Date: Sun, 29 Jul 2012 23:10:51 -0700 From: Norm Matloff To: Norm Matloff Subject: more unilateral actions by DHS To: H-1B/L-1/offshoring e-newsletter A few years ago, the Bush administration extended the statutory period for the Optional Practical Training provision in the F-1 student visa. It had been 12 months, but was extended to 29 months for foreign students in certain fields. I emphasize the word "statutory" here; Bush flagrantly usurped Congress' role here. The Obama administration later defended the move when it was challenged in court by the Programmers Guild. Now the government is at it again, more extralegal policy changes: http://www.dhs.gov/ynews/fact-sheets/20120131-dhs-retain-highly-skilled-immigrants.shtm Granted, I believe the OPT change was wrong on economic grounds, but the constitutional issues are much bigger here. Indeed, I actually agree with one of the new proposals in terms of immigration policy, but I value our constitutional system even more. And for such shenanigans to come from a former constitutional law professor, well, for shame. For the record, I've been saying for years that the definition of "outstanding talent" in various aspects of U.S. immigration policy might be broadened a bit. Note carefully that I've also emphasized that the vast majority of foreign tech workers are NOT in the "best and brightest" league, but the definition probably ought to be tweaked. As always, the devil is in the details, which are not provided in the press release. I suspect, actually, that the new definition of "outstanding researcher" they have in mind could be something truly outrageous, say "publication in an international journal or research conference." It would be a rare researcher who didn't qualify under those terms. And no, even further expansion of OPT, indirect expansion of H-1B by giving spouses the right to work, and so on, do not make sense. Sorry to be so blunt, but this is just pandering to the special interests. Speaking of pandering, it is disconcerting to see an official government document invoke the language of those interests, notably the mantras "our broken immigration system" and "highly skilled immigrants." Sadly, the same phrases are beginning to appear in the writings of some researchers. Finally, concerning the claims of immigrant tech entrepreneurship: Most of the "studies" on this subject have been unscientific and egregiously misleading. A common example is counting any business with at least one immigrant founder as an "immigrant" business. One doesn't have to be a rocket economist to see the fallacy, does one? Nor does one need a PhD in the field to see that any analysis must take into account the businesses that might have been founded by Americans who were displaced from STEM, or worse, discouraged from entering it in the first place. Moreover, even very professional, careful analyses, such as those by Prof. Jennifer Hunt, have typically not taken into account the TYPE of business founded. According to work by Prof. AnnaLee Saxenian, a third of businesses started by Chinese-immigrant engineers are "PC wholesalers," i.e. assemblers of commodity PCs. A large number of the firms founded by Indian-immigrant engineers are in the offshoring business. Neither of these types of companies should be counted. And as I've stated before, with the possible exception of IBM, no firm, domestic or foreign, has been pivotal in the technological advance of the tech industry. Most of our immigration policy--family, refuge and asylum, what to do about unauthorized immigrants--is motivated by humanitarian considerations. Different people would draw the line on such policy at different places, of course, but I believe there is a shared belief in the humanitarian principle. The ostensible goal of the remaining aspect of immigration policy--employment based immigration--is the national economic interest. Thus central issue that should be addressed is the Internal Brain Drain caused by the large foreign influx. This Internal Brain Drain is demonstrable, certainly clear for example in the recent Washington Post article on life science post docs, and of course was predicted by the infamous 1989 NSF position paper. But such a central issue won't be addressed as long as our presidential administrations (note the plural) do nothing more than pander. Norm