Date: Sat, 7 Oct 2006 23:45:24 -0700 From: Norm Matloff To: Norm Matloff Subject: Yale and Harvard student newspapers on H-1B To: H-1B/L-1/offshoring e-newsletter Interesting that articles on H-1B in the Yale and Harvard student newspapers should come out contemporaneously. Could be that the two reporters know each other, or it could be that the industry lobbyists talked to either the editors or to the foreign student offices at the two schools, suggesting that there is a good story here. By the way, CompeteAmerica, the industry lobbying group, is displaying the Yale article on their Web page, http://www.competeamerica.org/news/ media_coverage/2006_10/20061005_foreign_alums.html A few comments: # "It was obviously surprising that I didn't get a visa, because I'm from # Canada," he said. "I think my situation points out the fact that American # immigration policy has become so tight that it doesn't matter what country # you're from, what school you graduate from or where you are going to work." Odd that he thinks Canadians should get priority. # "As long as the boom stayed, there was political support for doing that # because it was a win-win situation for everybody," said Martin, who is the # director of Georgetown's Institute for the Study of International Migration. I'm a little surprised to see Susan Martin make a statement calling H-1B "win-win for everybody." # But Konieczny said he thinks arguments such as Matloff's are hypocritical # because they support talented individuals entering the country to increase # American competitiveness but fear that competition with foreign workers will # keep Americans out of jobs. Konieczny said immigration and competition have # been important factors in the economic and social development of the United # States. I don't get it. Where's the hypocrisy or inconsistency? "The best and the brightest" bring ideas to the U.S. that we don't have enough of. The ordinary foreign workers don't. So, the two situations are fundamentally different. Moreover, the law itself makes the same distinction I do. As an alternative to H-1B, there is the O-1 work visa, which is specifically for those of outstanding talents. And for green cards, there are both ordinary employer-sponsored green card categories and special categories for "the best and the brightest." # Yale-Loehr said that as long as current laws to prevent wage depression and # worker discrimination are enforced by the government, the H-1B program will # not have a detrimental impact on the American economy. # "Obviously anyone can violate the law," he said. "The important thing is # that the Labor Department … has enough resources to do its job." Well, maybe Yale-Loehr is the hypocritical one. First of all, Yale-Loehr, in his book, Balancing Interests: Rethinking U.S. Selection of Skilled Immigrants, p.67, reports on his study of wages paid to foreign nationals in various professions. In data from the labor certification applications in the process of sponsoring the foreign workers for green cards (the same process used to check wages of H-1Bs), the foreign applicants in Computer Programmer positions in New Jersey were being offered salaries which were on average 21% below the mean for that profession, with an 11% figure in Texas. In the Computer Systems Analysts and Scientists category, gaps of 30% and 21% were found in New Jersey and New York, respectively. This is in stark contrast with Yale-Loehr's testimony to the U.S. Senate (http://www.twmlaw.com/new/htestimony.htm), in which he stridently contends that H-1Bs are not paid less than Americans. He goes on at length on this issue, with it comprising close to half of his entire testimony. That sounds pretty hypocritical to me. Second, Yale-Loehr certainly knows that "current laws to prevent... worker discrimination" (see above) do not exist for H-1B. Other than a minuscule exceptional category, the law does NOT require employers to hire an American if he/she is qualified for the job. Indeed, Yale-Loehr's organization, the American Immigration Lawyers Association--of which, by the way, he is far more than a mere "member" as described in the article, as you can see from his testimony on behalf of AILA--has fought tooth and nail against any bill which would impose such a requirement on employers. So, that's pretty hypocritical too. Finally, concerning his comment that "Anyone can break the law," my point (quoted in the article) is that the law allows one to underpay H-1Bs in full compliance with the law, due to the loopholes. And since the AILA are the ones who put those loopholes in the law in the first place, that is the ultimate hypocrisy Norm http://www.yaledailynews.com/Article.aspx?ArticleID=33577 Thursday, October 05, 2006 Foreign alums cope with visa troubles By Cari Tuna Staff Reporter After studying at Yale for four years, Semih Salihoglu '06 was ready to continue his life in the United States as a software engineer for Google in New York City. A Turkish citizen, Salihoglu was a computer science and economics double major and holder of the highest grade-point average in Silliman College after seven terms - an ideal candidate for many jobs in the United States. But his plans were disrupted when he was denied the necessary visa for employment for foreign workers with the equivalent of a bachelor's degree or higher, the H-1B. "It was shocking because no one thought there was any risk in not getting an H-1B visa," Salihoglu said. Salihoglu is one of many foreign graduating seniors who were unable to obtain H-1B visas this year due to increasing demand. Months later, they continue to deal with the ramifications of the visa shortage, and pending immigration legislation may or may not raise the visa cap for the coming fiscal year. The congressionally mandated quota was reached more than two months earlier in 2006 than it was last year, and before many students received their diplomas, said Ann Kuhlman, director of the Office of International Students and Scholars at Yale. Because the H-1B application requires proof of at least a bachelor's degree, graduating seniors were at a significant disadvantage to other visa applicants, who were able to apply from April 1, she said. "The difficulty is you never quite know when you are going to hit the limitation," Kuhlman said. "I'm sure it was certainly a disappointment to find out that you just missed it." This year the cap was reached on May 26, only four days after Yale's Commencement. The same limit was reached on Aug. 10 and Oct. 1 in 2005 and 2004, respectively, according to U.S. Citizenship and Immigration Services press releases. At least 11 of the 113 international students in the Class of 2006 were affected by the H-1B shortage, according to an e-mail survey conducted by OISS Assistant Director Monica Weeks. But that figure is probably an underestimate, as some affected graduates may not have received the e-mail or chosen to respond, she said. Weeks said one Yale alumnus estimated that at least 20 graduates had visa problems this year. Complicated solutions For the most part, companies were willing to work with students to find solutions to fill the 16 months between graduation and Oct. 1, 2007, when the next round of H-1B visas will take affect. Some graduates will remain in the United States temporarily by using "optional practical training" - up to 12 months of employment authorization provided by the international student visa. They may take time off before starting work or transfer abroad between the end of their OPT and next October. Other graduates, like Matthew Konieczny '06, were permanently relocated to offices overseas. Konieczny, who is from Canada, was hired by Lehman Brothers in New York as an investment banking analyst. The company did not inform Konieczny until July that he had missed the visa application cutoff and would have to move abroad to keep his job. "It was obviously surprising that I didn't get a visa, because I'm from Canada," he said. "I think my situation points out the fact that American immigration policy has become so tight that it doesn't matter what country you're from, what school you graduate from or where you are going to work." Like many international students who plan to pursue careers in finance, consulting or technology-related fields, both Salihoglu and Konieczny had used a portion of their OPT time on summer internships in the United States, leaving them less flexibility after graduation. The only way for foreign graduates without H-1B status to start work is through OPT, said Salihoglu, who will return to the United States in two weeks to begin his job at Google and relocate to another Google office when his OPT expires. "If you are lucky [and] you are working for a big company, they can send you to London or to Europe," Salihoglu said. "Or they can send you on vacation for three or four months, depending on how much [OPT] you have." But a number of Ivy League alumni said they had heard of companies retracting job offers in the wake of the visa shortage. Salihoglu said a company might not be able to retain an international employee who did not get a visa, regardless of his or her potential. "There are companies that don't have offices outside the U.S., and if you tell them you can't work for them for five months, they might have some tendency to cancel your contract," he said. Yale graduates were not the only ones affected by the shortage. While at least one Yale student filed his paperwork in time, at some schools - such as Harvard and Dartmouth - finals and graduation dates were scheduled as late as June, well past the application deadline. Harvard alumna Yue Zhou, an economics major from China, said she was alarmed to learn that she had not received a visa to work for Citigroup in the United States. Zhou, who now works in London, said she did not have much influence over the visa application process. "The corporate immigration lawyers took care of the process, and I only followed their instructions to provide them with necessary documents," Zhou said in an e-mail. "I was obviously unable to submit all the materials before I graduated from Harvard, since the diploma is a required document." Harvard alumnus Victor Bicalho, who was also unable to file his application materials in time, said he is not aware of any Harvard students who secured a visa. Harvard's commencement took place on June 8, and final exams ended on May 26 - the day the visa limit was reached. At least six 2006 Harvard graduates could not obtain visas. Because students apply for the visa through the companies that hire them, international student offices are unable to track how many seek to work in the United States, said Robin Catmur, associate director of the Dartmouth International Office. At least one Yale alumnus, Australian citizen Jie Zhou '06, was able to avoid the consequences of the H-1B shortage. On the advice of his employer, Zhou applied for the E-3 visa - an equivalent of the H-1B exclusively available to Australian citizens. Because 10,500 E-3 visas are available each year, he was in a much better position than many of his international counterparts. "I think my experience was made relatively painless because [of] the special Australian visa category [and] excellent support from the immigration lawyers hired by my employer," he said in an e-mail. A brief history of the H-1B The H-1B is given to nonimmigrant foreign workers who are temporarily employed in a "specialty occupation," such as education, law, business or medicine, or as a highly skilled fashion model. This visa is the main route by which non-American graduate and undergraduate students qualify for work in the United States, Georgetown international migration professor Susan Martin said. A graduate's job must be related to the his or her field of study, said Stephen Yale-Loehr, an American Immigration Lawyers Association member and adjunct professor of law at Cornell, "You have to be working in a job that requires your degree," Yale-Loehr said. "You can't get a history degree from Yale and flip hamburgers with an H-1B visa." Current legislation limits the annual number of H-1B visas to 65,000, but in the past the cap was raised due to an increased demand in the technology job market. The H-1B visa was established under the "Immigration Reform and Control Act of 1990," which expanded opportunities for employment-based immigration into the United States. The annual visa quota, which was initially set at 65,000, was exceeded for several years after the information technology boom, Martin said. The cap was raised to 115,000 for the fiscal years 1999 and 2000 and eventually to 195,000 for 2001 to 2003. "As long as the boom stayed, there was political support for doing that because it was a win-win situation for everybody," said Martin, who is the director of Georgetown's Institute for the Study of International Migration. The visa cap returned to 65,000 in October 2003, but since then an additional 20,000 visas have been available annually to foreign workers with a master's degree or higher. Of the 65,000 H-1B visas, 6,800 are reserved for immigrants from Chile and Singapore under the United States' free trade agreements with those countries, but 6,000 of those from the last fiscal year were unused and added to the 2006 visa pool. Implications The fact that the visa quota was filled so early this year may carry significant implications for current international students. If the trend continues and the H-1B quota is not increased, they may have no chance of securing an employment visa. This may make companies more reluctant to recruit international students, Kuhlman said. "I suspect that it probably gives some employers pause because they know the difficulties they might face in hiring international students," she said. Consequently, international students may have less flexibility after they graduate and may have to explore options other than employment in the United States, Kuhlman said. "I think it may require these students to have a backup plan - either working outside the U.S. or perhaps considering graduate school or a professional degree a little earlier than they might have otherwise," she said. Yale Law School professor Peter Schuck, an immigration specialist, said he thinks the visa limit has been a problem for some time. He said highly educated and qualified H-1B holders are "extremely attractive immigrants," and both those who eventually become permanent residents and those who return to their home countries can contribute to American competitiveness. "The advantages to American business and American consumers from a robust H-1B program are definitely great," Schuck said. "There is a very fierce competition going on for people of these skills throughout the world, and we should not disable ourselves from engaging in this competition and winning it." Politics and immigration There are a number of parties involved in the debate, lobbying either for or against expansion of the H-1B program. The two sides disagree on how the H-1B visa program affects the U.S. economy and domestic workers. While the H-1B visa is always a contentious issue in Congress, it may garner special attention this year since immigration is an important issue in pre-election debate, Kuhlman said. Yale President Richard Levin said he has been concerned with the H-1B issue for a number of years, especially in regard to recipients of advanced degrees. "It was one of my top issues when I was in Washington," Levin said, referring to a September visit to Capitol Hill. "I've been working actively on this front for some years." Levin said he thinks his view that the H-1B quota should be expanded is widely shared among university presidents. He also said there is support in Washington for the expansion of the H-1B program, but that change will not come without effort. "It will take work, and the immigration bill that is currently unresolved in Congress has many other controversial elements," Levin said. "But I think if we continue to push for this, then we make some progress." University administrators, the American Immigration Lawyers Association, and technology employers are the three main groups lobbying in favor of more H-1Bs, while national workers' groups and immigration reduction groups are the primary opponents of the program, said University of California, Davis computer science professor Norman Matloff. "The politics behind it largely concern efforts by groups of workers - particularly computer workers - who fear competition from the visa holders," Schuck said. Matloff, an outspoken critic of the H-1B program, said companies have used the visas to underpay foreign workers and discriminate against older citizens. The current law stipulates that H-1B holders must be paid the "prevailing wage" and cannot be hired to break up a strike or replace U.S. workers, but Matloff said there are enough loopholes to make some wage depression and discrimination against U.S. workers perfectly legal. "Virtually all employers, not just the small ones, violate the spirit … of the law in these ways," Matloff said in an e-mail. "Congress is highly beholden to the industry's campaign donations, and writes legislation accordingly." Matloff said he believes the United States should be importing the "best and the brightest," which is not necessarily implied by an Ivy League or graduate degree or employment in a high-paying job. But Konieczny said he thinks arguments such as Matloff's are hypocritical because they support talented individuals entering the country to increase American competitiveness but fear that competition with foreign workers will keep Americans out of jobs. Konieczny said immigration and competition have been important factors in the economic and social development of the United States. "The United States is a country built off of able foreigners coming in and contributing," Konieczny said. Yale-Loehr said that as long as current laws to prevent wage depression and worker discrimination are enforced by the government, the H-1B program will not have a detrimental impact on the American economy. "Obviously anyone can violate the law," he said. "The important thing is that the Labor Department … has enough resources to do its job." Economic evidence currently points to a need for more H-1B workers, and the visa quota should be set with regard to that need, Yale-Loehr said. "We believe that rather than having an artificial cap set by congress, the marketplace should determine the number of H-1B visas handed out each year," he said. Konieczny said he thinks a major problem with the H-1B application process is the quota approach, which is based on who applies first rather than who is most qualified. This arbitrary cutoff eliminates competition because it does not determine which applicants are the best to allow into the country. "It's in the government's interest to invest in a screening process able to screen more than 60,000 applications," he said. "You eliminate competition and you eliminate the system that is aiming to diversify and enhance the America population." Future of the H-1B program The H-1B visa issue might be slow to change because it is tied up in the larger debate over immigration reform, Yale-Loehr said. "A lot of immigration issues are not being solved until the larger issues are solved," he said. "It's like anything in Congress - it takes a long time to pass a major bill that seems controversial." In the past year, both the House and the Senate passed immigration reform bills, which are still pending in Congress. But the two bodies approached the issue of immigration reform in very different ways. The House bill - passed last December - focused on the strengthening of border control, while the Senate bill - passed this past May - took a more comprehensive approach to immigration reform. If enacted, the Senate bill would increase the number of H-1B visas to 115,000 for one year and use "a market-based calculation" to determine the cap for each subsequent year. The bill would also increase the quota by 20 percent if the previous year's quota is reached and would exempt aliens with advanced degrees in science, technology, engineering or math from the H-1B limit. The House bill, the Senate bill, or some compromise may be approved during Congress' lame-duck session after the general elections in November, Yale-Loehr said. Schuck said he thinks the immigration debate is often more political than practical, and divisions do not necessarily fall along party lines. "Immigration has strange political alliances," he said. "I would guess that there are a number of Democrats as well as some restrictionist Republicans who have supported the restriction of these visas." The Bush administration has supported comprehensive immigration reform and increasing avenues for foreign workers to gain employment legally, according to CNN and the Washington Post, respectively. Alumni differed on how much the H-1B shortage affected their lives. Some students, like Konieczny, said not receiving H-1B status was highly disruptive to their lives and future plans. But others said that while changing their plans was inconvenient, not getting a visa this year will not affect them greatly in the long-term. "I am doing the same kind of job, just in a different office," Yue Zhou said. Current international students must be aware of the H-1B visa quota and file their forms as soon as possible, alumni said. "Apply early, as in April 1 early," Jarek Langer '06 said in an e-mail. "Do not wait until you get your diploma. It will be too late." Bicalho said students should be proactive and involved in the application process. "Take ownership over the process," Bicalho said. "Talk to the school's international office early so they can start working with you. … As soon as you have an offer, know who are the lawyers your firm will use and contact them so that you can work together." http://www.thecrimson.com/article.aspx?ref=514726 Diploma in Hand, But Visa in Limbo Published On Thursday, October 05, 2006 3:46 AM By CLIFFORD M MARKS Seniors are waiting to hear if they’ve been hired for lucrative jobs on Wall Street and in Silicon Valley, but international students are waiting to hear if they’ll even be allowed to hold jobs in the country. Harvard’s late graduation date—and an unusually high volume of visa applications—could put some seniors’ and recent graduates’ jobs in jeopardy. And with immigration reform efforts stalled on Capitol Hill, relief may be a long time coming. Some international students in the Class of 2006 were unable to apply for the H-1B visas required to seek employment in the United States because they did not receive the necessary proof of graduation until after the visa quota was filled. Previously, the annual quota had not filled up until long after Harvard’s June Commencement ceremonies—students in the class of 2005 faced a deadline of Aug. 10. But last year, U.S. Citizen and Immigration Services (USCIS), the federal agency that adjudicates visa petitions, announced that the quota was filled on May 26—the same day finals period ended. That left some graduating seniors without long-term employment permits. The Woodbridge Society of International Students at Harvard says it will press administrators to address the matter. “This will have far-reaching effects on the international student body at Harvard,” according to Woodbridge spokeswoman Ritambhara Kumar ’09. Harvard International Office Director Sharon Ladd said administrators are trying to make sure students will not face the same problem this year. “What we’re working towards is not being caught out again this year, because it’s fair to say most people were when the cap was met last year,” Ladd said. Federal immigration officials can issue H1-B visas to foreigners “who will be employed temporarily in a specialty occupation,” according to the USCIS website. An H1-B holder can remain in the country for six years. But the number of such visas issued annually is currently capped at 65,000. Harvard students who fail to obtain an H-1B visa can still work in the U.S. for up to 12 months under a program called Optional Practical Training (OPT). But students staying in the U.S. under that program can only seek jobs connected to their field of study. That’s not the only drawback of OPT. While students with a year-long extension could conceivably re-apply for H-1B status, they’d still have to stop working for several months. H-1B visas take effect at the beginning of the federal fiscal year, Oct. 1, so Class of ’06 students who gained OPT status immediately after graduation would be left without a visa from June 2007 until October. Even worse for foreign students, summer jobs held during college count toward the 12-month OPT allowance. For example, Elisa M. Segovia ’06 of El Salvador worked during the summer before her senior year—cutting down the number of months she could work under the OPT program after graduation. “I called my company and told them my situation, and my company was pretty great and said that when my OPT expires, we’ll send you to El Salvador to work for five or six months until I can apply for my H-1B,” said Segovia. A bill sponsored by Senator John Cornyn, R-Texas, would provide aid to students who find themselves in Segovia’s position. The bill would increase the annual number of H-1B visas to 115,000 and would double the length of OPT eligibility to 24 months. But according to the Library of Congress, no major action has been taken on this measure—or its companion House bill—since June. The current 65,000-visa cap on H-1Bs is reached at a different point each year, so Class of ’07 students have no way of knowing whether they’ll have the required documents in time to apply. Siddhartha Sinha ’07 of Calcutta, India is concerned about applying in time for the H-1B, but hasn’t let it affect his job search. “I’m assuming I will get the visa, but if I don’t, the thinking is that I’ll get a job in an international office,” said Sinha, who is looking for a job in finance. Segovia, meanwhile, is working for Orion Consultants in New York City, but her long-term status is uncertain. “Right now,” she said, “I have no idea what’s going to happen and I don’t think anybody else does.”