U.S. Immigration Law Both Helps And Hinders Foreign Researchers

New policies may make it more difficult for them to work temporarily, but may make it easier for them to get permanent visas Universities, industries, and government agencies that employ foreign scientists see the 1990 Immigration Act, which revamps the visa application process for skilled workers and the quotas of temporary and permanent visas issued, as a mixed blessing. The 110-page law, signed by President Bush last November, triples the number of permanent visas for skilled workers to 140,000 each year and makes the application process easier and quicker for some of these aliens. But it will significantly lengthen the application process for temporary visas, limit their number to 65,000 a year, and increase the cost of bringing these immigrants to the United States. Some worry that this could hurt certain industry and university operations that have long relied on foreign scientists on temporary visas to fill vital positions. Other critics also fear that the new law, scheduled to take effect in October, could create a glut of foreign scientist immigrants who will be allowed to come to the U.S. on permanent visas and jeopardize opportunities for equally qualified Americans. "There haven't been so many changes in immigration law for 35 years," says H. Ronald Klasko, who, as a former president of the American Immigration Lawyers Association in Washington, D.C., helped draft this legislation. Klasko is also a Philadelphia-based immigration attorney with Dechert, Price & Rhoads, a law firm that specializes in bringing foreign scientists to the U.S. for American companies. He says Congress wrote many of the new law's provisions with researchers and scientists in mind. Klasko and other immigration attorneys, as well as foreign student and faculty advisers and recruiters, agree that the new law should facilitate bringing foreign national scientists to the U.S. on a permanent basis. The law will benefit industry and academia overall, they say. Historically, American science has relied on foreigners, says Chris Giffen, technical recruiter for Amgen Inc., a biotechnology company in Thousand Oaks, Calif. As examples, Giffen cites the Manhattan Project and the early stages of the space program. "We get the best qualified people from the pool out there, and there is a significant number of foreign nationals qualified for these jobs," Giffen says. But immigration lawyers do share some concern about the temporary visas changes. "Since companies and universities sponsor many more visas for foreign scientists hired on a temporary basis than they do for permanent visas, they have gotten used to these people filling vital slots in their faculty or work force," says Carl Shusterman, an immigration attorney in the Los Angeles office of Barst, Mukamal & Shusterman. These scientists serve as researchers and faculty members. Attorneys, advisers, and recruiters say they hope that when the Immigration and Naturalization Service (INS), the Labor Department, and the State Department write the regulations that implement the law, the questions raised by industry and academia regarding the temporary visas, as well as other problems they have with the legislation, will be addressed. Built-In Delays Academia and industry's main concern about the law is that it dramatically alters their ability to bring scientists and other professionals to the U.S. on the temporary work visa called the H1-B, by drawing out and complicating the application process. "Today if a company calls me and says, `We want to get a scientist here as soon as possible,' I will start the temporary visa process for a professional worker, the so-called H1-B visa," says immigration attorney Klasko. "The procedure generally takes a month. You simply file an application with the INS and prove the professional qualifications of the individual and show that no permanent commitment has been made to the person. A permanent visa has a year-and-a-half waiting list.'' Under the new law, there is a 65,000 limit to the number of temporary visas issued by the INS. Under current law, this number is unlimited. Also, the new act requires that an application for a temporary visa must first be submitted to the Labor Department before it can be filed with the INS. In addition, the employer's American workers have to be paid the same wage offered to the prospective foreign worker. Under current law, only permanent visas need such approval by the department. This is done to ensure that the employer is offering the foreign scientist a wage comparable to the prevailing wage in the same company or university, or in the field at large. Besides making the wage statistics available to the Labor Department, all wage information for temporary visas now must also be made available to any interested party, such as a union. This party can file a complaint and interrupt the process to schedule a hearing to determine if the employer intended to undercompensate the foreign employee in relation to other workers in the company or similar workers in industry or academia. Penalties levied could include paying back wages to any of the employer's American workers discovered during the hearing process to also have been underpaid, and prevention from filing for foreign nationals in the future. "The law was written this way because some labor groups were concerned that industry was keeping out American workers by taking advantage of foreign workers by paying them lower salaries," says Klasko. Groups such as the National Association of Foreign Student Advisors (NAFSA) in Washington, D.C., have suggested to the Labor Department ways to shorten the delay caused by this new application process. They recommend that employers be given blanket approval for a year or two for a class of temporary research associates or teaching faculty instead of for individuals. They also say that the process should be "challenge driven." Says Jerry Wilcox, a foreign student adviser at Cornell University in Ithaca, N.Y., who helped draft NAFSA's comments to the federal agencies: "Such a challenge-driven process would go much smoother than if the Labor Department looked at [each of] the 130 of our H1-B applications that we apply for during the academic year. The application would be deemed approved unless there was a challenge." The new process baffles even the Labor Department. In the March 20 issue of the Federal Register, the agency asked for help from interested parties in how to "expedite prevailing wage determination," says Grace Kilbane, cochair-woman of the Task Force on the Immigration Act of 1990 for the department. Until the issue is resolved, Klasko is recommending that his clients get as many H1-B visa applications under way as possible before October 1. Another concern for universities and industry regarding the temporary work visa is a provision in the 1990 law that requires employers to pay transportation home for aliens if their work has been terminated before the end of the visa period. "It isn't in the law as to what happens if there is termination for cause," says Klasko. Academic officials are concerned about being responsible for airfare if grants run out. "What we are going to have to do is bring people in on temporary visas for shorter periods of time, and that will just increase the amount of paperwork and therefore increase the time it takes to get these people in to work," says Wilcox. One provision of the new legislation, however, will help thousands of foreigners in the U.S. caught in the bureaucratic net of holding a temporary visa while waiting to obtain the coveted green card--permanent residency. One of them, a chemist from the Middle East now working at a university in the U.S., says it will allow him to travel internationally more easily for professional purposes as well as visit his family back home. The new law does not require the alien with dual status to retain a residency in his or her native country. "Although I am an academic scientist who gets asked to talk at international meetings and give seminars all over the world, my visa status with the American immigration authorities makes it next to impossible for me to travel and meet my professional responsibilities," says the scientist, who requested anonymity. He is being sponsored by a major American university to become a permanent U.S. resident with an offer to join the faculty in a tenure-track position. "I have heard horror stories of people in similar visa classifications as myself not visiting a sick relative in their home country because if they were to do so, they wouldn't be able to return to the States for another two years." Shrinking The Waiting List The new law, in general, benefits the highly skilled foreigner with at least a bachelor's degree who comes to the U.S. on a permanent basis. "The number of skilled people who can get green cards has tripled, and that should greatly decrease the waiting list and backlogs that have created problems for business and academia who want to hire scientists on a permanent basis," says Valerie Woolston, foreign student adviser for the University of Maryland at College Park. The law creates a permanent immigrant category for 40,000 people called priority workers. Included in this class is the extraordinary individual whose work will prospectively benefit the U.S. and whose achievements are of international renown, according to the law. "These are the Nobel Prize-winner, walking-on-water types," says Klasko. The other priority-worker subcategory included in this 40,000 total is the outstanding researcher or professor. To qualify, a person must be recognized internationally and have at least three years' teaching or research experience in an academic area. The regulations should clarify the criteria needed to meet these standards. The priority-worker category is advantageous to the employer because the company or university is exempt from the time-consuming Labor Department certification process that all the other permanent visa applicants must go through. "Labor certification is a determination made by the agency that no qualified U.S. workers are ready, willing, and able to fill a job and that the employment of an immigrant will not adversely affect the wages and working conditions of U.S. workers," says Shusterman. Companies and universities expect they will be able to get a significant number of scientists into the U.S. under this category. The law also creates a second category of 40,000 immigrants who hold advanced degrees. University officials say they hope that when the new regulations are written, the Labor Department will amend the way it gives labor certification to these potential applicants for permanent status. Under current law, the department allows a university to hire a foreign faculty member over a pool of U.S. applicants if the alien is more qualified than his or her competitors. But in the case of a research job, a U.S. worker will be chosen over the foreigner if he or she is minimally qualified for the position. "If both applicants, say, meet the requirements in a classified ad, even if the foreigner is more qualified, the U.S. worker wins out," says Klasko. NAFSA is hoping that the "more qualified" standard could be applied to foreigners going for research positions, since it gives the employer the best possible candidate for the job. The organization writes in its position paper to the Labor Department: "Research conducted by academic institutions plays an increasingly vital role in the quality of American life and many universities have become centers for research activity in medicine, science, and technology. The quality of the work is linked to the quality of the research personnel. Academic institutions need to recruit the best talent, whether American or foreign, in order to produce the best product which could benefit millions." In addition to the 40,000 priority workers and the 40,000 aliens holding an advanced degree, the new law allows 40,000 immigrants with bachelor's degrees or equivalents to enter. Yet another category includes up to 10,000 entrepreneurs. For foreign scientist-entrepreneurs to qualify, a minimum of $1 million--this amount is subject to change under regulations issued by the Attorney General of the Justice Department, the agency that regulates the INS--must be invested in a new commercial enterprise that employs at least 10 U.S. workers. The law also creates a special, three-year pilot program that allows the secretary of labor to designate up to 10 shortage/surplus occupations. Aliens within the shortage designation may obtain permanent residency without undergoing the labor certification process. Currently, the department is grappling with the question of what methodology to use to determine a short- age. While industry and university spokespeople say that the new law has more positive than negative impact, there are some who disagree. "Although during the debate in Congress, proponents for the law said this country has a serious labor shortage for professions like scientists, we were also hearing that [scientists] were underemployed or unemployed and were being passed over by corporations and institutions because the aliens were brought in cheaper," says Jim Dorcy, director of government relations for the Federation for American Immigration Reform, a lobbying group in Washington, D.C. Dorcy adds that the Department of Labor has no real investigative arm that can look at such illegal company practices. Proponents of the bill argue, however, that provisions in the law prevent abuses. Dorcy says he was not surprised that business groups lobbied heavily for this law, because they stand to gain. Even under the strict conditions of labor certification in the current law for permanent residency status, the agency still denies only 1 percent to 2 percent of the applications. The INS denies only 5 percent or fewer. Dorcy suggests that had the bill come before the Congress this year, "during a more severe recession and greater unemployment, it might not have passed."

U.S. Immigration Law Both Helps And Hinders Foreign Researchers

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