With roughly a month to go before Inauguration Day, it is clear President-elect Donald Trump’s administration will change many policies. One particularly concerning area is employment-based immigration.
Trump’s immigration proposals present economic challenges for our country. American immigration laws reflect longstanding core values supporting family unification and offering refuge to people persecuted abroad. They also support the U.S. economy’s competitive strength by bringing the best and brightest to compete on our behalf. Given how competitive the global economy is, we have to ensure that any proposed changes enhance, rather than diminish, our advantages.
I have worked as an immigration attorney for more than 20 years. During those years, I have worked with countless decent, determined, hardworking and, quite frankly, amazing people. They come as scientists inventing medical imaging technology, coaches teaching kids soccer, engineers bringing energy to market, doctors bringing health care to medically underserved areas, priests working with churches and ballroom dancers leading dance studios. Seven Nobel prizes were recently awarded to immigrants teaching at U.S. universities. Employment-based immigration makes America’s economy stronger and the American public’s lives richer, more varied and better. When “those” people come here, they are no longer “those” people. They become us; they become our people. We should have them striving here on our behalf rather than on behalf of their home countries.
When judging Trump’s proposals, we have to look to what is best for America. Currently, our best guidance comes from a six-page policy paper put out during his campaign. The paper proposes to make employment-based immigration more expensive, more bureaucratic and slower. Specifically, it proposes, oddly, to force U.S. employers to pay foreign nationals more than they pay U.S. workers. It proposes a cumbersome labor-market test for U.S. employers seeking to hire foreign nationals into bachelor’s, master’s or Ph.D. level positions. Also, it proposes significantly strengthening rules preventing employers from hiring undocumented workers.
U.S. companies should not be forced to pay foreign nationals more than the typical U.S. worker earns. Right now, the H-1B visa program requires that U.S. employers pay H-1B employees at least the industry average in the metro area in which they work and also at least what the employer pays its own people already doing the job. Congress designed these requirements to prevent U.S. employers from importing cheap labor and thereby depressing U.S. wages and working conditions. Going beyond this, however, and forcing U.S. employers to pay foreign nationals more that U.S. workers fails a basic fairness test.
Hiring foreign nationals already can take months and easily adds thousands of dollars to employer costs. U.S. Citizenship and Immigration Services takes more than eight months to extend certain work authorizations. In this context, a labor market test to see if U.S. workers are available before issuing temporary work authorizations to foreign nationals may sound good, but in practice it could add a half year to the hiring process. That cost and timeline would be prohibitive. U.S. companies cannot compete in that framework.
Do we want the best and brightest or don’t we? The economy is not a zero sum game. An electrical engineer from Peru may come here, develop a GPS technology and hire 100 people. If we want to compete, it does not make sense to push away tens of thousands of some of the world’s most highly educated people.
Rules preventing U.S. companies from hiring undocumented workers have to be strengthened. However, if Trump does only that, he will destroy substantial portions of the U.S. agriculture and dairy industries. Some estimates state that undocumented foreign national workers do roughly 50 percent of farm and dairy labor. If we terminate and expel those workers, we destroy or force greater mechanization on those industries. If greater mechanization is not possible, the public will purchase the resulting cheaper goods from other countries.
People glibly suggest that these industries will hire U.S. workers. But Americans now migrate to cities, not farms, and expelling the undocumented is not going to change that. Therefore, strengthening rules making employers check their new hires for work authorization means that America has to enact a new visa category. This category would allow and regulate employers’ ability to hire people from abroad who are essential to industries like agriculture and dairy.
Let’s compete. Bring the determined, the dreamers, the best and brightest. Keep America great.
Frank A. Novak is a partner and leads the immigration practice group at Harter Secrest & Emery LLP.
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