Is “Merit-Based” Immigration Code for Something Else?

U.S. Citizenship and Immigration Services (USCIS) hosted a DHS stakeholders call entitled “H-1B Cap and Filing Tips Stakeholder Engagementthat I participated in on March 6. It made me think about “merit-based” immigration and how we have not seen movement of any real proposals by the Trump administration – or his supporters in Congress.  I wondered what they have in mind for merit-based immigration and would it actually work for my clients, U.S. employers, many of whom are competing for top global talent.  Merit-based is not a new concept, as we have toiled with it for the last decade as other countries enacted new rules to support this idea.  As I see merit-based immigration, it serves a clear economic purpose — attracting and welcoming people with a wide range of skills, tailored to our country’s economic needs.  However, I am not sure the current administration sees it the same way.

In the past year, the administration has taken numerous actions in opposite of supporting merit-based immigration. Much of this I outlined in my 2017 recap.  The administration has used the “Buy American and Hire American” executive order to justify numerous new regulatory or policy actions. For example, USCIS adjudicators will no longer “defer to prior determinations,” approvals or findings of facts when renewing an H-1B or other high-skilled visa. This includes the O-1 visa for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics, or others with a demonstrated record of extraordinary achievement.  In addition, USCIS is issuing more Request for Evidence and Denials across the board. It is also proposing to revise the definition of specialty occupation to make it more difficult to obtain H-1B visas. As it is now, the H-1B visa category is typically the only practical way for a U.S. company to hire a high-skilled, merit-based foreign national to work in the U.S., and this administration seems to be stripping away at one of the only viable options they have.

Moving beyond the H-1B visa, the administration also announced it would rescind the rule for International Entrepreneurs designed to increase foreign entrepreneurship in the U.S.  Recently, the National Venture Capital Association, along with 31 other business organizations, wrote a letter to the President stating that:

The International Entrepreneur Rule (IER) allows world-class immigrant entrepreneurs to build new companies in the United States. During your State of the Union speech, you stressed the need for a ‘merit-based immigration system — one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.’ IER applicants are emphatically all of those things and as such deserve your full support.

The organizations went on to state that in 2016, China was home to six of the 10 largest venture capital investments in the world, which 5 years earlier was in the U.S. If we continue to push entrepreneurs overseas, our share of global investment, including a variety of jobs, will follow the money.

In addition to stifling investment into new companies with foreign-born founders, the administration seems poised to draft new rules to make it more difficult for international students attending U.S. universities to work after graduation for 12 months on Optional Practical Training (OPT) or an additional 24 months for individuals in a STEM (science, technology, engineering and math) field. As explained here, this could cut into competition in the science and engineering innovation in the U.S.  Again, if these foreign students are educated here, and then forced to take positions with our overseas competitors, we lose a whole lot of economic benefits.

The administration has also announced it would rescind the rule that allows many spouses of H-1B visa holders to work in the U.S. The 2015 regulation helped retain skilled workers and provided greater dignity to spouses, many of whom are well-educated women born in India and China. It appears the proposed rule is due to be published in June 2018.

Then, there were the various versions of the administration’s travel bans, primarily directed against people from Muslim countries. These have prevented individuals from the targeted nations to work and study in the U.S. or even attend prestigious world renown conferences here, as one of my clients agonized over.

Overall, merit-based immigration seems to be code for “limit legal” employment-based immigration by making it increasingly harder for U.S. companies to retain foreign talent in order to compete in the global market place.

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