The U.S. Department of Labor's Bureau of Labor Statistics
predicts that professional and related occupations will provide
more jobs -- 5 million -- than any other occupational
group between 2006 and 2016, with computer, math, engineering and
life science occupations comprising the majority of these
The National Science Board, the governing body of the National
Science Foundation (www.nsf.gov/nsb/) also concluded
that, as a result of retirees in science and engineering over the
next two decades, a decrease in graduates from these programs
and/or immigrants coming to perform services in these critical
areas will worsen the anticipated skilled worker shortage.
This fact - in combination with the National Science
Foundation's finding that more than 50 percent of masters' degrees
and Ph.D.s issued by U.S. colleges and universities are granted to
foreign-born persons - places immigration squarely in the mix
of factors contributing to the continued success and
competitiveness of our economy. At this critical moment, then, the
question is: Can the American workforce keep up with corporate
demand for science, technology, engineering and mathematics (STEM)
professionals without a more rational approach to our skilled
worker visa programs?
A Harvard Business School study (December 2008) found that
immigrants comprised nearly half of all scientists and engineers in
the United States with a doctorate and accounted for 67 percent of
the increase in the U.S. science and engineering workforce between
1995 and 2006. As our nation grapples with comprehensive
immigration reform, the core debate, as always, centers on border
security and a solution for the current 12 to 15 million
undocumented persons living in America.
Moreover, as a result of a lagging economy, the public debate is
often sidetracked by unfounded fears of foreign workers taking U.S.
jobs, fears that ignore the reality of job creation and innovation
that go hand in hand with an influx of highly skilled
Indeed, it is at this most critical juncture in our economic
recovery that the United States should be expanding options for
highly skilled foreign professionals to come to America to study,
research, innovate and work. Implementing immigration reform to
expand the number of skilled foreign professionals arriving at our
door is essential to the continued success of American companies in
the global economy.
The H-1B visa (specialty occupation) category created by The
Immigration Act of 1990 (Public Law 101-649), since amended by the
American Competitiveness and Workforce Improvement Act of 1998
(Public Law 105-277) and the American Competitiveness in the
Twenty-First Century Act of 2000 (Public Law 106-313) ("AC 21"),
has always been subject to a quota limit.
During the boom years in the late 1990s, the quota, known as the
H-1B cap, was increased to keep up with economic demand for highly
skilled workers; however, this temporary increase has since
reverted back to the original 65,000 limit. Congress has exhibited
little political will to create a permanent bump in this
The annual H-1B cap has been met every year since 2000, preventing
thousands of foreign graduates and professionals from entering the
U.S. workforce. Although Congress has refused corporate America's
pleas for an increase in the H-1B hard cap and has ignored economic
data showing that foreign temporary professionals actually create
more jobs for U.S. workers than they take away, AC21 created an
additional 20,000 H-1B visas for foreign nationals who have earned
a master's degree or higher from a U.S. institution.
In addition, this legislation provided quota exemptions for
institutions of higher education and certain affiliated
institutions, including teaching hospitals, nonprofit research and
government research institutions.
With immigration reform languishing in Congress, some relief from
quota limitations has come in the form of regulatory changes to the
F-1 student visa category. Most students, with the exception of
English-language and some non-degree programs, benefit from one
year of optional practical training (work authorization) after
graduation or program completion.
The 2008 Interim Final Rule (IFR 73 FR 18944) F-1
regulatory changes provided for granting an additional 17 months of
work authorization to students who have completed degrees in the
STEM field as long as they are employed by a company enrolled in
the government's E-Verify System (employment verification system
completed in conjunction with a new hire I-9).
There is a cost for many companies when making the determination
to enter this program to obtain the benefit of this STEM extension.
Unfortunately, although E-Verify is open to all companies, for many
corporations, the unfettered access to certain employment records
authorized by a signed memorandum of understanding required to
enroll in this program is a deciding factor in whether or not to
enter this program and obtain the employee benefit of the STEM
Under the current system, the government has the ability to expand
the number of qualifying STEM fields without any additional
regulation. The most recent update included many additional fields,
which is a critical step forward, but there are still a variety of
majors that should be considered for addition.2
Ultimately, expansion of this program is highly beneficial to the
economic interests of the United States, as it provides options for
extension of student work authorization. Further, the additional
time allotted in the F-1 student category staggers the influx of
H-1B applications submitted in any one year, providing some relief
from H-1B quota usage. One benefit of this approach is that it does
not require any additional legislative action.
The creation of an exemption for students who graduate from U.S.
institutions with STEM field degrees at any level, or for students
who graduate with a master's degree or higher in one of the STEM
fields, may also provide quota relief. The above examples would
require Congress to act, however, and the likelihood of
congressional action is bleak.
There are several other viable options for quota relief that would
not require congressional action and could be instituted by the
United States Citizenship and Immigration Service (CIS)
First, CIS could ban quota-exempt employers from using cap
numbers. Quota exemption is an elected status. As a result, there
are problematic instances where a beneficiary may request a quota
number to ensure future employment and status options, or where
human error results in the request of a quota number when not
necessary, or fear of filing, paying a fee and government
misinterpretation of the relationship qualification for quota
One critical area of potential quota relief that is particularly
crucial to Massachusetts' research and health care industry is
CIS's definition of "affiliated" or "related to" an institution of
higher education. Over the last year, the California Service Center
(CSC), the sole service center with jurisdiction over quota-exempt
institution filings, has demonstrated some confusion over which
employers qualify for cap exemption by requesting proof of board
control or specific agreements more in line with corporate
documents. In addition, this exemption has never allowed for "gray
area employers" to obtain the cap exemptions.
In March 2011, CIS issued interim guidance clarifying that any
institution that received cap exemption since 2006 would continue
to receive cap exemption for the moment. Since that time, CIS has
been reviewing its position on the definitions of the term
"affiliated." There has been much advocacy by hospitals, nonprofit
agencies, education and research institutions for the use of a
broad, realistic definition of "affiliated" or "related."
CIS policy guidance is in the works. Many have argued that usage
of any affiliation recognized by any other body of law (for
example, the EPA, Medicare) should count for cap exemption. This
change would allow many private hospitals to be eligible for cap
In addition, if CIS maintains its traditional exemption for
individuals working for a for-profit entity at an exempt
institution, additional numbers can be saved here as well.
With baby boomer retirement and increased world competition, the
demand for highly skilled workers is on the rise and the United
States is increasingly challenged to find better ways to attract
and retain the best and the brightest. The H-1B quota exemptions
and other mechanisms as described above should be utilized to
provide temporary relief of arbitrary quota limits until Congress
gets it house in order and acts.
However, until there is some action either by legislation,
regulation or official guidance, the question remains: Can America
keep up with the growing demand for science, technology,
engineering and math-related professionals required in the next
decade? The answer is yes, but not alone and not without the help
of the next generation of immigrant professionals.
Elizabeth Goss is a partner in the law firm Tocci, Goss
& Lee, where she specializes in the representation of
physicians, researchers, trainees and students in the higher
education and health care fields, securing their temporary and
1In 2008, Bill Gates testified before Congress that
for every H-1B position requested, Microsoft added another four
employees to support that worker. In a March 2008 report, the
National Foundation for American policy found that for every
sponsored H-1B worker, an additional 7.5 workers were hired.