts the already dysfunctional immigration system. On the other hand, without exploring and possibly exploiting these options, companies may not be able to hire the skilled foreign talent necessary to grow and strengthen their global competitiveness.
Antiquated, irrelevant visa categories are still available. The global economy has continued to develop while the immigration system has remained static. As a result, there are strict limits for certain visa categories in high demand, yet entire other categories remain largely unused by U.S. employers. For example, E visas were originally created to encourage U.S. trade with foreign countries. The visas were granted to employees of international companies based in countries which had entered into Friendship, Commerce and Navigation (FCN) treaties planning to carry on substantial trade in the U.S. The intent was to provide favored treatment to citizens and entities of FCN treaty countries to stimulate trade and cooperation.
However, following the creation of the World Trade Organization (WTO) in 1995, this category became largely irrelevant. Today, the WTO has nearly worldwide participation and features a "Most Favored Nation (MFN) clause, which requires each member to afford the same benefits and privileges to other members as they afford their most favored nation. That means non-FCN treaty countries should now also enjoy the benefits provided by the E visa as long as they are members of the WTO, thereby negating the need for the geographical restrictions that currently exist within this visa category.
Major Overhaul Long Overdue
Although the U.S. immigration system has been in urgent need of a major overhaul for years, several factors have helped thwart comprehensive immigration reform. Diverse interests and issues of concern, including family unity, the economy, border security, sanctions and enforcement, and humanitarian matters are consistently treated monolithically in the immigration debate. Yet each of these issues generates different ramifications for America's economic, political and social landscape. Therefore, it becomes imperative to rebuild the framework of the immigration discussion from the ground up in order to promote meaningful reform. Initially, individual issues must be unambiguously defined and prioritized so that separate and effective legislative solutions can then be developed in a timely manner.
In addition, immigration reform efforts have been overshadowed by 9/11 and security concerns. These concerns have also fanned anti-immigrant sentiment, always a strong undercurrent throughout U.S. history. Despite America's reputation as a nation that consistently offers unmatched opportunity and freedom to newcomers from across the world, too often immigrants continue to be scapegoats and their contributions overlooked.
Repairing the U.S. Immigration System
Plain and simple, the U.S. immigration system - as it currently exists and operates - no longer works. Fixing it presents a daunting challenge, but action must be taken sooner rather than later.
Successful reform will depend on a multipronged approach. One, a critical mass of influential corporate and economic leaders must become involved in a high profile, data-based discussion of the issues, including testifying before Congress. Two, the U.S. president must be convinced to champion immigration reform and gain support for progressive legislation, as happened with the Civil Rights Act of 1964. And three, the U.S. needs to identify the national interests that must be protected and the issues that are of concern to business and the American public, then rebuild the immigration system around them.
This intensive re-evaluation will enable the U.S. to create a redesigned program to address each issue on its own merits, rather than perpetuating the intermingled and conflicting perspectives that currently hinder any productive discussion of immigration reform. Goals to focus on during this immigration reform process include:
Supporting the U.S. economy. This includes supporting U.S. companies and their ability to fully staff high-tech operations, possibly by reconstructing the H-1B program to deliver the required number of visas and impose restrictions that limit its use to its intended purpose, as pending legislation has proposed. It could also encourage MNCs to establish branches in the U.S., perhaps by expanding the L visa program to provide these companies with the opportunity to fully staff and develop their operations.
Protecting the U.S. labor market. Potential solutions to explore include geographic and industry allocation of visas. The minimum prevailing wage requirement already prevents employers from paying lower wages to foreign workers. Ideally, a corrected system - which would eliminate the current H-1B and L abuse - would clarify the issues and allow a more transparent view to the real problems.
Addressing additional issues important to Americans and immigrants. These issues include promoting family unity, embracing humanitarian concerns and enhancing border security, among others.
No matter what solution is ultimately devised, the price of doing nothing is becoming too costly in economic, social, and humanitarian terms. Focused dialogue on the most important and overlooked issue - the fact that the U.S. immigration system is outdated and often irrelevant - is the most effective and direct route to productive results.
References
1,2 "The H-1B Visa Debate in Historical Perspective: The Evolution of U.S. Policy Toward Foreign-Born Workers, Margaret L. Usdansky, Princeton University, Thomas J. Espenshade, Princeton University, The Center for Comparative Immigration Studies at The University of California, San Diego.
3 "Driving Jobs and Innovation Offshore: The Impact of High-skill Immigration Restrictions on America, National Foundation for American Policy, NFAP Policy Brief, December 2007.
