Obama redesigns visa process to appease tech lobby

Lobbyists for the trillion-dollar tech industry pulled off a major immigration coup earlier this month. With just a simple tweak of the visa rules, they managed to secure potentially hundreds of thousands of work permits for their foreign tech staff in the U.S., most of them currently on temporary nonimmigrant work visas. The deal, which no doubt involved intense lobbying of the White House and the State and Homeland Security Departments, is breathtaking in how far it goes and how much it finesses our Congressionally-made immigration laws.  

The Obama administration’s plan involves dramatically slashing the wait-times Indians on temporary work visas have in obtaining work permits. Work permits are basically de facto green cards and give the foreign national complete flexibility in the job market (unlike temporary work visas which are tied to the sponsoring employer). Currently, there are blocks in place on how many annual immigrant visas based on employment can go to a single country. India, due to its giant population, has wait-times of around 8 to 10 years. Obama’s plan will slash this period by around 6 years, breaking the dam on potentially hundreds of thousands of previously backlogged work permit-applicants.  

{mosads}When applicants for a “green card”, or permanent immigrant status, can receive their immigrant visa number is regulated by the State Department’s Visa Bulletin. When they get this number they can then apply to “adjust their status” going from temporary to permanent. Importantly, when an adjustment application is filed, the applicant automatically receives a work permit. For someone inside the country, the wait-time between starting the permanent immigrant application and being allowed to file an adjustment application is many years (as mentioned, it’s 8 to 10 for Indians). But for those outside the country, for instance those applying at an American consulate, the wait-time is much lower. This is because there are far fewer foreign nationals applying abroad due it being harder to convince a company to sponsor you while you’re outside the country. These two tracks will now be conflated under Obama’s new system.  

This change is happening precisely because the nation with the biggest employment visa backlog, India, also produces the greatest amount of temporary workers for the tech industry. Now they’ll be getting fast-tracked work permits allowing hundreds of thousands of them operate in the labor pool along with normal American citizens.  

Most H-1B employers, principally tech firms, want a giant work permit-giveaway even though it will give these formerly dependent workers greater flexibility in the job market. It’s true that Big Tech’s traditionally preferred H-1B-holders over American workers because their visas are tied to the sponsoring employer making them docile and unlikely to unionize. But flooding the labor market with potentially a hundred thousand current and future technicians and programmers (the estimates I’ve read), even with workers who’ll have greater flexibility, is much more important—it also gets rid of H-1B renewal and administrative costs—Tech firms do probably prefer that Congress lift its “stubborn” cap on annual H-1B grants, but due to “gridlock” on Capitol Hill (aka mass grassroots opposition), that’s been ruled out. In their mind, doling out work permits is a fine alternative.  

This work permit giveaway will provide the temporary foreign work-force, artificially implanted to begin with, the same amount of flexibility that American workers have but at much lower costs due to the former being younger and used to lower living standards. The permits will also keep former H-1B “temporary” workers from leaving and it will provide an incentive for many more Indians (and others) to come here. With more permit-holders in the labor market, wages will come under pressure and presumably the prospects for mobility will rise for those foreign workers who were previously way back in the work permit-queue. Other effects include “brain drain” in places like India and more importantly “internal brain drain” here in America with high school kids and undergrads being deterred from pursuing tech-based degrees (which could result in an actual shortage of future American tech workers). This is all coming from a tech industry that spent almost $1.5 billion on immigration lobbying between 2008 and 2012 and was largely born out of our taxpayer-funded military and public universities, such as MIT.  

Further, that work permit-flood won’t be limited to the applicants themselves as both their spouses and children under 21 will also automatically receive the permits. In an ongoing lawsuit against labor market manipulation, the firm I work for, the Immigration Reform Law Institute, recently filed a motion for summary judgment wherein we demonstrated to a D.C. district court that a new rule implemented by DHS to similarly give work permits to the spouses of H-1B applicants would, under DHS’s own admission, invite nearly 169,000 new EAD-holders into the labor market initially and a further 55,000 in the years going forward. Obama’s latest change on work permits (which hasn’t even gone through proper rulemaking procedures) would appear to override that rule and greatly multiply its effects. 

Of course, none of this appears to be legal. The central provision being manipulated here is INA § 245(a)(3), which says that in order to file an adjustment application (and get a work permit), one’s green card must be “immediately available.” But under the government’s new system, the applicant’s only getting the wait-time for their adjustment application slashed, not the wait-time for their green card; for that, they’ll still have to wait the normal period, which, again, in the case of certain Indian applicants, is around 6 years. Can anyone say that something 6 years from now is “immediately available”?  

This is simply one more “evolving definition” of the Obama administration’s ever-widening approach to our immigration laws. As this shield against labor market manipulation dissolves, so will the living standards of the increasingly depopulated American middle class.

Smith is an investigative associate with the Immigration Reform Law Institute.