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Back to School : Immigration and Education

camp counselorsAs I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts.  As she states it, it just seems to mean more to them.

This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.

All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school.[1] While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students.  Yet, as my sister-in-law always notes, they and their families work very hard to succeed.  And this success can be measured.

During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans.  Nothing could be further from the truth.

Here are some facts:

  • According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
  • According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.          

Fast-forward to what happens after these kids get out of college:

  • A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.

According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.

There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education.  While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.

Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status.  Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.

These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.

And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing.  Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America?  Among other things, immigration makes America great … and always has.

[1]Plyler v. Doe, 457 U.S. 202 (1982).

It’s H-1B Visa Filing Season, but is it “Cheap Labor”?

????????????????????????????????????????????????????????????????????????????????????????????????????Here we go again. The start of the H-1B nonimmigrant visa filing season is once again upon us. And once again, immigration practitioners around the country are having difficult conversations with their clients who wish to hire foreign nationals into what are called “specialty occupation” positions. But this year, with President Trump in office, will the conversations be different than in previous years?

As always, a (reminder) primer is in order. The H-1B nonimmigrant visa is a temporary visa that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” (e.g., architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts). These positions typically require at least a bachelor’s degree or the equivalent for entry into the field. Typically, a foreign worker with an H-1B visa is admitted to the United States for a period of up to three years, and his or her visa may be extended for a maximum of six years. (There are some exceptions to this.)

Notwithstanding what you read in the news, before an employer can file an H-1B petition with U.S. Citizenship and Immigration Services (“USCIS”), the employer must first take steps to ensure that hiring the foreign worker will not harm U.S. workers. First, employers must attest, on a Labor Condition Application (“LCA”) filed with and certified by the U.S. Department of Labor (“DOL”), that employment of the H-1B worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. (More on this below.) Employers must also provide existing workers with notice of their intention to hire an H-1B worker.

Since the H-1B category was created in 1990, Congress has limited the number of H-1B visas made available during each government fiscal year. The current annual cap is 65,000 visas, with 20,000 additional visas for foreign professionals who have graduated with a Master’s or Doctoral degree from a U.S. university. As I have indicated in previous articles, in recent years, the H-1B cap has been reached only a few days after the visas were made available.

Over the past year or so, now President Trump has spoken a lot about our immigration system, his theme being that we need to protect American workers. Although a lot of attention was placed on “building a wall” on our Southern Border, and making “Mexico pay for it”, a good deal was also said about overhauling other aspects of our immigration system, including the H-1B program.

During his campaign for president, then candidate Trump said the H-1B visa program was a “cheap labor program” that takes jobs from Americans workers.

Megyn Kelly asked about highly-skilled immigration. The H-1B program is neither high-skilled nor immigration: these are temporary foreign workers, imported from abroad, for the explicit purpose of substituting for American workers at lower pay. I remain totally committed to eliminating rampant, widespread H-1B abuse and ending outrageous practices such as those that occurred at Disney in Florida when Americans were forced to train their foreign replacements. I will end forever the use of the H-1B as a cheap labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.”

“Cheap labor program”? Reality or myth?

I’ve written so much about this in the past couple of years my head is about to spin. There is a plethora (yes, a plethora) of evidence that foreign workers fill a critical need in our labor market, particularly in the STEM fields (i.e., Science, Technology, Engineering and Math). Foreign workers, including skilled foreign workers, help create new jobs and new opportunities for economic expansion.

So how do H-1B workers impact wages? Well, for starters, here are a few things to consider. As I noted above, prior to filing an H-1B petition with USCIS on behalf of a foreign worker, the employer must first file and have certified an LCA with the DOL. The LCA contains several attestations that the employer is required by law to make before the DOL may certify the LCA.

These attestations include, among others, that the employer will pay the required wage rate to the H-1B workers employed pursuant to the LCA. The required wage rate must be the greater of (1) the actual wage level paid by the employer to all other individuals at the job site “with similar experience and qualifications for the specific employment in question,” or (2) the prevailing wage level for the occupation in the area of intended employment. Cheap labor program? I think not.

Another attestation the employer must make is that it will offer the same benefits package on the same basis to similarly employed U.S. workers and H-1B workers. Eligibility and participation criteria must be the same for all workers. H-1B workers cannot be denied benefits because they are “temporary employees.” The employer must also attest that employment of H-1B workers will not adversely affect the working conditions of workers similarly employed in the area of intended employment.

A violation of any one or more of these attestation can result in serious penalties to the employer, and ultimately in debarment from participating in the H-1B program.

So, what is the empirical evidence as to wages? According to one study, H-1B-driven increases in STEM workers were associated with a significant increase in wages for college-educated, U.S.-born workers in 219 U.S. cities. In fact, a one percentage point increase in foreign STEM workers’ share of a city’s total employment was associated with increases in wages of 7 to 8 percentage points paid to both STEM and non-STEM college-educated natives, while non-college educated workers saw an increase of 3 to 4 percentage points.

What else you ask? According to another study, from 2009 to 2011, wage growth for U.S.-born workers with at least a bachelor’s degree was nominal, but wage growth for workers in occupations with large numbers of H-1B petitions was substantially higher.

There is other data as well. And not only do H-1B workers positively impact wages, they positively impact employment rates as well.

Bottom line, there are too many myths (dare I say “fake news”) perpetuated about the H-1B visa category, and not enough focus on the important contributions H-1B workers make to the U.S. economy.

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