Still Coming To America

Still Coming to America

By Mitra Kalita
The Wall Street Journal, March 27, 2009

Despite measures to curb migration into the U.S., the huddled masses are still lining up.

Theres proof of that in the queues outside U.S. embassies, from Mexico City to New Delhi. In this country, further proof might surface next Tuesday, as the government begins accepting applications to sponsor highly skilled workers on so-called H-1Bs into the country.

At J.M. Clayton Seafood in Cambridge, Md., workers, mostly immigrants, pick crab meat from the shell of Chesapeake blue crabs. (David Harp/Chesapeake Photos)

Bethesda, Md.-based immigration attorney Donald Mooers calls it his annual march to FedEx, as he sends off the paperwork needed to bring the workers in by the start of the next fiscal year. In years past, demand has doubled supply; 65,000 visas are available, with exemptions made for foreigners working at universities or holding a masters degree or higher. In 2007 and 2008, a lottery actually had to be held to winnow down the group.

This year, nobody thinks the demand will be quite that high but most immigration lawyers are fairly certain that the 65,000 cap will be reached. With U.S. unemployment soaring, why is that? Cant Americans do those jobs?

The question is at the heart of the debate over employer-sponsored immigration, in good times and bad. These being the worst of times, companies that happen to sponsor H-1s and yet have had layoffs are especially under scrutiny.

Microsoft Corp., for example, sponsored 1,037 H-1Bs last year. The technology giant also has laid off or plans to lay off up to 5,000 workers. Upon hearing this, U. S. Sen. Charles Grassley (R., Iowa) sent a letter in January to Microsoft CEO Steve Ballmer saying U.S. citizens should be favored over H-1B visa holders. These work visa programs were never intended to allow a company to retain foreign guest workers rather than similarly qualified American workers, when that company cuts jobs during an economic downturn, Grassley wrote. It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs.

(Grassley, incidentally, is expected to unveil legislation seeking reforms to the H-1B program sometime next week.)

Scrutiny also has come to those recipients of government bailout money, or the Troubled Assets Relief Program (TARP); under the stimulus plan, those companies must first try to hire Americans for vacancies.

The trouble with this, immigration lawyers, say is that employers rarely divide their work forces into Americans and everybody else. They tend to base hiring and firing on specific skills and needs, not country of origin, says immigration lawyer Elizabeth Espin Stern of Baker & McKenzie LLP.

(Critics would counter that employers favor the foreign workers because they earn less. That is technically illegal but the concern is not unfounded. Consider what tends to happen when H-1Bs finally get their green cards: they get a pay hike and a promotion.)

While the State Department considers the recipients of employer-based visas nonimmigrants, because they are temporary in nature, the reality is that these visas are the only way to legally enter, live in and work in the United States; securing a green card, by comparison, is an intensely competitive and delay-ridden affair. Stern actually says it might be easier to get into the U.S. nowthat is, if foreigners can find jobs. Provided that you are not being hired by a company that has received TARP funds, it is a great time to immigrate, she says.

Some economists have suggested that allowing more foreigners into the U.S. say, an immigrant buys a house in exchange for a green card would actually help jumpstart the economy.

The idea doesnt seem to be catching on but the numbers that turn up next week in sponsoring H-1Bs might turn the tide especially if demand again exceeds supply. Add that to the hundreds of thousands of foreigners still waiting for green cards and perhaps the day might come that the U.S. will start sending mortgage applications with the visa forms?