Introduction legal immigration more broadly
“lungo studio e grande amore” Canto I, The Divine Comedy, Dante Alighieri
Published in 2006, and edited by Adrian Favell and Michael Smith,
the edited volume titled, “The Human Face of Global Mobility:
International Highly Skilled Migration in Europe, North America, and
the Asia-Pacific,” aimed to fill a lacuna in global and transnational
studies by bringing to light the study of highly skilled immigration.
Although the book included a myriad of authors and topics to satisfy an
ambitious and pertinent research agenda, ten years after the volume’s
publication, the scholarly literature in sociology has not advanced much
in the study of highly skilled immigration in the United States.
My aim in this dissertation is to return to the research agenda the
authors suggested in the edited volume. I consider it imperative for
sociology to investigate not only highly skilled immigration, but also
legal immigration more broadly, because in the past two decades there
have been significant changes in the international mobility of migrants
to the United States with the growth of highly skilled immigration vis-à-
vis unskilled immigration; with the penetration of highly skilled
immigrants in certain industries that require specialized knowledge;
and with the growth of temporary visas for highly skilled immigrants
vis-à-vis legal permanent residency visas.
My dissertation initially began with the question of how
immigrants achieve legal permanent residency. I knew this was an
unexplored question and an understudied research topic. Thus I began
by reading literature in different fields: highly skilled immigration,
immigration laws and policies, globalization, and literature on
temporary and permanent visas.
Over three years I read blogs written by the immigration lawyers Cyrus
Mehta and Charles Kuc, which were very helpful for me in
understanding the nuances of highly skilled immigration laws and
policies and how they function. The three years during which
immigration reform was discussed in Congress were very rich in terms
of articles published regularly in newspapers, which I also read, both on
immigration laws in general and highly skilled immigration visas in
particular.
Since I did not have a scholarly model to follow in my research or
a body of literature already written about my topic, I had to reconstruct
the problem and the puzzle I needed to put together in order to answer
my dissertation question. Some of the authors who have been crucial
for my thinking and building the argument in each of the chapters come
from sociology but also political science, history, and economics:
Richard Alba, Gary P. Freeman, Susan Martin, Saskia Sassen, Joseph
Carens, Elizabeth F. Cohen, Gina Neff, Martin Ruhs, Adrian Favell, B.
Lindsay Lowell, and Hal Salzman.
I propose in this dissertation an institutional and agency
approach, in order to answer a new question about a new set of
conditions and processes within a vast architecture of highly skilled
immigration in the United States in the past two decades: highly skilled
immigrants follow a multi-step legal path, first acquiring a variety of
legal statuses, or no legal status at all, and in subsequent stages
achieving legal permanent residency. The central question that
organizes the dissertation has two parts: first, how and why do visa
policies shape the formation and rights of highly skilled immigration;
and second, how and why do visa policies influence the legal, work, and
family trajectories of highly skilled immigrants.
Institutional Approach
I.
Classical theories explain why immigration occurs, focusing on push
factors such as
poverty, low wages in labor-intensive countries, wars and political
instability, or foreign investment, and pull factors, such as segmented
labor markets in industrialized nations, social capital, higher wages in
countries with labor scarcity, and global cities. The missing variables
for these theories to explain why immigration occurs involve the nation-
state and its different models of immigration laws and policies. Theories
that analyze immigration policies typically divide immigration into two
categories: undocumented immigration and legal immigration. Yet this
division is insufficient, too broad, and too imprecise to give a full
account of the changes over the last two decades in the international
mobility of highly skilled immigration to the U.S. Immigration
policies for highly skilled immigrants have diversified over the past two
decades. The proliferation of a variety of migration channels and legal
statuses gave rise to a segmented system of temporary and permanent
visas for highly skilled immigrants. Highly skilled immigration became,
by and large, a multi-step process. Therefore, I suggest in this
dissertation that legal immigration needs to be disaggregated,
deconstructed into the different visa policies, temporary and
permanent, that the U.S. sets up for highly skilled immigrants. By doing
so, we obtain a more precise picture of what we mean by legal
immigration, what it entails, the scope and volume of highly skilled
immigration for each visa policy, and the rights of highly skilled
immigrants attached to each visa policy.
In the past decades, there has been an increase in the number of
temporary work visas issued to highly skilled immigrants. New work
visas were created, such as the H-1B visa; other work visas, such as the
L1 visa, have been reformed to make them more suitable to
contemporary conditions; and the Optional Practical Training (OPT)
program, which grants work permission to international students after
graduating from a U.S. university, was expanded, so that the number of
months graduates can work without changing from a student visa to a
work visa was increased, especially for graduates from science,
technology, engineering, and math (STEM) fields. This diversification of
migration channels and legal statuses for highly skilled immigrants only
occurred in the temporary legal track. The permanent legal track
remained unchanged during the same period of time. As a matter of
fact, the growth of the temporary visas occurred as a consequence of
the constraints the permanent immigration system put on the growing
international mobility of highly skilled immigrants to the U.S. and on the
growing demand from U.S. companies for work visas to sponsor highly
skilled immigrants.
In order to understand the replacement of a permanent legal
immigration process by a temporary one, which entails legal
uncertainty and instability, it is necessary to analyze the political
economy of immigration policies and laws. Who are the actors involved
in the design and approval of immigration laws and policies? What
competing interest groups support or oppose the changes to either
temporary or permanent visas? What are the historical immigration
policies that have been adopted in the U.S. and to what extent do these
immigration policies still inform and permeate the contemporary
development of immigration laws and policies?
The growth of the temporary statuses for highly skilled
immigrants was possible in the past two decades because changes to
temporary work visas are easier to implement than changes to
permanent visas. The competing interests, lobbies, ideological divisions,
and partisan politics are less powerful or at least are easier to manage
when the discussion centers on modifications to temporary visas such
as increasing the number of visas available or changes in administrative
procedures. This is why, during the presidency of Bill Clinton, many
changes were introduced and approved in Congress for temporary
highly skilled immigration laws and policies.
Changes to permanent immigration visas are more difficult
because permanent immigration laws are less flexible, and are more
susceptible to external influences and pressures from lobbyists and
interest groups. Additionally, in the past two decades, reforms to laws
regarding permanent legal immigration were always proposed in the
context of comprehensive immigration reform, as occurred during the
administrations of George W. Bush and Barack Obama. Thus any reform
to permanent immigration laws required the approval of comprehensive
immigration reform that included legal immigration but also
undocumented immigration.
I do not want to overemphasize the role that national dynamics
played in the increase in temporary work visas for highly skilled
immigrants in the past two decades. Indeed, globalization partly
explains this increase because it caused the number of highly skilled
immigrants coming to the U.S. to rise, including the number of
international students. In turn this caused the increased penetration of
highly skilled immigrants in particular industries that require
specialized knowledge, such as information technology, the
pharmaceutical industry, or medicine and health industries.
Furthermore, the increased demand for work visas for highly skilled
immigrants originated from precisely those industries that are at the
center of current globalizing dynamics. Yet globalization is not enough.
It is a necessary but not sufficient variable to explain the increase in the
temporary work visas vis-à-vis permanent visas for highly skilled
immigration. National dynamics, domestic politics, and historically
constituted models of immigration constitute crucial components in
immigration policy decision-making and in the direction highly skilled
immigration will follow. The national dynamics embedded in the nation-
state, such as organized interests and political parties, and the benefits
and costs of temporary vs. permanent immigration programs, explain
why there was an increase in temporary highly skilled immigration; an
increase in the number of individuals awarded legal permanent
residency already present in the U.S. with a temporary visa (hence
adjusting their status) compared to new arrivals; and a dramatic
increase in the number of highly skilled immigrants already present in
the U.S. who adjusted their status to legal permanent residency in the
employment-sponsored category.
II.
As mentioned previously, the complexification of migration
channels for highly skilled immigrants gave rise to a pattern of
segmented immigration. The fragmentation of highly skilled legal
immigration statuses does not imply merely that new legal categories
were added, but rather that a transformation took place in what legal
immigration means. In particular, a prolongation of immigrant time
understood as the time an immigrant needs to achieve legal permanent
residency or U.S. citizenship, and problems related to immigrant
inclusion in the democratic polity and other rights.
One fruitful way to approach these problems is in a fashion that is
both normative and positive. Why is it more beneficial for a country
(and for the immigrants themselves) to have immigrants with
permanent legal status instead of temporary legal status? What are the
constraints that segmented immigration, divided between temporary
and permanent legal statuses, imposes upon the international mobility
of the highly skilled? How does segmented immigration with temporary
and permanent legal statuses affect highly skilled immigrants’ rights?
What are the consequences of the diversification of highly skilled
immigration in temporary vs. permanent legal statuses for immigrants’
membership and inclusion into democratic societies?
From a normative standpoint, the diversification of legal statuses
between temporary and permanent visas entails a differentiation of
highly skilled immigrants’ membership in democratic societies because
two legalities coexist: one that values certainty, rights, and stability
(permanent immigration); the other one that values instability, risk, and
limits the rights of immigrants (temporary immigration). A segmented
highly skilled immigration puts into question the democratic principle
that aims to provide immigrants eventually with equal terms of
membership and rights. It also separates highly skilled immigrants into
distinct classes by virtue of their legal status, but not as a function of
their education, work experience, skills, payment of taxes, home
ownership, and, generally, integration into the U.S. society. The
inclusion of legal permanent residents in democratic societies has not
been fully achieved, that is, immigrants with legal permanent residency
do not have the right to vote and do not have access to work in certain
jobs in public services. Nevertheless legal permanent residents have
substantial rights, such as the rights to remain permanently in the
country, to choose an employer, or to sponsor relatives for legal
permanent visas through the familysponsored category. But also legal
permanent residents (LPRs) have legal stability and certainty about the
process of becoming U.S. citizen. The option to become a U.S. citizen is
denied to immigrants with temporary legal statuses regardless of how
many years they stay in the U.S.
Thus an LPR who stays in the U.S. for three years, never worked or
studied in the U.S., and achieved legal permanent residency by
marrying an American citizen can apply for citizenship. An immigrant
who studies and works in the U.S. for ten years with temporary visas,
however, cannot apply for citizenship without first remaining five years
in LPR status. The inequality among legal trajectories, and the different
rights attached to each legal trajectory stratify highly skilled
immigrants in democratic societies. Membership in and inclusion into
democratic societies become different categories that do not
necessarily align in a context in which membership to democratic
societies is expanded but at the same time full inclusion into democratic
societies is restricted.
From a normative standpoint temporary immigration is exploitative for
immigrants
because it violates the principle of egalitarianism. A democratic society
should tolerate the admission of immigrants under temporary legal
statuses only when it is for a limited period of time. This is not what
occurs in the U.S. and other economically advanced nations, however. In
these countries, the number of years immigrants must remain in a
temporary legal status before achieving legal permanent residency is
unclear, arbitrary, and depends on the legal trajectory of each
immigrant. Immigrants’ legal trajectories are not pre-defined by
immigration laws but vary depending on the work and legal
contingencies immigrants face while building their legal trajectories.
The argument about the number of years highly skilled
immigrants, but also all immigrants more generally, remain under
temporary legal statuses is a key discussion in contemporary
democratic societies. Voices from both the right and the left are being
raised to argue in favor of limiting the rights granted to immigrants;
some with the goal of decreasing global inequality, to give a progressive
argument, or in the name of protecting American workers, an argument
made by trade unions and conservative politicians.
From a positive point of view, the variety of legal statuses
fragment highly skilled immigrants coming to the U.S. and the rights
attached to each legal track; not only the permanent and temporary
legal tracks, but more specifically each temporary visa has different
rights attached. Therefore a highly skilled immigrant may work in the
same job for many years, but go through three different temporary legal
statuses in the same job before achieving legal permanent residency, all
while remaining in the same job. Or many highly skilled immigrants
may work in the same industry, have the same skills and do the same
job, but their legal statuses vary, their legal trajectories vary, and their
rights vary as well by virtue of their different legal statuses. When we
compare highly skilled immigrants with permanent and temporary legal
statuses, the most affected rights under temporary legal statuses are
social rights, economic rights, residency rights, and family rights.
To synthetize, the institutional approach investigates the changes
that have occurred in highly skilled immigration to the U.S. in the past
two decades, focusing particular attention on the changes to, and
dynamics of, highly skilled labor migration, the changes to immigration
laws and policies, the place of national dynamics and globalizing
dynamics on the growth of temporary highly skilled immigration vis-à-
vis permanent immigration, and the direction, scope, and rights of
highly skilled immigrants attached to each legal track, temporary and
permanent.
Agency Approach
I.
The agency approach shifts the analysis from an institutional to an
agent-centered approach by turning to the experiences of highly skilled
immigrants. Based on thirty semistructured interviews with highly
skilled immigrants, I explain how and why the fragmented system of
temporary and permanent visa policies affects highly skilled
immigrants’ legal, work, and family trajectories. The interviews
provided rich, multifaceted data because a variety of industries,
occupations, and nationalities were represented. This diversity in turn
enhanced the analysis of highly skilled immigrants’ legal trajectories
and array of work and family experiences.
The data from the interviews allowed me to shed further light on
the highly skilled immigration trend identified with quantitative data in
chapter two. Yet the interviews with highly skilled immigrants and the
narratives they gave about their legal trajectories since arriving in the
U.S. illuminated a phenomenon previously unseen in both the scholarly
literature and in my own research before conducting the interviews.
The crucial albeit hidden feature I recognized emerging from the
interview data is highly skilled immigrants’ agency; they build their own
legal trajectories. Highly skilled immigrants’ agency plays a
fundamental role in building their legal path towards legal permanent
residency.
I suggest explaining how and why highly skilled immigrants build
their legal trajectories with two terms, which are inspired by the
literature about high-tech industries: entrepreneurial ethos and
privatization of risk. Entrepreneurial ethos refers to the way highly
skilled immigrants perceive their role in building their legal
trajectories. There was a shift in immigrants’ cognitive understanding
of their agency in building their legal path, because they now perceive
themselves as key actors, that is, as entrepreneurs whose action in
building their own legal path can be decisive, even in the face of legal
and work contingencies. Privatization of risk refers to the shift on who
bears the costs of the legal path towards legal permanent residency.
The burden has shifted from institutions–the economy, the employer,
and the government-to highly skilled immigrants themselves. In other
words, privatization of risk individualizes risk. Risk is a constitutive
element of any legal path that entails having a variety of temporary
legal statuses, or no legal status, before achieving legal permanent
residency. Risk also implies a devaluation of immigrants’ time, because
it is not legally pre-established how many years immigrants will have
temporary legal statuses before achieving legal permanent residency. In
short, risk and legal uncertainty are inherent to highly skilled
immigrants’ legal trajectories until they achieve LPR status.
Based on the narratives collected in interviews about individuals’
legal trajectories, I identified three paths to legalization. None of them
is legally pre-established by immigration laws, but each expresses the
experiences of highly skilled immigrants building their legal trajectories
towards legal permanent residency. The first path to legalization is a
smooth and linear path. Highly skilled immigrants do not experience
any interruption in their legal trajectory. Thirteen out of the thirty
interviewees followed this path. The second path to legalization is a
path that twelve out of the thirty highly skilled immigrants followed.
This path to legalization was interrupted by legal or work
contingencies, which required highly skilled immigrants to become
more proactive building their legal trajectory, to assume the risks of the
legalization path. The third path to legalization, followed by five highly
skilled immigrants, is one that, like the second highly skilled
immigrants adopt who experienced work and legal contingencies in
their legal path, but unlike the second path, immigrants self-sponsor
their legal permanent residency.
II.
The data from the interviews elucidated the extent to which
segmented immigration, with temporary and permanent visa policies,
affects highly skilled immigrants’ work and family experiences. Based
on the narratives highly skilled immigrants gave about their family
trajectories, immigrant families are affected by legal status issues.
Immigrants treat their legal status as vital for their family life in the
U.S., and as such, are willing to invest capital and take risks when they
face legal or work contingencies to conserve their legal residency.
Immigrants’ investment of capital in their legal path is seen as a
substantive investment in the life of the family, similar to buying
property or buying a car.
Many family decisions are taken in relation to legal decisions and
legal statuses: for example, in the case of significant family events like
marriage, or the question of in which country to reside until they can
resolve their legal problems. Additionally, depending on which
temporary legal track highly skilled immigrants pursue, their spouses
may or may not be granted the right to work. Hence, in some
circumstances, the family makes legal decisions based on which visa,
temporary or permanent, will grant the spouse the right to work.
The multi-step legal path also affects highly skilled immigrants’ careers.
The achievement of legal permanent residency constitutes a turning
point for immigrants’ career path: when legal permanent residency is
established, they secure a series of labor rights that under temporary
work visas sometimes they have to compromise, such as working
conditions, benefits, and wages. Also, the recognition of credentials is
another problem some highly skilled immigrants face, not only by the
labor market but also by immigration laws (for example, college
degrees from other countries are not always recognized as equivalent
to a bachelor’s degree in the U.S.). In every industry represented in the
interviews, highly skilled immigrants faced difficulties finding a job to
sponsor their work visa, temporary or permanent. The reasons why this
occurs are not related to immigrants’ skills and education, or legal
market needs, but to the limitations and constraints permanent and
temporary immigration laws and policies imposed upon the
international mobility of highly skilled immigrants and their penetration
into the U.S. labor force.
Dissertation Chapters
The dissertation is composed of seven chapters, which include
introduction and conclusion. Methodological reflections can be found in
an Appendix. In the introduction, chapter 1, I offer a holistic
representation of the argument. It outlines the most important parts of
the argument that will be addressed in each of the chapters. Chapter 2
is entitled “The Political Economy of Highly Skilled Immigration Visa
Policies.” In this chapter, I explain the political economy of highly
skilled immigration to the U.S. in an age of globalization. I explain why
visa policies constitute a significant pull factor to explain the scope and
rights of highly skilled immigrants over the past two decades. I explain
why globalization, while a necessary condition, is not sufficient to
explain the complexification of migration channels and legal statuses
for highly skilled immigrants since the 1990s because global and
national dynamics contributed also to this complexification. I analyze
the national dynamics embedded in the nation-state that explain this
diversification of legal statuses and why this diversification occurred,
such as organized interests and political parties, and costs and benefits
of temporary and permanent programs for highly skilled immigration.
Lastly, I explain why labor shortages constitute one of the main reasons
that American companies demand an increase in the number of work
and permanent visas for highly skilled immigrants.
Chapter 3 is entitled “Rights of Highly Skilled Immigrants.” In this
chapter, I trace the development of and the changes to migration
channels and legal statuses for highly skilled immigrants, temporary
and permanent, since the Immigration and Nationality Act of 1965. In a
second section of this chapter, I analyze the rights of highly skilled
immigrants in a fragmented immigration policy composed of permanent
and temporary visas. I frame the discussion of rights from normative
and positive standpoints. I specifically analyze labor programs for
highly skilled immigrants and residency, family, labor, economic, and
political rights attached to each legal track, temporary and permanent.
Based on the rights attached to each legal track, I suggest describing
permanent highly skilled immigration as belonging with full inclusion.
This is a type of membership in democratic societies that values legality,
time, certainty, and autonomy. I suggest describing temporary highly
skilled immigration belonging with partial inclusion. This is a type of
membership that values legality but it is qualified by uncertainty and
instability and devaluates immigrant time.
Chapter 4 is entitled “Highly Skilled Immigration in the United
States in an Age of Globalization.” In this chapter, I employ quantitative
data to map highly skilled immigration over the past two decades.
Using data from the U.S. Census, the American Community Survey, the
Office of Immigration of the Department of Homeland Security, and the
National Science Foundation, this chapter explains why globalization
has driven the growth of highly skilled immigration, international
students, and the penetration of highly skilled immigrants into certain
industries that require specialized knowledge such as science,
technology, engineering, and math (STEM) fields. I also explain the two
most important trends in highly skilled immigration in the past two
decades: the growth of temporary legal statuses and the growth in the
number of highly skilled immigrants who applied for legal permanent
residency in the employment-based category while already in the U.S.
vis-à-vis the number of new arrivals. I employ statistical data from the
Department of Homeland Security to analyze the direction, scope, and
demographic characteristics of highly skilled immigration. To do so, I
analyze quantitative data on temporary work visas for highly skilled
immigrants, i.e., H-1B and L-1, and Optional Practical Training, which is
the work permission international students who graduate from a U.S.
university have. Also, I analyze quantitative data on family-based and
employmentbased permanent visas for highly skilled immigrants.
In the next two chapters, the analysis shifts from an institutional
to an agent-centered approach. These chapters are based on thirty
semi-structured interviews with highly skilled immigrants. Chapter 5 is
entitled “Entrepreneurial Ethos and Privatization of Risk: Highly Skilled
Immigrants’ Legal Trajectories” and chapter 6 is entitled “Multi-Step
Legal Pathways and Highly Skilled Immigrants’ Work and Family
Experiences.” In chapter 5, I explain highly skilled immigrants’ agency
in building their legal trajectories. Based on the narratives highly
skilled immigrants gave about their legal trajectories, I divided their
paths to legalization in three categories. Later in this chapter, I suggest
analyzing how and why highly skilled immigrants assert their agency to
build their paths to legalization with two terms: entrepreneurial ethos
and privatization of risk.
In chapter 6, I analyze the extent to which visa policies affect
highly skilled immigrants’ family and work trajectories. The
differentiation of legal statuses affects highly skilled immigrants’
spouses’ right to work. For example, while spouses of H1-B visa holders
receive an H4 visa, which do not allow them to work, spouses of
immigrants with temporary visas L1 or J1 have the right to work. Family
decisions are intertwined with work decisions but also with legal ones.
Immigrants must reconcile significant events in their family life, such as
marriage or buying property, to the building of their legal trajectory.
Achieving LPR status constitutes a turning point that provides not only
stability and legal certainty but also full inclusion into American society.
Building successful legal trajectories also affects family life, because in
the majority of the cases highly skilled immigrants hire a lawyer to
assist in building their legal trajectory. Though the investment of capital
to hire a lawyer and to pay immigration fees is expensive, families do
not perceive this investment of capital as a cost but as a necessary
investment for the family such as buying a car or house.
Highly skilled immigrants legal statuses also affect their career
paths. As I mentioned previously, achieving legal permanent residency
constitutes a turning point in the career of highly skilled immigrants
because it allows them to choose their employer. Immigrants are no
longer attached to an employer as immigrants with work temporary
visas are. This naturally opens new work options for immigrants, but
also allows them to negotiate better wages and working conditions.
Some highly skilled immigrants also have difficulties with the
recognition of their credentials in the labor market, but some are
limited by immigration laws. In practically every industry and
occupation represented in my interviews, highly skilled immigrants
encountered problems finding a job that would sponsor work visas. As a
consequence, immigrants often accept jobs below their qualifications or
with lower wages, and remain in these jobs, simply because the job
allows them to remain in the U.S. while they work to complete their
legal path to legal permanent residency.
To synthetize, a segmented immigration policy forces highly
skilled immigrants to follow a multi-step legal path. Hence, family and
work trajectories are interwoven with legal trajectories. The
achievement of legal permanent residency represents a turning point in
the lives of highly skilled immigrants because with it comes legal
certainty and stability, but also the achievement of substantive rights
that are vital for their lives in the United States, such as right of
residency, economic rights, social, and family rights.
In the conclusion, chapter seven, I summarize the main argument
advanced in the research. I explain why the United States does not have
a talent attraction and talent retention immigration policy for highly
skilled immigrants. I explain also my dissertation’s contribution to three
fields: 1) global and transnational sociology; 2) an emerging field on
visa policies; 3) and labor immigration. I propose two lines of research
to further the argument, analytical model, and terms coined in the
dissertation for the study of highly skilled immigration. The first line of
research is a comparative study between the United States and a
country with a skills-points based immigration system, for example
Canada or the UK, in order to compare how and why highly skilled
immigrants navigate their legal, work, and family trajectories in
countries that follow different models of immigration laws and policies.
The second line of research aims to expand the research in the United
States by focusing on specific industries and occupations such as
science, technology, engineering, and math fields. The aim is to explore
how and why highly skilled immigrants build their legal trajectories in
industries in which participants encountered difficulties finding a job
that sponsors temporary or permanent
visas.
Finally, in the appendix on methodological reflections, I propose a
reflection on the methodology employed in the dissertation, a single
case narrative method, the sources of secondary data, and the
production of primary data through interviews. I also include the
questionnaire employed to interview highly skilled immigrants.
Chapter Two The Political Economy of Highly Skilled Immigration
Visa Policies
Introduction
In this chapter, I will begin by explaining why questions about the
impact of visa policies on the international mobility of highly skilled
immigrants and their legal, work, and family trajectories in the U.S.
have been underresearched mostly due to the predominance of classical
theories used to explain why immigration occurs. Secondly, I discuss the
problem of labor shortages and the extent to which it is a valid claim for
U.S. companies to demand an increase in visas for highly skilled
immigrants since the 1990s. Lastly, I explain why globalization is a
necessary, but not sufficient condition to explain the complexification of
migration channels and legal statuses for highly skilled immigration
that has occurred since the 1990s. Globalization constitutes one face of
the coin because global and national dynamics interact and contribute
to give rise to the fragmented system of temporary and permanent legal
statuses for highly skilled immigrants.
Visa Policies to Explain Why Highly Skilled Immigration Occurs
The classical theories used to explain why immigration occurs are
neoclassical economics; the new economics of labor migration;
segmented labor market theory; social capital theory; cumulative
causation; nation-state immigration laws and policies; world systems
theory; and finally, the juxtaposition of three processes: the rise of
foreign investment, the rise of global cities, and the new labor demand
(Massey 1997). Neoclassical economics proposes that international
migration is caused by geographic differences in the supply of and
demand for labor. Workers move from low-wage or labor-surplus
countries to high-wage or laborscarce countries. A microeconomic
model of individual choice is associated with this macroeconomic
theory. Individual actors decide to migrate because a cost-benefit
calculation leads them to expect a positive net return after migration.
They move to countries where they can improve the investment of their
human capital because they assume that higher productivity and the
improvement of their skills lead to higher wages.
By contrast, the perspective of the new economics of migration is
that decisions to migrate are made not by isolated individuals but by
families or households. Households send one or more workers abroad to
accumulate savings or to send wages or savings home in the form of
remittances. These remittances are used for either consumption or
investment. The household’s decision to send immigrants to work
abroad is done not only to improve their income in absolute terms but
also relative to other households and thus to decrease their relative
income deprivation.
The third classical theory more typically used by sociologists is
segmented labor market theory. This theory ignores the prior theories
of rational choice and individual decision-making and claims that
international migration is caused by labor demands in industrialized
nations. There is a permanent labor demand that is inherent to the
structure of the labor market in industrialized nations. Immigration,
thus, is caused less by push factors than by pull factors: a chronic need
for low-wage workers. Three factors explain the need of inexpensive
and flexible labor of the industrialized nations: 1) structural inflation; 2)
social constraints on motivation embedded within occupational
hierarchies; 3) inherent duality of labor and capital.
Another classical theory that explains why immigration occurs is
world systems theory; this theory points out that much of the foreign
investment in developing countries since the 1970s has gone into
production for export. Export-manufacturing and export-agriculture
sectors tend to be highly labor-intensive kinds of production, which
disrupt traditional work structures and mobilize new segments of the
population into wage-labor and into regional migrations. On the other
hand, global cities are centers that act as pull factors, attracting the
restructured labor from these developing countries. Here labor demand
occurs mainly in the growing service sector, including in the financial
system; shrinking traditional manufacturing industries are replaced
with a downgraded manufacturing sector and by high-technology
industries. As a result, there has been an expansion of high-skilled jobs,
shrinkage of blue- and white-collar jobs, and expansion of low-wage
jobs. Thus, immigrants work in the expanding downgraded
manufacturing sector and the low-wage service sector, which includes
those that service the expanding and highly specialized, export-oriented
service sector, as well as the highincome professionals in that sector.
Another classical theory that explains why immigration occurs is
social capital theory. Social capital is composed of the resources people
have based on having durable social networks. People gain access to
social capital through membership in social networks and institutions.
Social capital explains how the selection of immigrants in the sending
country operates. Those immigrants who qualify to migrate are those
with social capital in the destination country, which will help them, at
least in the first years of settlement, with housing, a group of reference,
or employment. Cumulative causation is another classical theory
somewhat related to the effects on immigration that social capital
produces. Over time international migration tends to sustain itself in
ways that make additional movement more likely. Each act of migration
alters the social context of migration for those who come later.
Thus, international migration becomes, through time, a self-
perpetuating movement. These classical theories purport to
explain the many and diverse flows of international migration. Though
they are insightful and important theories, because each elucidates
significant dimensions and processes to explain how and why the
international movement of population occurs, they have ignored a
crucial variable: the nation-state. The study of the nation-state as an
actor that plays a central role in driving international migration
focuses on immigration laws and policies. Immigration policies refer to
the study of the different mechanisms through which the nation-state
determines the entry of international immigrants. Yet those scholars
who attribute an important role to the nation-state in the international
mobility of migrants have restricted their studies of immigration laws
and policies and the process of immigration policy-making to the broad
distinction between legal or illegal immigration. The question that
organizes the dissertation has remained understudied. In a
historical context of growing complexification and fragmentation of
legal statuses for highly skilled immigrants, it is crucial to deconstruct
the legal vs. illegal dichotomy in immigration in order to problematize
what legal immigration means, how it is achieved, and which visa
policies are involved. Therefore the research aims to emphasize the
centrality of visa policies as a pull factor to explain why highly skilled
immigration occurs: on one hand, the impact of visa policies to
determine who enters the country, under what conditions, and with
what rights; on the other hand, the impact of visa policies on the legal,
work, and family trajectories of highly skilled immigrants in U.S.
society.
A few scholars, however, have investigated some of the stages of
the complex process immigrants undergo to attain legal permanent
residency. In a recent study by Rissing and Castilla (2014), the authors
explain the role of government agents in shaping the employment of
immigrants. The authors analyze application data for immigrant
permanent labor certification by U.S. Department of Labor agents. The
study found that labor certification approval differs significantly by
country of origin. Asian immigrants are more likely to receive labor
certification compared to Canadian immigrants. In contrast, citizens of
any Latin American country are less likely to receive labor certification
approvals than Canadians. Yet the authors found that these differences
disappear when agents review audited applications with detailed
employment information.
Based on the data collected in the New Immigrant Survey, Massey and
Malone (2002)
published revealing articles to explain the different paths to legalization
for green card holders, and the fact that new arrivals constitute 34
percent of the green cards granted. The majority adjusted their status
and previously had a variety of temporary legal visas. The authors
distinguish seven pathways to legalization: new arrivals, illegal border
crossers, visa abusers, non-resident visitors, non-resident workers,
students/exchange visitors, and refugees/asylees.
Jasso, Wadhwa, Gereffi, Rissing, and Freeman (2010) studied the
number of highly skilled foreign-born persons waiting for legal
permanent residency through the three main employment-based
categories. The data were disaggregated by whether they are living in
the United States or abroad and the number of family members. The
authors found that for the fiscal year 2006, there were around half a
million employment-based principals awaiting legal permanent
residency in the United States, with an additional half million total
family members. They also found there were over 125,000 principals
and family members waiting abroad. Since the number of visas
available annually is much lower, the authors concluded that the
backlogs and long delays in attaining legal permanent residency are a
visa number problem, not an administrative processing problem.
The Political Economy of Highly Skilled Immigration Visa Policies
Globalization is reshaping the world. It has created new conditions
for the mobility of capital and the transnational mobility of labor
migration as well as the transformation of the nation-state, challenging
its sovereignty and authority. Globalization has also generated the
conditions of possibility for the complexification of migration channels
and legal statuses for highly skilled immigrants in the United States.
The fragmentation of legal statuses has made immigration a multi-step
process: many highly skilled immigrants first have temporary legal
status, or no legal status, and in subsequent stages they move toward
legal permanent residency.
The complexification of migration channels and legal statuses for
highly skilled immigrants that gave rise to a fragmented and segmented
system of temporary and permanent legal statuses has to be understood
in the context of two interrelated processes: globalization, and the
centrality of the U.S. nation-state in the design of immigration policies
and laws.
Global and transnational studies are typically written from one of two
perspectives: those who argue that the nation-state has lost prominence
in the context of globalization and transnationalism, and those who
argue that it has not. Highly skilled immigrants, in this debate, have
been placed on the side of globalization and the decline in the nation-
state prominence. They are perceived as the privileged class:
cosmopolitan elites who along with the free movement of capital have
the privilege of facing fewer barriers and obstacles to their free
movement, much more so when compared with other more
disadvantaged immigrants, such as refugees and asylum seekers,
undocumented immigration, and even legal unskilled immigration.
The social sciences that continue thinking within the confines of
the nation-state reproduce and are prisoner of a sort of methodological
nationalism that takes for granted the isomorphism between nation-
state and society. In these global and transnational times, immigrants
became transmigrants; hence the isomorphism between nation-state
and society vanishes because (trans) migrants live in a sort of de-
territorialized space by virtue of their belonging to two nation-states
(Robertson 1992, Glick-Schiller, Basch, and Szanton 1992, Wimmer and
Glick-Schiller 2002).
Scholars criticized the emphasis on the disappearance of the
nation-state under a globalization less because they deny the new
conditions that globalization and transnationalism entailed but more
because they still consider the need for more conditional and contingent
analysis of the role of the nation-state under globalization. The global
does not enter and transform a nation-state that is a monolithic and
coherent unit, because the nation-state is not homogeneous unit or
fixed and unchanged structure. The process is more complex. The
nation-state may become more globalized in some areas of the state and
less globalized in other areas. Furthermore, in some areas national and
global dynamics coexist, which exemplifies that the nation-state, at this
stage of globalization, still has a preponderant role even in the way in
which it answers and sometimes embraces new global and transnational
processes and conditions (Sassen 2014, 2007, 2006, 1988; Waldinger
2015). To clarify by taking immigration policies as an example: in some
areas, the state may be more global, for instance, Golash-Boza (2016)
points out that we need to think of the role of the current phase of
global restructuring and the latest crisis of global capitalism as
conditions of possibility for the emergence and growth of deportation
policies in the U.S. Another typical example where the influence of
global dynamics is strong, though not in the field of immigration, is the
financial sector. Yet, in other areas, I argue, national dynamics play a
significant role in the proliferation of migration channels and legal
statuses for highly skilled immigration, its development, and current
trend in this phase of globalization.
As I will explain in the next chapter, globalization has shaped the
role of skilled labor migration under contemporary capitalism,
exemplified in the growth in the demand for and supply of highly skilled
immigrants, and the increase in the number of immigrant visas
American companies requested in the past two decades. Yet,
globalization also explains the creation, to satisfy this demand, of a
segmented immigration system of temporary and permanent visas for
highly skilled immigrants, which gave rise to the multi-step process for
highly skilled immigrants.
In explanatory terms, however, globalization constitutes one face of the
coin.
Globalization is a necessary but not sufficient condition to explain the
complexification of migration channels and legal statuses for highly
skilled immigrants that has occurred since the 1990s. It constitutes one
face of the coin because global and national dynamics coexist; both
together give rise to the fragmented system of temporary and
permanent legal statuses. Globalization does not explain why the United
States resolved the need for more visas for highly skilled immigrants by
creating and increasing the number of temporary visas instead of, for
example, reforming the legal permanent resident system and
augmenting the number of green cards available for highly skilled
immigrants. It does not explain either why the United States has not
developed a talent attraction or talent retention immigration policy, as
some other industrialized nations, such as Canada or the U.K., have.
The explanation of why the U.S. created and expanded the temporary
immigration system vis-à-vis the legal permanent resident system, or
why the U.S. has not developed a talent attraction or talent retention
immigration policy, lies precisely in the coexistence of national
dynamics and non-national dynamics, and their differential weight in
defining immigration laws. The global does not enter into the nation-
state and transform it, but significant national dynamics within the
nation-state are activated to give an answer to the new conditions
globalization has entailed. Thus, the U.S.
nation-state is at the center of the current phase of globalization.
The complexification of migration channels and legal statuses for
highly skilled immigrants since the 1990s happened at a historical
moment in which the United States answered the demands of
globalization by mixing global and national dynamics. In this process, it
was constrained less by global dynamics than by the following national
dynamics: first, the main actors that historically have participated in the
design of immigration laws and policies and, second, domestic politics
and the process of immigration policy-making.
The national dynamics and elements at the core of the
complexification of migration channels and legal statuses for highly
skilled immigrants are well explained by Gary Freeman and David Hill
(2006), who point out that “specific components of large and
heterogeneous immigration programs are associated with different
styles of politics (…) we propose that skillbased immigrant visas for
permanent residence will tend to produce a mode of politics distinct
from the temporary labor visas” (pp: 110/112). There are four
differences between these two programs that have an influence in the
benefits and costs of each one: first, duration (temporary vs.
permanent); specificity (whether they target specific labor sectors);
flexibility (how fast they can be modified); and lastly, size (Freeman and
Hill 2006):
1) Employment-based immigrants’ visas are for permanent
residency while H-1B
and L-1 visas are for fixed terms, with possibility of
renewal, and do not directly convert into permanent
residency.
2) Employment-based immigrant visas address specific
categories but not
specific industries or sectors while H-1B and L-1 visas
address specific occupational sectors, primarily
information technology, the sector that concentrates the
highest number of visas but also scientific, engineering,
medical research and universities.
3) The employment-based immigrant visa system is inflexible,
because of the
political effort required to modify their composition and
number. The program is not easily modified to satisfy
immediate labor market needs. H-1B and L-1 visas, taking
into account the legislative modifications introduced in
these visas since the 1990s, are more malleable, and
subject to modifications in their character and number
based on labor market needs.
4) Employment-based permanent immigrant visas are capped at
140,000 per
year, but many of the recipients in this category are non-
working dependents of visa recipients, which make the
number of actual employment-based visas lower. In the
case of H-1B and L-1 visas, all visas are allocated among
new entries and renewals, because dependents have their
own specific visa as H-1B or L-1 dependents.
Besides these differences in the benefits and costs associated with
each program for highly skilled immigrants, temporary or permanent,
they are also subject to the particular characteristics of domestic
politics and the process of immigration policy-making: for example,
which decision-making arena affects each visa type, benefit-cost
allocation and issue definition, and organized interests and political
parties. Pertaining to the decision-making arena, American immigration
policies are formulated in the executive and legislative spheres.
Congress makes any changes to the quota of immigrants admitted,
while the executive branch does not have much discretional authority to
modify this number as in other Western democracies. Moreover, in both
chambers of Congress, the House of Representatives and Senate,
authority over legislative affairs is delegated to committees. The
Judiciary Committee has jurisdiction on immigration matters. These
committees also delegate to sub-committees the responsibility of
initiating new legislation on immigration. As a result, these committees
have a great deal of power over the legislative agenda on immigration
and whether bills will reach the floor, opening legislation to intense
lobbying (Oleszek 2004; Freeman and Hill 2006). Other executive
departments with authority over various aspects of immigration
programs play limited roles in the initiation or formulation of policy, like
the (former) Immigration and Naturalization Service (now ICE) under
the Department of Homeland Security.
The debate over highly skilled immigration was often marginalized
in the debates concerning comprehensive immigration reforms, as
occurred during the presidencies of
George W. Bush and Barack Obama. However, the debates and reforms
introduced in the 1990s during Bill Clinton’s presidency occurred
because Congress addressed specific pieces of immigration legislation.
In spite of the fact that immigration reform remains primarily within the
legislature’s purview, the president, through executive actions, has the
authority to modify some immigration policy statutes. For example,
President Barack Obama introduced in his immigration executive action
in October 2014 a modification of the H4 visa, for spouses of H1B
holders, to allow them to work (dependents on the H4 visa do not have
the right to work) while green card applications are pending.
The second aspect, benefit-cost allocation and issue definition,
refers to the question about who wins and who loses with the
complexification of migration channels and legal statuses for highly
skilled immigrants. This issue depends on which rights highly skilled
immigrants have under a temporary or permanent legal status. This
point will be discussed in detail in chapter 3. A further discussion is
who wins and who loses when highly skilled native workers and highly
skilled immigrants are compared. This last aspect leads us to the
debates on the role of labor shortages in the labor market in shaping
skilled labor migration, which will be discussed in the next section.
Gary Freeman and David Hill (2006) point out that debates over
shortages, whatever their empirical merit, are always won by those
claiming shortfalls.
Cornelius observes: “What cannot be questioned is that, in the United
States and virtually all other major labor importing countries today, the
political process invariably operates to legitimize employer demand for
high-skilled foreign labor…Employers, whether in industry, government,
or universities, are better situated to marshal data and attract
audience” (2001:8).
Whether highly skilled immigrants compete with, displace or
complement native highly skilled workers depends on labor market
needs and dynamics. But it is also true that under the current system
employers’ discretionary use of highly skilled immigrants clearly
illustrates the inadequate functioning of the requirement that stipulates
companies’ hiring immigrants must be approved by the Department of
Labor, so that native-workers are not affected. This was recently shown
when, to give just one example, Walt Disney told 250 employees that
they would be laid off, and in turn “many of their jobs were transferred
to immigrants on temporary visas for highly skilled technical workers,
who were brought in by an outsourcing firm based in India. Over the
next three months, some Disney employees were required to train their
replacements to do the jobs they had lost. But the layoffs at Disney and
at other companies, including the Southern California Edison power
utility, are raising new questions about how businesses and outsourcing
companies are using the temporary visas, known as H1B, to place
immigrants in technology jobs in the United States. These visas are at
the center of a fierce debate in Congress over whether they complement
American workers or displace
them” (New York Times, June 3, 2015).
As previously stated, lobbying in the immigration field is strong,
and varies depending on whether the discussion involves permanent or
temporary visas. Regarding the possibility of modifying the permanent
visas system, it is less flexible than the temporary visas system, because
proposing changes to the permanent system has always been done in
the context of comprehensive immigration reform. Also, proposed
changes to the permanent employmentbased system could eventually
meet with the opposition of “the family lobby,” which advocates for
family reunification as the main route for immigrants to attain legal
permanent residency, and as the main philosophy behind immigration
laws and policies. The possibility of introducing a skills-based system
for highly skilled immigrants in the system of permanent visas could
meet with the opposition of labor unions as well as the family lobby.
Temporary visas for highly skilled immigrants are more flexible
and adaptable to change. There are clearly interest groups on each side
of the spectrum. Since temporary work visas do not compete with
family migration, Gary Freeman and David Hill point out, “although
their main interests did not always converge, business interests and the
family lobby did not have mutually exclusive goals” (2006, p: 127). On
the one hand, United States Chambers of Commerce and lately the
high-tech industry lobby are strong defenders of the temporary system
of visas for highly skilled immigrants. Labor unions, however, have been
more reluctant to accept the H-1B and L-1 visa programs. The AFL-CIO
traditionally has said these programs enable foreign professionals to
gain knowledge and take American jobs, after which they return to their
countries with knowledge acquired in the United States. The
Federation’s Department for Professional Employees lobbied Congress
against increases in H1B ceilings. Their position is that employers
should be more regulated to prevent them from laying off American
workers to replace with H-1B workers; in turn they should recruit and
train American workers to fill these jobs. The official positions adopted
by Republicans and Democrats about highly skilled immigration are not
as distinctive as with other more controversial issues, such as extension
of citizenship for undocumented immigrants. Indeed, the last
comprehensive immigration reform approved in the United States
Senate in 2013,
S.744, which did not pass in the House of Representatives, was
introduced by D-NY Senator
Charles Schumer and formulated by a bipartisan commission composed
of Democrat and Republican senators.
Growth of Temporary Visas and Labor Shortages
Since the 1990s, the two most important highly skilled
immigration trends are related to: 1) the complexification of migration
channels and legal statuses for highly skilled immigrants with different
degree of residency and security; 2) an increase in green cards awarded
annually (more than 85%) that adjusts immigrants’ status to legal
permanent residency from a temporary visa in the employment-based
category. The growth of work temporary immigration programs
occurred in the 1990s, when companies located in certain industries,
e.g.
information technology, increased the demand for highly skilled
workers. Thus, since the
1990s, important changes rested on growth of temporary visas for
highly skilled immigrants.
The need of work visas for U.S. companies was founded on labor
shortages, in the absence of enough American workers trained in
science, technology, engineering, and mathematics (STEM) fields to
satisfy the demands of the sector. The National Academy of Sciences
(2006), the Association of American Universities (2005), and the
Government, University, Industry Roundtable of the National Academy
of Sciences (2003) published reports that pointed to the need for an
increase in scientific and engineering graduates in the U.S. The CEOs of
Intel, Microsoft, and other high-tech firms argued the same. Insofar as
there is a shortage of STEM workers for these individuals and groups,
they also generally favor the immigration of highly skilled workers,
particularly H-1B holders and other temporary work visas. They also
advocate for the education of U.S. citizens in these fields, particularly
minorities (Freeman 2006).
The argument that points out labor shortages in STEM fields is not
founded on empirical research, particularly in three areas. First,
research disputes the claim that the U.S. does not have enough STEM
graduates for the demands of the industry. U.S. colleges and
universities provide between 50 to 70 percent of the supply of workers
for job demands. Engineering has the highest rate at which graduates
move into STEM occupations, the supply being 50 percent higher than
the demand. The problem is that the information technology industry,
the primary group that complains about technologically skilled labor
shortages, hires only 2/3 of each year’s graduates with a BA in
computer sciences. The second argument is students do not take
science and engineering classes as in the past. The evidence shows the
contrary. Today’s students are taking more science and math classes
than in the past. Not only are more students enrolling in these fields,
but also, students who change their major often switch to a STEM
discipline (Salzman 2013).
Additionally, the information technology industry’s claim that they
need foreign-born workers due to labor shortages in the sector is
unfounded in terms of the evidence, but founded in terms of their
needs. The IT companies that recruit H-1B workers do it mostly for
entry-level positions; 2/3 of foreign-born IT workers are under 30 years
old. These companies do not need these temporary workers in their
permanent U.S. workforce and do not sponsor them for residency. In a
study conducted by Salzman and Biswas, the authors found that an
important percent of foreign-born workers in IT companies are related
to offshoring IT work. An offshore project requires around a third of the
team to work in the U.S. to work with clients, do analysis, and maintain
relations with the offshore team (Salzman 2013).
Hira (2016), from the Economic Policy Institute, comes to the
same conclusions as Salzman and Biswas. The top ten H-1B employers
use the H-1B program to send American jobs offshore, such as Tata
Consultancy, Cognizant Tech, Infosys Limited, Wipro Limited, Accenture
LLP, and IBM Corporation. The top ten employers are offshore
outsourcing firmsa business model that emerged in the 2000s-which
sell information technology services: five of them have the headquarters
in India, four of them in the U.S., and one in Ireland. All of them have
large workforces in India and other low-cost countries. In 2014, the U.S.
granted these firms 25,277 new H-1B visas, out of the 85,000 annual
cap. Between 2005-2014, these companies hired 170,535 workers.
These are jobs that either were not offered to American workers or
directly replaced them, as occurred in the case of Tata, which replaced
workers at Northeast Utilities and Southern California Edison;
Cognizant replaced workers at Disney; and Wipro replaced workers at
Abbott Labs, to name a few cases (Hira 2016).
Another important consideration to take into account, implicit in
the discussion on labor shortages, is the role of firms (Kerr 2013).
Taking the H-1B visa as an example, since this is a sponsored visa, firms
first identify the foreign-born workers they want to hire. The firms then
apply to the U.S. government for visas, paying a fee. In recent years, the
final allocation of visas has been done following a lottery, because the
number of applicants is higher than the number of available visas. Once
the highly skilled immigrant is hired, the worker is then tied to the firm.
Firms can also apply for green cards on behalf of their workers, a
process that can take more than six years for some nationalities; during
this time, the worker continues to be tied to the firm. Given the
importance of firms in immigration law, it is important to analyze how
firms use visas for highly skilled immigration (Kerr et al. 2013).
The Kerr et al (2013) study employs the Longitudinal Employer-
Household Dynamics database. The study concludes that an increase in
young skilled immigrants raises the overall employment of highly
skilled immigrates in each firm, increases the immigrant share of these
workers, and reduces the older worker share of skilled employees. The
study finds that the expansion of young highly skilled immigrant
employment does not result in significant growth of employment for
older highly skilled workers. These estimates suggest that age is an
important dimension of firms’ decisions, and that there may be low
complementarity between young highly skilled immigrants and older
domestic workers. Going further on this point, Matloff (2003) criticizes
the specific displacement that is occurring within firms due to the
hiring of H-1B workers. Matloff says that although a 25-year-old Indian
H-1B programmer might be paid less than a 25 years old American
programmer, the real savings for the firm comes instead from
displacing a 50 years old American programmer whose salary has
grown through time (Matloff 2003).
A noteworthy argument that reflects on the discussion of labor
shortages is the necessity of considering the costs of concentrating
immigrants in particular sectors and occupations. What is good for IT
and financial firms, such as Goldman Sachs and Microsoft, may not be
good for the national interest. When jobs are unfilled, it is not only
related to the existence of labor or skill shortages, but is also related to
labor conditions and wages (Smith and Ruhs 2011). Those who advocate
for labor shortages argue the U.S. labor market will face a labor
shortage because the GDP (Gross Domestic Product) will not grow at
past rates (from 1980 to 2005, U.S. GDP grew at 3.1 percent annually,
with a 1.4 percent due to growth in labor supply and 1.7 percent due to
growth in labor productivity), and the growth of the labor force will
drop by half (0.7 percent per year). To maintain the 1.7 percent
increase in labor productivity from 2005 to 2030, the U.S. would need
30 million more workers than the labor supply projected by the Bureau
of Labor Statistics. However, though increasing labor supply through
immigration can increase the GDP, a massive labor supply would also
reduce GDP per capita and real wages. Thus, the problem of labor
shortages and its solution cannot be
dissociated from the issues of wages and labor conditions (Freeman
2006).
Those claiming shortfalls always win debates concerning labor
shortages, regardless of their empirical merit (Gary Freeman and David
Hill 2006). This is why Portes (2011) points out the need for an analysis
of the political economy of the permanent and temporary highly skilled
immigration programs. This is a system that is beneficial for employers,
who gain from extracting higher productivity from their workers in a
context of uncertain and unstable legality. For the author, this is why
the Chambers of Commerce and other economic organizations are
among the greatest supporters of change in the temporary immigration
programs rather than in the permanent immigration system.
Conclusion
In this chapter, I explained why visa policies constitute a pull
factor that explains why highly skilled immigration occurs. The
segmentation of legal statuses for highly skilled immigrants makes it
imperative to deconstruct the legal vs. illegal immigration dichotomy, to
focus on the extent to which visa policies affect highly skilled
immigration scope and rights, and also high-skilled immigrants’ legal,
work, and family trajectories in the U.S. society. Also, I examined the
debate over labor shortages, and why it constitutes one of the main
arguments U.S. companies use to demand an increase in visas for highly
skilled immigrants. Additionally, I explained how and why globalization
shapes the contradictory and distinctive policy processes and laws that
have shaped the complex process to attain legal permanent residency
for highly skilled immigrants in the past twenty-five years. Globalization
has driven the supply and demand of highly skilled immigrants, and the
complexification of migration channels and legal statuses for highly
skilled immigrants in the last twenty-five years. But global dynamics are
necessary but not sufficient to explain why there has been a growth in
the temporary immigration system vis-a-vis the permanent system.
Strong national dynamics embedded in the nation-state, issues
associated with domestic politics and the process of policy-making,
historically constituted models of immigration, all of which go beyond
the highly skilled immigration system, have a huge impact on the
success of reforms to this sector, or even the possibility of change to the
contours of the temporary and permanent highly skilled immigration
system.
References
Freeman, Gary and David Hill. “Disaggregating Immigration Policy: The
Politics of Skilled
Labor recruitment in the U.S.” in Smith, Peter and Adrian Favell eds.
The Human Facer of Global
Mobility: International Highly Skilled Migration in Europe, North
America, and the Asia-Pacific (Transaction Publishers 2006).
Freeman, Richard. “Labor Market Imbalances: Shortages, or Surpluses,
or Fish Stories,” Boston federal Reserve Economic Conference, June
2006.
Glick-Shiller, Nina, Linda Basch and Cristina Blanc-Szanton.
“Transnationalism: A New Analytic Framework for Understanding
Migration,” Annals New York Academy of Sciences July 1992.
Golash-Boza, Tanya. “Racialized and Gendered Mass Deportation and
the Crisis of Capitalism,” Journal of World System Research, Vol 22, N
1, 2016.
Golash-Boza, Tanya. Immigration Nation: Raids and Deportations in
Post-9/11 America (Paradigm Publishers 2012).
Hira, Ron. “Top 10 H-1B Employers Are All IT Offshore Outsourcing
Firms,” August 22, 2016. Economic Policy Institute Blog.
Jasso, Guillermina, Vivek Wadha, Gary Gereffi, Ben Rissing, and Richard
Freeman. “How Many Highly Skilled Foreign- Born are Waiting in Line
for U.S. Legal Permanent Residence?,” International Migration Review,
Volume 44 Number 2 (Summer 2010): 477–498.
Jasso, Guillermina, Douglas Massey, Mark Rosenzweig, and James
Smith. “From Illegal to Legal: Estimating Previuos Illegal Experience
among New Legal Immigrants to the United States,” International
Migration Review, Volume 42, Number 4 (Winter 2008): 803-843.
Kerr, William and William Lincoln. “The Supply Side of Innovation: H1B
Visa Reforms and the US Invention,” Working Paper No 09-005,
Harvard Business School, 2008.
Martin, Philip and Martin Ruhs. “Labor Shortages and US Immigration
Reform: Promises and
Perils of an Independent Comission,” International Migration Review
Volume 45, Number 1 (Spring 2001): 174-187.
Massey, Douglas and Nolan Malone. “Pathways to legal immigration,”
Population Research and Policy Review 21: 473-504, 2002.
Massey, Douglas. “Why Does Immigration Occur: A Theoretical
Synthesis.” In The Handbook of International Migration: The American
Experience. Kasinitz, De Wind, Hirschman eds. (Russell Sage
Foundation 1999).
Matloff, Norman. “On the Need for Reform of the H-1B Non-immigrant
Work Visa in Computer-Related Occupations.” University of Michigan
Journal of Law Reform 36.4 (2003): 815914.
Rissing, Ben and Emilio Castilla. “House of Green Cards: Statistical or
Preference-Based Inequality in the Employment of Foreign Nationals,”
American Sociological Review 2014, Vol. 79(6) 1226–1255.
Robertson, Roland. Globalization: Social Theory and Global Culture
(Sage Publications1992).
Salzman, Hal. “What Shortages? The Real Evidence about STEM
Workforce,” Issues in Science and Technology, Summer 2013.
Sassen, Saskia. Expulsions. Brutality and Complexity in the Global
Economy (Harvard University Press 2014).
Sassen, Saskia. A Sociology of Globalization (W. W. Norton & Company
2007).
Sasen, Saskia ed. Deciphering the Global. Its Scales, Spaces, and
Subjects (Routeledge 2007).
Sassen, Saskia. Territory, Authority, Rights: From Medieval to Global
Assemblages (Princeton University Press 2006).
Sassen, Saskia. The Mobility of Capital and Labor (Cambridge
University Press 1988).
Waldinger, Roger. The Cross-Border Connection (Harvard University
Press 2015).
Wimmer, Andreas and Nina Glick-Schiller. “Methodological nationalism
and beyond: nation– state building, migration and the social sciences,”
Global Networks Volume 2, Issue 4, October 2002: 301-334.
Chapter Three Rights of Highly Skilled Immigrants
Introduction
In this chapter, I explain the immigration mechanisms that were
implemented for highly skilled immigration in the past two decades in
order to fulfill the globalization needs that led to an increase in the
number of highly skilled immigrants to the U.S., in the penetration of
immigrants into certain occupations and industries that require
specialized knowledge, and in the number of international students.
Additionally, various industries, e.g. the information technology
industry, have increased the demand for highly skilled immigrants.
Furthermore, since the 1990s, immigration laws and policies have
become increasingly outdated and unable to manage the growing
number of highly skilled immigrant visas that U.S. companies have
requested. As a consequence, there has been a complexification of
migration channels and legal statuses, which gave rise to the growth of
the temporary program for highly skilled immigrants.
This chapter aims to explain the constraints in terms of size,
rights, and duration that the segmented system of permanent and
temporary visas imposes upon highly skilled immigrants. The argument
emerges in two parts. The first part analyzes the history of the growth
of temporary visas vis-à-vis permanent visas for highly skilled
immigrants, taking as its point of departure the Immigration and
Nationality Act of 1965 until Barack Obama’s presidency. In the second
part, I explain how the diversification of migration channels and legal
statuses created a stratified system of rights and legal statuses that not
only differentiates by national origin but also specific groups within the
same national and ethnic group. I focus the analysis on rights
embedded in labor programs for highly skilled immigrants and their
dependents: employment-based visas for permanent residency and the
temporary work visas H-1B, L-1, and the F1 (student visa) extension
called Optional Practical Training.
Since I am focusing on labor programs for highly skilled immigrants,
my analysis
excludes other categories, such as refugees or asylum seekers, the
diversity visa, and investors. These categories do not require the skills
(performing a task that requires specialized knowledge) and education
(at least bachelor degree or higher) used as the main criteria to define
who a highly skilled immigrant is. In the case of asylum seekers and
refugees, applicants have to demonstrate that their life is at risk by
virtue of belonging to a political, ethnic, or religious group regardless of
their skills and education. Applicants for diversity visas apply for a
lottery and are required to have high-school degree. The main criterion
for investors to apply for a visa is economic; they have to qualify based
on financial requirements set up by the government.
Complexification of Migration Channels and Legal Statuses for
Highly Skilled Immigration
The concept of super-diversity was coined by Vertovec (2007) to
describe the significant change in the patterns of global migration over
the last ten years in a selection of OECD countries. There has been not
only a diversification of immigrants’ origins but also of migration
channels and legal statuses, which has had a huge impact on the social,
economic, and political lives of migrants (Meissner and Vertovec 2015).
I find super-diversity a fertile concept to describe the complexification
of migration channels and legal statuses for highly skilled immigrants in
the U.S. The two most important trends in highly skilled immigration
since the 1990s were the growth of temporary immigration vis-à-vis
permanent immigration and an increase in the percentage of highly
skilled immigrants in the employment-based category that adjusted
their status when they became legal permanent residents (LPRs)
compared to new arrivals. Allow me to illustrate these two trends with
some statistics that will be analyzed in depth chapter 4 before focusing
on the development and changes to permanent and temporary highly
skilled immigration since the Immigration and Nationality Act of 1965.
The number of highly skilled immigrants that became LPRs in
categories 2 and 3 of the employment-based preference (for highly
skilled immigrants) was lower than the number of H1B temporary work
visas awarded from FY 2004 to FY 2014 (Figure 1). Thus,
employmentbased immigration of highly skilled workers during these
years was driven by temporary work
visas.
Figure 1: Highly Skilled Immigrants: Employment LPRs (EB-2 & EB-3)
& H-1B
Source: DHS Immigration Statistics
0
,000 50
100,000
150,000
200,000
250,000
300,000
350,000
2,004 2,005 2,006 ,007 2 2,008 2,009 2,010 ,011 2 2,012 2,013 2,014
EB- 2 ‐
EB- 3 ‐
H- 1B ‐
The number of LPRs that adjusted their status, that is, who were
already in the U.S. with a temporary visa when they applied for legal
permanent residency, is higher compared to new arrivals, as Figure 2
shows (between FY 2002 and FY 2014). This is the total number of LPRs
awarded. Unfortunately, although in the employment-based preference,
it is possible to get the number of LPRs awarded for highly skilled
immigrants, the family-based preference does not organize the
categories around labor skills, so the data provided do not discriminate
based on skill level or education.
Figure 2: Evolution of Total LPRs, New Arrivals and Status
Adjustment
FY 2002 to FY 2014
Source: DHS Immigration statistics.
The difference between the number of highly skilled immigrants
that adjusted their status compared to those who were new arrivals
when they were awarded LPR is even more pronounced when we focus
on employment-based preferences for highly skilled immigrants,
EB2 and EB3, and compare the number of LPRs that adjusted their
status and the number of LPRs that were new arrivals from FY 2004 to
FY 2014 (Figures 3 and 4). For the EB2 category around 90 percent of
beneficiaries adjusted their status and for EB3, between 73 and 82
percent.
Figure 3: EB2 Professionals with advanced degrees & aliens with exceptional
abilities
FY 2004 to FY 2014
Source: DHS Immigration Statistics
Figure 4: EB3 Skilled workers, professionals, and unskilled workers
FY 2004 to FY 2014
Source: DHS Immigration
Statistics
Total
0
,000 20
,000 40
,000 60
,000 80
2004
2005
2006 2007
2008 2009
2010
2011
2012
2013
2014
Total
New Arrival
Adjust Status
Total
0
,000 20
,000 40
60,000
80,000
100,000
120,000
140,000
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
Total
New Arrival
Adjust Status
History of Permanent and Temporary Visas since the Immigration
Act of 1965 until Barack Obama’s Presidency
I take as point of departure the Immigration and Nationality Act of
1965 to show the development and changes to permanent and
temporary visa policies for highly skilled immigrants until Barack
Obama’s presidency. Nation-states adopt different types of immigration
policies to attract international migration. Immigration policies can be
employerdriven or immigrant-driven. Immigrant-driven policies permit
the entry of immigrants following a points-based test, and employer-
driven policies require a sponsor and a job offer to permit the entry of
immigrants. Originally, a points-based system began in 1967 in Canada.
But Australia, New Zealand, Japan, and the U.K. also employ points-
based immigration systems. Points-based systems tend to allocate
points based on five criteria: current national demand for particular
skills; education level; previous earnings; age; and integration costs,
language, and previous work experience (Parsons, Rojon, Samanani,
and Wettach 2014).
In the United States, contradictory and distinctive policy
processes and laws that affect the dynamic of highly skilled immigrants’
global mobility shape highly skilled immigration.
Immigrants need sponsorship to migrate, from either a family member
or an employer. The Immigration and Nationality Act of 1965 cemented
the foundations of current permanent immigration laws. It reformed the
national quota system upon which immigrants were selected and
created seven preferences for admission. Four of the preferences were
for family reunification and three were for employment. As Martin
(2011) points out, one of the main changes introduced by the 1965
Immigration Act was the shift away from giving priority to highly skilled
immigration (from 50 percent of the quota visas in the previous 1952
law to 20 percent in 1965) to preference for family-based immigration
(from 50 percent to 74 percent). The system was heavily oriented
towards family reunification, with 74 percent of visas allocated based
on family relationships. Half of the 20 percent allocated on the basis of
employment were reserved for professionals, scientists, and artists with
exceptional ability. Additionally, to address labor union concerns, the
Department of Labor was given the responsibility for certifying that the
admission of foreign workers would not affect the working conditions
and wages of American workers, and that American workers must be
unavailable to work if foreign-workers were to be hired.
There were no significant reforms to permanent highly skilled
immigration after the 1965 Immigration Act. The 1986 Immigration
Reform and Control Act made no significant changes to legal permanent
admissions either. It was not until the 1990 Immigration Act, a reform
that valued family, skills, and humanitarian interests, that some changes
were introduced. The 1990 Immigration Act increased the allocation of
visas in the employmentbased category from 40,000 to 140,000 by year.
The permanent immigration system is currently divided between
family-based and employment-based visas. Family-based immigrant
visas are divided further into two groups. The first group has an
unlimited number of visas available and includes some immediate
relatives of U.S. citizens (spouse; unmarried child under 21 years old;
orphan adopted; parents). The second group includes other relatives of
U.S. citizens and relatives of legal permanent residents, for which a
limited number of visas are available.
The employment-based path for lawful permanent residency centers on
labor market
needs. The employer, before filling the application to hire an immigrant,
has to follow certain certification procedures required by the
Department of Labor7. The Department of Labor’s website says:
“Foreign labor certification programs permit U.S. employers to hire
foreign workers on a temporary or permanent basis to fill jobs essential
to the U.S. economy. Certification may be obtained in cases where it can
be demonstrated that there are insufficient qualified U.S.
workers available and willing to perform the work at wages that meet
or exceed the prevailing wage paid for that occupation in the area of
intended employment. Foreign labor certification programs are
designed to assure that the admission of foreign workers into the
United States on a permanent or temporary basis will not adversely
affect the job opportunities, wages, and working conditions of U.S.
workers.”
Every fiscal year the United States makes available 140,000
employment basedimmigrant visas. According to the information
provided on the webpage of the Department of Homeland Security,
employment-based visas are divided into five preferences – preferences
2 and 3 are the most typical visas used for highly skilled immigrants,
but also preference 1 for some special cases. Preference 1 is called
Priority workers. This group receives 28.6 percent of all the
employment-based visas available and do not require labor certification.
There are 3 sub-groups in this category: persons with extraordinary
ability in the sciences, arts, education, business, or athletics;
outstanding professors and researchers with at least three years
The family preference categories are: 1) Family First Preference: Unmarried sons
and daughters of U.S. citizens, and their minor children, if any (23,400); 2) Family
Second Preference: Spouses, minor children, and unmarried sons and daughters (age
21 and over) of LPRs. At least seventy-seven percent of all visas available for this
category will go to the spouses and children; the remainder is allocated to unmarried
sons and daughters (114,200); 3) Family Third Preference: Married sons and
daughters of U.S. citizens, and their spouses and minor children (23,400); 4) Family
Fourth Preference: Brothers and sisters of U.S. citizens, and their spouses and minor
children, provided the U.S. citizens are at least 21 years of age (65,000) (Department
of Homeland
Security).
7 There is an exception to sponsorship in the employment category. In the first
category, EB1, immigrants can self-sponsor their visa, and in the second category,
EB2, immigrants can request a National Interest Waiver (NIW). If the waiver is
granted, immigrant can self-sponsor the green card.
experience in teaching or research, who are recognized internationally;
and multinational managers or executives who have been employed for
at least one of the three preceding years by the overseas affiliate,
parent, subsidiary, or branch of the U.S. employer. Preference two is
titled Professionals Holding Advanced Degrees and Persons of
Exceptional Ability; this group receives 28.6 percent of the yearly
worldwide quota of employment-based immigrant visas, plus any
unused visas from the first preference category. There are two
subgroups within this category: first, professionals holding an advanced
degree (beyond a baccalaureate degree), or a baccalaureate degree and
at least five years progressive experience in the profession; second,
persons with exceptional ability in the sciences, arts, or business.
Exceptional ability means having a degree of expertise significantly
above that ordinarily encountered in the sciences, arts, or business. The
third preference is called Skilled Workers, Professionals, and Unskilled
Workers (Other Workers); this group receives 28.6 percent of the yearly
worldwide allotment of employment-based immigrant visas, plus any
unused visas from first and second preference categories. The fourth
preference for employment-based category is called Certain Special
Immigrants; this group receives 7.1 percent of the yearly worldwide
limit of employmentbased immigrant visas. The fifth preference is
referred to as Immigrant Investors or entrepreneurs.10
The interconnection between permanent and temporary visas for
highly skilled immigrants was not a major issue during the discussion of
the 1965 Immigration Act. The globalization of American companies at
that time was not comparable to today, and also, in the middle of the
1960s temporary labor still meant unskilled immigration. The 1965
Immigration Act did very little regarding the interconnection between
student visas and labor temporary and permanent highly skilled visas.
Yet, as I mentioned before, the 1965 Immigration Act introduced and
changed labor certification from a passive to an active program, due to
labor unions’ concerns (Keely 1999). Since the permanent immigration
system could not keep up with the demand for foreign science,
information technology, and engineering professionals, industries
employing highly skilled immigrants have benefited from the growth of
the temporary visa program since the 1990s (Martin 2011).
During the 1990s, there was a complexification of migration
channels and legal statuses for highly skilled immigrants. Since the
immigration system to attain legal permanent residency through
employment and family reunification became increasingly outdated and
unable to meet the demand of highly skilled immigrants from U.S.
companies, the H-1B temporary visa was created, giving rise to a
segmented system of temporary and permanent visas for highly skilled
immigrants that include H-1B, L-1, O1, and F1 visa Optional Practical
Training. These are the typical temporary labor programs for highly
skilled immigrants. Another visa that
enterprises in the United States which provide job creation. There are not credential
qualifications required for this visa. To qualify as an immigrant investor, a foreign
national must invest, without borrowing, the following minimum qualifying capital
dollar amounts in a qualifying commercial enterprise: $1,000,000 (U.S.); or $500,000
(U.S.) in a high-unemployment or rural area, considered a targeted employment area.
A qualifying investment must, within two years, create full-time jobs for at least 10
U.S. citizens, lawful permanent residents, or other immigrants authorized to work in
the United States, not including the investor and the investor’s spouse, sons, or
daughters (Department of Homeland Security).
highly skilled immigrants can apply for is the preference EB1, for
people with extraordinary abilities in the arts, culture, and science;
immigrants self-sponsor their applications for legal permanent
residency in this category.
The growth of temporary highly skilled immigration constitutes
the second important change in immigration trend in the U.S. in the last
twenty-five years. Foreign scientists, engineers, and health care
workers enter the country under select temporary non-immigrant visas.
The Immigration Act of 1990 divided the H1 program for workers of
distinguished merit and ability, which was created under the
Immigration and Nationality Act of 1952. It divided the H1 visa in two:
H-1A for registered nurses and H-1B for immigrants working in the
Department of Defense, fashion models, and specialty occupations. The
first two categories, department of Defense and fashion models, never
comprised a noteworthy number of immigrants. The third category,
specialty occupations, encompasses occupations that require
theoretical and practical application of highly specialized knowledge,
and a bachelor’s degree as a minimum educational requirement (Park
and Park 2005).
The H-1B visa has a cap of 65,000 visas per year, plus an
additional 20,000 visas for graduates with advanced degrees from U.S.
universities, which were added in 2004. After its three-year term, the H-
1B visa can be renewed once for three more years. Additionally,
immigrants holding an H-1B visa can apply for legal permanent
residency because the H-1B is considered a dual-intent visa. Thus, after
six years, it is possible to remain legally in the country with the H-1B
visa while the employer files the petition for a green card, and during
the time needed for green card approval. As illustrated in the prior
chapter, it is worth noting at this point that for some nationalities and
employment preferences the waiting lists and visa backlogs can last for
years.
Due to strong lobbying from the information technology industry,
in 1998, under the Clinton presidency, the American Competitiveness
and Workforce Improvement Act was signed, which increased the
number of H-1B visas to 115,000 in FY 1999, 107,500 in FY 2000,
107,500 in FY 2001, after which the number of visas would come back
to 65,000. In 2000, the Senate passed the American Competitiveness in
the 21st Century Act “expanding the number of visas to 195,000 for
2001, 2002, and 2003; offering non-quota H-1B visas for universities
and non-profit employees as well as advanced degree graduates from
U.S. universities; and the bill makes two changes designed to make long
visa backlogs less onerous: allowing immigrants to extend their
temporary visas indefinitely once they have filled for LPR status, and
allowing
H-1B holders to change jobs while an adjustment petition is pending”
(Rosenblum 2001: 394). The H-1B Visa Reform Act of 2004 returned the
cap to 65,000 and set up 20,000 visas for applicants with U.S.
postgraduate degrees. Also, exemptions for non-profit research and
government agencies were included. The reform expanded the
authority of the Department of Labor over the hiring process.
Some sectors are exempted from the 65,000 visa cap. That is why
in some years there is a disparity between the H-1B cap and the
number of visas approved. The H-1B cap exemption
was created to ensure the supply of highly skilled immigrants in some
labor sectors. These sectors are: not for profit institutions of higher
education (colleges and universities); not for profit entities related to or
affiliated with an institution of higher education (e.g. research labs or
medical hospitals affiliated with colleges and universities); not for profit
research organizations or governmental research organizations; certain
for-profit (e.g. consulting/contracting) firms.
Lowell, Kuehn, and Salzman (2013) point out that in FY 2011, a
total of 192,990 H-1B petitions were approved, of which 76,627 were
for initial employment and the remaining for renewal; 51,570 or 49% of
the initial H-1B employment visas were identified by the
Department of Homeland Security as “computer-related fields.”
According to the authors, “the flow of guest workers has been
substantial and targeted to one specific segment of the overall STEM
labor market, namely IT occupations and industries. There are multiples
routes into the IT labor market provided by highly skilled immigration
policy, from work permits to student visas to a range of nonimmigrant
work visas, but these multiple routes of entry for highly skilled guest
workers are not adequately tracked in immigration or labor force
statistics (…) Since the early 2000s, the IT industry appears to be
functioning with two distinct market patterns: a domestic supply (of
workers and students) that responds to wage signals and other aspects
of working conditions such as future career prospects, and a guest
worker supply that appears to be abundantly available even in times of
relatively weak demand and even when wages decline or are stagnant”
(Lowell, Kuehn, and Salzman 2013: 26).
The L-1 visa was introduced in 1970 as a “noncontroversial
amendment,” to satisfy the needs of multinational companies to engage
in management trainee programs, management internationalization,
and the opening of new markets (Keely 1999). The L-1 visa is suitable
for five years for highly skilled immigrants with specialized knowledge,
and seven years for executives or managers. The 1990 Immigration Act
eased the path to converting their temporary status into permanent
residency and also allowed spouses of L-1 holders (under the L-2 visa)
to work. When the demand for H-1B temporary visas increased,
companies began to use L-1 visas to recruit highly skilled immigrants.
As such, the number of L-1 visas increased 50 percent from 1998 to
2000.
The number of L-1 visas increased in the last 25 years: the U.S.
Department of State issued only 26,535 L-1 visas in FY 1980. L-1 visa
issuances began increasing in the mid-1990s and peaked at 122,981 in
FY 2005 (Wasem 2006). The DHS Office of the Inspector General found
that “though the L-1 visa program is not specifically tailored for the
computer or information technology industries, the positions L-1
applicants are filling are most often related to computers and IT. From
1999 to 2004, nine of the ten firms that petitioned for the most L-1
workers were computer and IT related outsourcing service firms that
specialize in labor from India.” Typically, more than half the L visas
issued in any given year are L-1 visas granted to individuals qualifying
as intracompany transfers, and the rest are immediate family coming on
L-2 visas. In 2001, there were nearly as many L-1 (329,000) visa holders
as H-1B (384,000). Of the 122,981 L visas issued in FY 2005, a total of
65,458 are L-1 visas for the qualifying (principal) nonimmigrant. There
were 66,700 L-1 visas issued in FY 2013 (Wasem 2006).
The F1 visa for international students was created under the
Immigration and Nationality Act of 1952. This is the most common visa
for international students. It represented 78 percent of international
students visas in 2012. This visa allows international students to work
only on campus. It is possible to work off campus sunder the Curricular
Practical Training program only when the work performed complements
and enhances students’ studies. The Optional Practical Training
program is an option that international students under F1 visas have to
work full time immediately after they graduate. There is no change of
visa from student to work visa. The duration is up to 12 months, except
for STEM graduates for whom the duration is up to 29 months
(President George W. Bush extended the duration for STEM graduates
in 2008). President Obama’s executive action (October 2015) extended
the number of months for STEM graduates to 36 months, which was
issued by the Department of Homeland Security in March 2016. The
OPT extensions during George W. Bush and Barack Obama’s presidency
have no authorization by law. Except in 1990 and for a pilot program,
Congress did not intervene in the authorization of foreign students to
work after graduation for 12, 29, or 36 months (Hira 2016).
Since the F1 student visa is not a dual-intent visa, as the H1-B and
L-1 visas are, there is not a direct path to permanent residency. That is
why international students who work after they graduate go through
different temporary visas (e.g. OPT or H-1B) until they are able to apply
for permanent residency (Ruiz 2014). The number of foreign students
grew from a low 123,000 in 2001 to 550,000 in 2012. During the more
recent 2008 to 2012 period, there were 535,000 F-1 visa approvals for
students pursuing a bachelor’s degree, 480,000 F-1 visa students
pursuing a master’s degree, and 135,000 pursuing doctoral degrees. As
of November 2013, there were an estimated 100,000 F-1 students using
the OPT program (Ruiz 2014).
Many countries have followed the U.S. F1 Optional Practical Training
program. In
1999, Australia made it easier for foreigners with local degrees to apply
for residence through the skill-point system. In 2006, Canada banned
the restriction on off-campus work for foreign graduate students, and in
2005 made it possible for students to stay up to two years after
graduation. In 2007 the UK expanded the one-year optional work
program for graduates from sciences and engineering fields to all BA
and graduate recipients. In 2007, France introduced the “new
professional experience option,” which allows foreign students on a
diploma track to stay with a visa of six months to search for
employment. Germany announced in 2007 that foreign students who
finished their degree in Germany would be eligible for a three year
work permit after they received an offer of employment (Kirkegaard
2007).
During the Obama administration there was a proposal to
implement a comprehensive immigration reform, which was approved
in the United States Senate in 2013 (S.744), but the proposal did not
pass in the House of Representatives. It was introduced by D-NY
Senator Charles Schumer and formulated by a bipartisan commission
composed of Democratic and Republican senators. The Senate proposal
recommended the following changes for highly skilled immigration in
the employment-based permanent system: introduction of a merit visa,
a sort of a skill-point system based on education, length of residence,
employment, etc.; some caps exemptions including immigrants holding
a Ph.D. or the foreign equivalent, STEM immigrants with an M.A. or
higher and a job offer, and certain physicians; and exemptions for
spouses and children from the 140,000 cap for all preferences.
The Senate proposal also recommended changes to temporary labor
programs, visas H-
1B and L-1. It sought to increase the number of H-1B visas from 65,000
to 115,000, and from
20,000 to 25,000 for U.S. university graduates. The bill intended to
increase wage requirements for H-1B visa holders and mandate that
companies advertise for American workers first. It also proposed to
allow spouses and children to accompany H-1B workers without
counting against the cap, and to allow spouses to work. And lastly, it
proposed that employers with more than 50 percent of workers under
H-1B and L-1 visas would not be able to apply for further visas.
Since this comprehensive immigration reform did not pass the House
of
Representatives, President Obama issued an executive order in October
2014 trying to remedy the most urgent problems in the immigration
system. He introduced some changes for highly skilled immigration in
three main areas: the right for H-1B spouses (under H4 visa) to work
while green card applications are pending; an extension of Optional
Practical Training for STEM graduates to 36 months; and labor
regulations for L-1 workers to protect American workers. In March
2016, the Department of Homeland Security extended the Optional
Practical Training program to 36 months for graduates from U.S.
universities in STEM fields.
Taking into account the comprehensive immigration reform
proposal under the Obama administration and his subsequent executive
order, the trend for highly skilled immigration seems to confirm that the
changes proposed reproduce what is already in place. There were
attempts to augment the number of highly skilled immigrants without
altering the fundamental categories of immigration law. One important
exception was the introduction of a new merit visa, which would award
points to prospective immigrants based on education, employment,
length of residence, and other considerations.
The introduction of a skills-based point system would have seen the U.S.
adopt policies
for highly skilled immigrants similar to those of other industrialized
nations, such as Australia, Canada, New Zealand, and United Kingdom,
which continue with skills oriented policies. It is worth mentioning here
the U.K. as an example of a country that implemented a skills-based
point system. In 2008, the U.K. moved from an immigration system that
offered more than 80 points of entry to a skills-based system with five
tiers. The first tier is for highly skilled workers without a job offer. They
do not have problems integrating into the British labor market based on
British work experience, previous earnings, and education. The second
tier is for highly skilled workers with a job offer. There are three
avenues for employment: to fill jobs with labor shortages, employers do
not need to publicize job offers on the labor market; for highly skilled
workers, after the employers have publicized the job and did not find
any native worker to fill it, the highly skilled worker still needs
substantial points based on education and wage offered; and finally,
intracompany transfers. The third tier is for unskilled workers and is
closed, while the fourth tier is for foreign students. The fifth tier
addresses other temporary workers such as working holiday makers
(Smith and Ruhs 2011).
The skills-based point system was implemented in these
industrialized nations to prioritize some skills, occupations, and
industries that were identified as key for the economy, but also to
discriminate against unskilled immigrants, because they have more
difficulties completing the minimum number of points required because
of their low level of education. One of the critiques of this program
points out the higher rate of immigrant unemployment in the countries
that have adopted a skills-based point system compared to those
countries with programs based on employment (or family) sponsorship
(Sumption 2016). However, in the context of U.S. immigration policy, the
introduction of the merit visa would have signified an improvement in
visa policies for highly skilled immigrants, because it would have
constituted another option and not a replacement of the sponsorship-
based temporary and permanent program. Yet, as mentioned in chapter
2, when a comprehensive immigration reform is discussed in Congress,
the fate of the changes to highly skilled immigration is tied to the
approval as the entire comprehensive immigration reform proposal,
principally because the permanent immigration program is less flexible
to change than the temporary program and more subject to strong
lobbies from different actors, such as the family lobby, labor unions, and
zero sum bipartisan politics.
Rights of Highly Skilled Immigrants from a Normative and Positive
Standpoint
In this section, I frame the discussion between temporary vis-à-vis
permanent immigration in terms of rights in a fashion that is both
normative and positive. Why is it more beneficial for a country-and for
immigrants-to accept immigrants with permanent instead of temporary
status? What are the constraints that a segmented system of permanent
and temporary visas imposes upon highly skilled immigrants’ global
mobility? What is the impact that the fragmentation of migration
channels and legal statuses has on the rights of high-skilled
immigrants? The answer to these questions, from a normative point of
view, rests on the following three core ideas: firstly, universal rights-
based theories oppose policies that distinguish between the rights and
entitlements of different categories of residents (citizens, temporary
residents, and permanent residents). Secondly, a democratic society
should provide its members with equal terms of membership and rights.
And thirdly, temporary programs are exploitative for immigrants.
Exploitation is understood both from a normative point of view, since it
violates egalitarianism, and from a neoclassical point of view since it
violates economic
rights (Ruhs 2013).
Joseph Carens (2013) illustrates the normative point of view when
he points out that the lesson from guest worker programs in Europe in
the middle of the twentieth century is that a country that embraces
democratic principles cannot keep immigrants in temporary status for
long periods of time. This is precisely what happens, Carens argues, in
places like Kuwait or Singapore, which are not committed to democratic
principles. The admission of immigrant workers with temporary status
is acceptable only when it is for a short and limited period of time.
Carens asks, when do workers admitted with temporary status achieve
the moral right to permanently remain in the country? Though he does
not give any specific period of time, it is a crucial question that any
democratic nation-state must ask and answer because the restriction of
immigrants’ rights is an argument that not only conservative anti-
immigrant voices defend, but also more progressive ones. For example,
Milanovic (2016) argues in his recent book that in order to reduce
global inequality, it is advisable to restrict immigrant rights.
Arguing from a positive point of view, Susan Martin (2011) draws
upon the distinction presented by Lawrence Fuchs (1990) between
different models of immigration based on the colony in which
immigrants settled: Massachusetts (sought members who were
religiously pure), Virginia (sought cheap workers without full
membership), and Pennsylvania (sought good citizens regardless of
their religious backgrounds). The author analyzes the evolution of these
models throughout U.S. history. As examples of how these models have
been expressed in immigration policies and debates, Martin cites the
importation of Chinese labor followed by the Chinese Exclusion Act of
1882, the Bracero program (1944-1964), and the restriction of the
immigrants’ rights (public welfare benefits and due process of law) all
reflected the Virginia model of immigration, while the Americanization
movements of the early nineteenth century and the Immigration Act of
1965 represented the Pennsylvania model of immigration. Exclusions
based on ideological beliefs, along with affirmative action policies to
admit refugees from Communist countries, resembled the
Massachusetts model of immigration based on religious conformity.
The expansion of the temporary workers program for highly
skilled immigration, specifically the H-1B visa, since the 1990s has,
instead of fixing the permanent immigration system to answer the
demand for foreign science, information technology, and engineering
professionals, constituted a resurrection of the Virginia immigration
model (workers without full membership). Admitting legal immigrants
as permanent residents is preferable to admitting them through
temporary worker programs because temporary workers have neither
full membership in U.S. society, nor full rights. Also, for Martin, when
immigrants know they can permanently remain in the country, it is more
likely they will buy homes, learn the language, become involved in civic
activities, invest in business, and, thus, their integration benefits U.S.
society (Martin 2011).
The analysis of labor migration policies should be done on three
levels: the number of immigrants admitted; the method of selection of
immigrants; and the rights of immigrants after admission (Ruhs 2013).
It is important to include the rights of immigrants as an inherent part of
immigration policies, because the rights of immigrants constitute a
fundamental aspect of how nation-states regulate labor migration. How
nation-states regulate the admission of immigrants and the rights of
immigrants cannot be analyzed separately from each other, since
inevitably, immigrant policies that regulate the admission of immigrants
are related to the rights granted to immigrants after admission (Ruhs
2013). To give an example of which rights to take into account to
measure the opening of labor programs, Ruhs (2013) created an index
composed of a mixture of different types of rights, including five civil
and political rights, five economic rights, five social rights, five
residency rights, and three rights related to family reunion:
1) Civil and Political Rights: the right to vote and right to stand for
elections in local and/or regional elections; right to form trade
unions; right to equal treatment and protection before criminal
courts and tribunal; and the right not to have one’s identity
confiscated by anyone other than a public official authorized by
law.
2) Economic Rights: the right to free choice of employment; right to
join a trade union; right to equal pay as local workers doing the
same job; right to equal employment and conditions; and right to
redress if employer has violated the terms of the contract.
3) Social Rights: rights to equality of access to unemployment
benefits; public retirement pension schemes; public educational
institutions and services; public housing including social housing
schemes; and public health services.
4) Residency Rights: temporary residence without possibility of
permanent residency; temporary residency with possibility of
permanent residency; permanent residency; how criminal and
administrative convictions affect residency status; how legal
residency is affected by loss of employment; and access to
citizenship.
5) Family Rights: whether immigrants have the right to family
reunion; how extensive the right is in terms of definition of
relative qualifying as family/dependents; and limits on the
spouse’s right to work in the host country.
In the next section, I concentrate on labor programs for highly
skilled immigrants and their dependents: employment-based visas for
permanent residency and the temporary work visas H-1B, L-1, and the
F1 (student visa) extension to work Optional Practical Training to
analyze which rights are granted to highly skilled immigrants under
each legal status.
Rights of Highly Skilled Immigrants under Permanent and
Temporary Labor Programs
In its classical essay, T.H. Marshall (1950) points out citizenship
developed in England through the achievement of a series of rights:
first civil rights, then political rights, and finally social rights. With long-
term settlement, permanent residents are entitled to the same
economic, social, and civic rights as citizens and are subject to the
same legal duties. Permanent residency does not refer strictly to the
right of residence but entails a series of rights that tend to give
permanent residents membership in the nation-state equal to the status
of citizens. Though democratic states have increasingly blurred the
boundary that distinguishes citizens from immigrants – or permanent
residents-, nonetheless, nation-states have the monopoly of the means
of movement; they have the right to authorize and regulate movement
(Torpey 1999). Thus permanent residents do not have political rights.
As Hammar (1990) pointed out, permanent residents are denizens.
Once highly skilled immigrants achieve legal permanent residency,
they are able to apply for citizenship. LPRs are restricted in their
movement: they cannot travel for extended periods of time or live in
another country without jeopardizing their permanent residency. Since
the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA) passed in 1996, in cases of aggravated felonies, human
trafficking, domestic violence, document or marriage fraud LPRs can be
deported. There is also a limitation, since 1996, on LPRs receiving
welfare benefits. They have to complete five years of permanent
residency before applying for
Medicaid, food stamps, Supplemental Security Income, and the State
Children’s Health
Insurance Program. The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 also reduced food stamp allotments for
mixed-status households, thus increasing food insecurity for U.S-citizen
children living in mixed-status families (Academy of Arts and Sciences
Report 2016).
The rights of highly skilled immigrants under temporary legal
statuses differ from the rights granted under permanent legal status.
Since the H1-B is a temporary visa, there are no political rights
attached to it; immigrants do have the right to equal employment and
conditions, public retirement pensions schemes, public educational
institutions, and services. In terms of economic rights, H-1B holders do
not have the right to free choice of employment because they are tied to
their employer through sponsorship, and they do not have access to
unemployment benefits. The attachment to the employer for H-1B visa
holders has detrimental consequences. Vivek Wadhwa points out (2012)
“the restrictions on H-1B visa holders have a number of deleterious
effects. Once H-1Bs have started the process of filing for a green card,
they cannot change employers or even take a new job with the current
employer without getting pushed to the back of the queue (…) if a
foreign worker with H-1B status resigns or is fired from the sponsoring
company, the worker needs to find anther employer or leave the US
immediately. There is no grace period. If an H-1B holder wants to
switch jobs, then the new employer must file for an H-1B visa even
before he or she leaves the job” (pp:
49-50).
Regarding immigrants’ right to the same pay as local workers
doing the same job, due to the restrictions immigration laws impose on
employers in order to preserve equitable wages, highly skilled
immigrants under the H-1B visa do not earn substantially less than
natives or those in core jobs (Luthra 2009). However, Luthra (2009)
accurately points out that the disadvantages highly skilled immigrants
experience under the H-1B visa constitute a visa disadvantage, not an
immigrant disadvantage. The reasons why it is a visa advantage are that
“first, recently arrived immigrants (H-1B) are matched with peripheral
jobs. Second, the analysis of contingent (temporary) work amongst
immigrants revealed that the greater likelihood of contingent
employment disappears after transferring to permanent residency” (p.
246). They are cheaper because they are more flexible and receive
fewer fringe benefits, and because they are tied to the employer
through visa sponsorship (Luthra 2009).
Highly skilled immigrants under H-1B fall under the dual intent
clause, which grants visa holders the possibility to apply for permanent
residency, but there is not direct access to citizenship from the H-1B
visa, and the years under this temporary visa do not count toward
citizenship under the permanent resident status (rights of residency).
H-1B visa holders are able to sponsor a spouse and children as
dependents, who have the right to education but do not have the right
to work (rights of family reunion).
The L-1 visa is much more unregulated than the H-1B visa. There
are no protections for American workers and foreign workers. There is
no a cap on the number of L-1 visas awarded annually. There is no
mobility between employers for L- holders, and employers do not have
to certify that there are not American workers available for these jobs.
Also, employers do not have to pay foreign workers at least the average
income for the job (the prevailing wage for H visas). Additionally, there
is no federal agency in charge of either controlling employers who hire
L-1 immigrants or enforcing any regulations. Furthermore, free trade
agreements impose limitations on the rights of L-1 temporary workers
(Costa 2016; Hira 2016). The U.S.-Singapore Free Trade Agreement
stipulates that the U.S. will not require labor certification to hire highly
skilled workers under L-1 visa and will not establish caps on
intracompany transferees from Singapore. Similar limitations are
established in the U.S.-Chile Free Trade Agreement. The North
American Free Trade Agreement (NAFTA) established rules regarding
intracompany transferees similar to those in the Chile and Singapore
FTAs. NAFTA requires that Canada, Mexico, and the United States not
to impose caps on the number of intracompany transfers or labor
certifications as a condition for intracompany visas to be granted. These
intracompany immigrants must have worked one year out of the past
three years for the same company, in a foreign country, in order to be
transferred to the U.S. Because of these trade agreements, the L-1 visa
is a visa over which U.S. legal control is more limited than the H-1B
visa. On the one hand, companies have more freedom of action, but on
the other hand, the rights granted to L-1 holders are restricted since
they are not protected by U.S. labor regulations. Given the issues being
raised about the L-1 visa, some are concerned that these trade
agreements constrain Congress as it considers revisions of immigration
law and policy on the L-1 visa. L-1 visa holders can apply for permanent
residency (residency rights) and also holders’ dependents have the
right to work (family rights).
The extension of the Optional Practical Training duration for
STEM graduates is beneficial for employers who are not able to secure an
H-1B visa through the cap lottery. Employers are required to implement
Mentoring and Training Programs for students under the OPT training
program. Employers must first verify that they have enough resources
for the implementation of mentoring programs; that they will not lay off on a
temporary or permanent basis any U.S. worker to hire a graduate under
the OPT program; and that the job offered satisfies graduates’ goals and
training. Also, the duties and compensation for F-1 graduates working
under OPT program should be similar to other U.S. workers and graduates;
under the OPT program, graduates work at least 20 hours per week. This
is an option that has been criticized, because highly skilled immigrants’
rights are pretty limited. There are no wage values employers have to
follow, thus employers undercut locally prevailing wages for jobs in
STEM fields. Employers do not have to publicize job searches and do not
have to claim labor shortages as a reason for hiring foreign workers (Costa
2015). Also, highly skilled workers using the STEM OPT program are
cheaper for employers because they do not have the obligation to pay
federal payroll taxes (Hira 2016). Additionally, highly skilled immigrants
who spend one year or three years working with the F1 visa and the OPT
option, have a high probability that they will have a work temporary H-1B
visa instead of an employment-based green card when the OPT period
ends, and they either continue in the same job or find another one. This
is so because unlike the H-1B visa, which is considered a dual-intent visa,
that is, it is assumed that the immigrant can apply for legal permanent
residency when the H-1B visa expires, the F1 student visa is a single-intent
visa.
Thus, there is no direct path for applying to legal permanent residency.
The analysis of the rights granted to permanent and temporary
highly skilled immigration leads to the following conclusion. Permanent
immigration tends to the inclusion of immigrants. The achievement of
citizenship is an option permanent immigrants have and there is not
any restriction preventing them from achieving full membership in
society. Thus I describe permanent immigration, as pertains to
membership to democratic societies, as belonging with inclusion. This is
a type of membership that values legality, time, autonomy, and
certainty. The growth of temporary migration entails a reconsideration
of immigrants’ belonging to democratic nation-states, because it
reformulates the notion and the value of time in immigration. The
institutionalization of temporary immigration implies a new political
economy of immigrant time in which immigrant time is devalued (Cohen
2015). Immigrants under temporary labor programs work, raise
children, buy homes, pay taxes, and get credentials; but they do so
under conditions and a type of membership that restrict their rights and
a legal status that creates uncertainty and vulnerability. Furthermore,
the time spent in the U.S. does not count toward nor make them qualify
for permanent residency or naturalization. I define temporary
immigration, in terms of membership to democratic societies, belonging
with partial inclusion. Temporary immigrants belong to their society in
many ways, but belonging does not imply the achievement of
substantive rights, benefits, and an inclusive path to full membership.
Conclusion
At the outset of the chapter, the concept superdiversity (2007) was
introduced to describe the significant change in the patterns of global
migration over the last ten years in a selection of OECD countries. Not
only has there been a diversification of immigrants’ origins but also a
diversification of migration channels, which has had a huge impact on
the social, economic, and political lives of migrants. In the U.S.
specifically, the fragmentation of legal statuses for highly skilled
immigrants entailed a differentiation of rights and controls for
immigrants as well as changes in the scope and duration of
immigration, depending on which immigration track highly skilled
immigrants follow.
The diversification of migration channels engendered a stratified
system of rights and legal statuses that differentiate by national origin
but also within groups from the same national and ethnic origin. This
last point is very important. As I will explain in chapter 4, in the
permanent immigration system, either family-based or employment-
based, some countries experience long waiting lines and visa backlogs.
This has different effects for different countries but also regions of the
world. In the temporary labor program, some countries (India, China,
Mexico, and the Philippines) are more adversely affected than others,
as well as some regions of the world. However, the fragmented system
of permanent and temporary migration channels also affects highly
skilled immigrants differently, even those from the same national or
ethnic origin. Because even among specific nationalities, the legal path
and rights attached to it vary depending on whether the highly skilled
immigrant applies for the first time or adjusts their status, on the
availability of visas in different occupations or industries, and on their
field of study.
The aim of this chapter also was to explain why, from a normative
and positive standpoint, it is more beneficial for the destination country
and for highly skilled immigrants themselves to have permanent
residency status instead of temporary status by analyzing the rights
that each legal path grants to highly skilled immigrants. I refer to
membership in democratic nation-states under permanent migration
status as belonging with inclusion. This is a membership that values a
legality based on certainty, autonomy, and rights. There is no significant
differentiation when citizens and permanent residents are compared,
with some exceptions, such as political rights, work in civil service, or
the possibility of deportation. The growth of temporary immigration in
the last twenty-five years challenged this trend in democratic societies,
because immigrants’ membership was put into question. Temporary
immigration involves membership in democratic societies as belonging
with partial inclusion. This is a membership that values a legality based
on uncertainty and vulnerability. The rise of temporary programs entails
a new political economy of immigrant time (Cohen 2015). Not only is
the time spent under temporary programs undefined, but also, no
matter how much time highly skilled immigrants spend under
temporary programs, this time counts for neither permanent residency
nor naturalization. This trend can be historically traced to the
immigration models of the original American colonies. Pennsylvania
established an immigration model that sought full membership of
immigrants, while Virginia an immigration model that sought labor
immigrants without membership (Martin 2012).
The system of permanent and temporary visas imposes constraints
upon highly skilled
immigrants’ global mobility. It impacts the rights, scope, direction, and
composition of highly skilled immigration. Furthermore, immigration
has become a multi-step process: highly skilled immigrants first have
temporary legal status, or no legal status, and in subsequent stages
they move toward legal permanent residency. As I described for the
temporary work visas H-1B, L1, and F1 OPT, given the way in which
temporary employment programs are organized in the U.S., immigrants’
economic, social, residence, and political rights are restricted.
Residence rights and economic rights are the most affected: immigrants
are exposed to long periods of time under temporary status, and they
do not have the right to choose an employer because they are attached
to their employer/sponsor. As a consequence, immigrants’ civic and
economic integration are affected.
References
Carens, Joseph. The Ethics of Immigration (Oxford University Press
2013).
Cohen, Elizabeth F. “The Political Economy of Immigrant Time: Rights,
Citizenship, and Temporariness in Post-1965 Era,” Polity Volume 47,
Number 3, July 2015.
Costa, Daniel. “Melania Trump visa issues highlight lack of regulation
and enforcement in temporary visa programs,” Economy Policy Institute
blog, August 2016.
Freeman, Gary and David Hill. “Disaggregating Immigration Policy: The
Politics of Skilled
Labor recruitment in the U.S.” in Smith, Peter and Adrian Favell eds.
The Human Facer of Global
Mobility: International Highly Skilled Migration in Europe, North
America, and the Asia-Pacific (Transaction Publishers 2006).
Freeman, Richard. “Labor Market Imbalances: Shortages, or Surpluses,
or Fish Stories,” Boston federal Reserve Economic Conference, June
2006.
Hammar, Tomas. Democracy and the Nation State. Aliens, Citizens, and
Denizens in a World of International Migration (Avebury 1990).
Hira, Ron. “Top 10 H-1B Employers Are All IT Offshore Outsourcing
Firms,” August 22, 2016. Economic Policy Institute Blog.
Keely, Charles. “Nonimmigrant Visa Policy of the United States,” U.S.
Commission on Immigration Reform, 1996.
Lowell, B. Lindsay. “Immigration and the Science & Engineering
Workforce: Failing Pipelines,
Restrictive Visas, and the “Best and Brightest,” presented to the House
of Representatives Committee on the Judiciary Subcommittee on
Immigration Policy and Enforcement, October 2011.
Lowell, B. Lindsay. “Skilled temporary and permanent immigrants in the
United States,” Population Research and Policy Review 20: 33-58, 2001.
Lowell, B. Lindsay. “H-1B Temporary Workers: Estimating the
Population.” Working Paper No 12, May 2000. The Center for
Comparative Immigration Studies, University of California, San Diego.
Lowell, B. Lindsay. Foreign Temporary Workers in America (Quorum
Books 1999).
Lowell, B. Lindsay. “Temporary Visas for Work, Study, and Cultural
Exchange: Introduction and Summary,” U.S. Commission on
Immigration Reform, 1996.
Marshall, T. H. Citizenship and Social Class, and Other Essays
(Cambridge University Press 1950).
Martin, Philip and Martin Ruhs. “Labor Shortages and US Immigration
Reform: Promises and
Perils of an Independent Comission,” International Migration Review
Volume 45, Number 1 (Spring 2011): 174-187.
Martin, Susan. A Nation of Immigrants (Cambridge University Press
2011).
Meissner, Fran and Steven Vertovec. “Comparing Super-diversity,”
Ethnic and Racial Studies Vol. 38, 2015, Issue 4.
Milanovic, Branko. Global Inequality: A New Approach for the Age of
Globalization (Harvard University Press 2016).
Park, John and Edward Park. Probationary Americans: Contemporary
Immigration Policies and the Shaping of Asian American Communities
(Routledge 2009).
Parsons, Christopher, Sebastien Rojon, Farhan Samanani, and Lena
Wettach. “Conceptualising International High-Skilled Migration,”
International Migration Institute Working Paper 104, November 2014.
Reichl Luthra, Renee. “Temporary Immigrants in a High-Skilled Labor
Market: A Study of H1Bs,” Journal of Ethnic and Migration Studies Vol.
35, No 2, February 2009, pp. 227-250.
Reichl, Renee. “High Skilled Temporary Immigration in a High Skilled
Labor Market: A Study of H1Bs,” California Center for Population
Research, April 2006.
Rosenblum, Marc. “U.S. Immigration Policy since 9/11,” Migration
Policy Institute 2011.
Rosenblum, Marc. “High-Skilled Immigration and the U.S. National
Interest” in Cornelius, Wayne, Thomas Espenshade, and Idean Salehyan
eds. The International Migration of the Highly Skillled (Center for
Comparative Immigration Studies, UC San Diego 2001).
Ruhs, Martin. The Price of Rights (Princeton University Press 2013).
Ruiz, Neil G. “The Geography of Foreign Students in U.S. Higher
Education: Origins and Destinations.” Brookings Institute 2014.
Salzman, Hal, Daniel Kuehn, and Lindsay Lowell. “Guestworkers in the
High-Skill US Labor Market: An Analysis of supply, employment, and
wage trends,” EPI Briefing Paper, No 359, April 2013.
Salzman, Hal. “What Shortages? The Real Evidence about STEM
Workforce,” Issues in Science and Technology, Summer 2013.
Smith, Peter and Adrian Favell eds. The Human Facer of Global Mobility:
International Highly Skilled Migration in Europe, North America, and
the Asia-Pacific (Transaction Publishers 2006).
Sumption, Madeleine. “Not guarantee points-based system will reduce
net migration, experts warn,” The Guardian, June 8, 2016.
Torpey, John. The Invention of the Passport. Surveillance, Citizenship,
and the State (Cambridge University Press 1999).
Vertovec, Steven. “Super-diversity and its implications,” Journal Ethnic
and Racial Studies Volume 30, 2007 - Issue 6.
Wadhwa, Vivek. The Immigrant Exodus. Why America is Losing the
Global Race to Capture Entrepreneurial Talent (Wharton Digital Press
2012).
Wasem, Ruth. “Immigration Policy for Intracompany Transfers (L Visa):
Issues and Legislation,” Congressional Research Service, Report to
Congress, May 15, 2006.
Chapter Four Highly Skilled Immigration in the United States in an
Age of Globalization
Introduction
In the scholarly literature, labor migration, both unskilled and
highly skilled, is either undifferentiated, or focuses on the impact of
immigration laws on undocumented immigration or unskilled legal
immigration. In this area of research, the literature on immigration laws
is extended and fertile. To name some examples, scholars study
immigration policies for agricultural workers and their relation to the
growth of undocumented immigration (Massey, Malone, and Durand
2002); or focus on deportation policies and the changes implemented on
immigration laws and policies as a consequence of the war on drugs
and the war on terrorism (Golash-Boza 2012; Brotherton and
Kretsedemas 2008); or study undocumented youth (Gonzales 2011,
2016); or focus on the legal and administrative aspects of immigration
policy and the process of policy-making (Wolgin 2011; Martin 2012). Yet
on the subject of highly skilled immigrants, only a few studies point out
the need to put the empirical study of highly skilled, professional, or
educated migrants back onto research agendas in migration and global
studies (Smith and Favell 2006; Espenshade 2005). The literature
generally considers highly skilled immigrants to belong to a
cosmopolitan class, one that under globalization enjoys many privileges
denied to other more disadvantaged immigrants, such as refugees and
asylum seekers, undocumented immigration, and legal unskilled
immigration. After all, highly skilled immigrants’ international mobility
faces fewer obstacles and constraints.
However, the true picture is rather different. In the first place,
though some immigrants belong to a cosmopolitan elite, other highly
skilled immigrants, defined as professionals who have at least bachelor
degree or graduate degrees and who perform a task that requires
mastery of a particular body of knowledge, represent a variety of non-
elite professionals, students, and workers (Ruhs 2013). Furthermore,
the study of highly skilled immigration has been mostly circumscribed
in the literature to the study of Chinese, Koreans, and Indians (Lee and
Zhou 2015; Min and Hyun Jang 2014; Chakravartty 2006). Highly
skilled immigrants from Latin
America remain understudied with some exceptions, such as the work
of Rincón (2015) and
Alarcón (2001).
In this chapter, first of all I use statistics on highly skilled
immigration in the U.S. to describe how globalization has driven the
demand and supply of highly skilled immigrants; in the last two decades
there has been a growth in the number of highly skilled immigrants that
migrated to the country, including the number of international students,
and the penetration of immigrants into certain occupations and
industries that require specialized knowledge. At the same time,
companies located in certain industries, e.g., the information
technology industry, increased the demand for highly skilled
immigrants. Second, I use statistics from the Department of Homeland
Security on temporary and permanent immigration to describe highly
skilled immigration under these legal statuses and how since the 1990s
immigration laws and policies have become increasingly outdated and
unable to absorb the growth in the number of highly skilled immigrant
visas that United States companies requested. Additionally, parallel to
the growth of temporary work visas approved, there has been a
dramatic concentration of highly skilled immigrants that adjusted their
status compared to new arrivals in the permanent employment-based
visa category.
Demand for and Supply of Highly Skilled Immigration in the U.S.
Globalization has driven the growth of the highly skilled foreign-
born population in the United States in recent decades. On the one
hand, the supply of highly skilled immigrants grew because of the
growth of educated populations in sending countries as well as the
increasing numbers of international students who came to the United
States to pursue graduate degrees and remained in the country once
they finished their studies. On the other hand, the country’s
technological transformation and international commerce caused a
growth in the demand for highly skilled immigrants by certain
industries, e.g. the information technology industry.
The growth of highly skilled immigrants accelerated in the past
decade. Indeed, highly skilled immigration is growing faster than low-
skilled immigration. There was a growth of 89
percent in the foreign-born population with college degrees between
1990 and 2000 (from 3.1.million to 5.9 million) and 61 percent between
2000 and 2011 (from 5.9 million to 9.4 million), while the native college
population grew by 32 percent and 28 percent respectively during the
same periods. Given the faster rate of growth, the foreign-born share of
the collegeeducated population also increased over the last two
decades: from 10 percent in 1990 to 13 percent in 2000 and to 16
percent in 2011. One in six college-educated adults were born abroad
during this period. In 2011, of the 58.8 million adults with a bachelor’s
degree and higher, 9.4 million, or 16 percent, were immigrants. Of
those 9.4 million foreign-born collegeeducated adults, one in three were
immigrants who arrived between 2000 and 2011 (Ji and Batalova 2012).
Hall, Singer, De Jong, and Graefe (2011) point out in “The
Geography of Immigrants Skills: Educational Profiles of Metropolitan
Areas” that the number of immigrants with college degrees has been
increasing, while the corresponding number of immigrants without a
high school education has been declining. In 1980, the number of low-
skilled immigrants was more than twice the number of highly skilled
ones, and their respective shares of the working-age immigrant
population differed by 20 percent. Over the next 30 years, the low
skilled immigrant share dropped by more than 10 percent while the
highly skilled share increased by more than 10 percent.
According to the 2000 U.S. Census, new immigrants who arrived
during the 1990s were more likely to be low skilled than highly skilled.
Also, among those immigrants who arrived in the 1980s, low skilled
immigrants outnumbered highly skilled immigrants by 60 percent.
However, among the 7.9 million working-age immigrants reported in
the 2009 American Community Survey who arrived in the United States
during the 2000s, nearly a third of them were highly skilled, more than
the number of low-skilled immigrants who arrived during the same
period (Hall, Singer, De Jong, and Graefe 2011). Additionally, the
number of international students in the United States has steadily
increased during the past several decades, rising from 250,000 in 1978-
79, to half a million in 1998-99, to close to 700,000 in 2009-10. The
upward trend in the international student population at American
colleges and universities increases the number of highly skilled
immigrants, because some of them adjust their visa status to allow
them to live and work in the United States after graduation.
According to the American Community Survey Report (2007), 16
percent of the labor force in 2007 was foreign-born. Among the labor
force with doctoral degrees, 28 percent were foreign-born; 17 percent
of the labor force with professional degree were foreign-born, as well as
16 percent with Master degree. Fifty percent of foreign-born individuals
with doctoral degrees and 62 percent of those with professional
degrees were naturalized citizens. In terms of region of the world and
educational attainment of the foreign-born labor force, 55 percent of
those with doctoral degrees were born in Asia, 25 percent in Europe,
and 9.3 percent in Latin America.
In 2007, workers from the foreign-born labor force made up only
about 6 percent of employees in the utilities industry, which had median
earnings of about $54,200. Eleven percent of managers in companies
and enterprises (median earnings $53,900) were foreignborn; 7 percent
of workers in the mining (median earnings $51,300) and public
administration (median earnings $46,000) industries were foreign-born.
The professional, scientific, and technical services industry (median
earnings $51,900) was a notable exception, with 14 percent being
foreign-born. This reflects the large segment of foreign-born workers
who have advanced degrees. A majority of foreign-born workers in this
industry group were naturalized citizens (ACS 2007).
While industry is the type of activity pursued at a person’s place of
work, occupation is the kind of work a person does to earn a living.
Thirty-seven percent of employed naturalized citizens and 36 percent of
native-born workers earned their livings in management, professional,
and related occupations in 2007, compared with 20 percent of workers
who were not citizens. Naturalized citizens were far less likely than
noncitizens to work in service occupations (19 percent and 27 percent,
respectively), though somewhat more likely to than natives (16
percent). All occupational groupings showed greater similarity in
occupational distribution between naturalized citizens and natives than
between naturalized citizens and noncitizens (ACS 2007).
Foreign-born workers from different parts of the world tend to
work in different occupations, in patterns that reflect their different
educational attainment. For example, in 2007, workers who were born
in Asia were more likely than natives to work in management,
professional, and related fields (46 percent compared with 36 percent),
as were workers from Europe (43 percent). Only 13 percent of workers
from Latin America were employed in management, professional, and
related fields. Seven percent of U.S. workers born in Mexico, and 12
percent from other Central American countries were in management,
professional, and related occupations, while 25 percent of workers who
were born in the Caribbean and 26 percent from South America were in
these occupations (ACS 2007).
Data from the 2010 American Community Survey show that 48.5
million (28 percent) of the 170.7 million native-born population aged
25 and older, and 9.1 million (27 percent) of the 33.6 million foreign-
born population aged 25 and older, had a bachelor’s degree or higher.
Nationally, foreign-born individuals made up 16 percent of the
resident population holding a bachelor’s degree or higher, and a larger
proportion (21 percent) of the population whose bachelor’s degree
was in a science and engineering field. The foreign-born group
represented 33 percent of all bachelor’s degree holders in engineering
fields, 27 percent in computers, mathematics, and statistics, 24
percent in physical sciences, and 17 percent in biological, agricultural,
and environmental sciences. A higher proportion of the foreign-born
group had bachelor’s degrees in science and engineering fields than of
the native-born. Of those with bachelor’s degrees or higher, 33
percent of native-born individuals had a degree in a science and
engineering field, while 46 percent of the foreign-born group had a
degree in a science and engineering field. This difference was also
pronounced in certain degree fields, such as engineering, computers,
mathematics, statistics, and physical sciences (Gambino and Gryn
2011). In 2010, the educational attainment of the foreign-born
population 25-64 years old showed that 30 percent had bachelor’s
degrees, similar to those who were born in the U.S., which was 32
percent. For those who held master’s degrees, doctorates, or
professional degrees, the percentage was closer for the foreign-born
and U.S. born population, 11 percent (Singer 2012).
Globalization has also driven the increasing demand for highly
skilled immigrants, which reflects the penetration of immigrants into
various occupations and industries. As the data show, there has been
growth over time of the foreign-born population in certain kinds of jobs
requiring advanced education and training. In 1970, the percentage of
scientists and engineers in the U.S. labor force who were native born
was 92.4, while the remaining 7.6 percent were foreign born. By 1990,
native-born group had dropped to 88.6 percent, while the foreign-born
group grew to 11.4 percent. By 1997, the percentage changed to 85.2
percent native-born and 14.8 percent foreign-born (Espenshade 2001).
Highly skilled immigrants are concentrated in certain industries
such as the information technology field, with immigrants clustered in
the top occupations: computer software engineers, 36.2 percent;
computer scientists and system analysts, 14.5 percent; and computer
programmers 8.4 percent. The educational attainment of immigrants by
industry is 42 percent hold bachelor’s or higher in healthcare, 55.9
percent in high-tech manufacturing, 87.2 percent in information
technology, and 68 percent hold in life sciences (Singer 2012).
Highly skilled immigrants count for 33 percent of the occupational
group in research and development in the pharmaceutical industry. In
2013, the top five birth countries of foreign-born highly skilled workers
in the pharmaceutical industry were: India, China, Mexico, the
Philippines, and South America as a whole. Highly skilled immigrants in
this industry come from those countries with the fastest-growing
pharmaceutical industries. From 2010-2014, highly skilled immigrants
in health occupations were distributed in the following occupations:
physicians and surgeons 27.8 percent; nursing, psychiatric, and home
aid health 21.9 percent; registered nurses 14.7 percent; technologists
and technicians 12.1 percent; and therapists 12.2 percent. The top five
countries for foreign-born physicians were: India, the Philippines,
Mexico, Pakistan, and Dominican Republic (Hohn, Lowry, White,
Fernandez-Pena 2016).
Highly skilled immigrants constitute 40 percent of medical
scientists in manufacturing research and development and 50 percent
of medical scientists in biotechnology in states with a strong
biotechnology sector (Hohn, Lowry, White, Fernandez-Pena 2016).
Highly skilled immigrants also constitute 42 percent of cancer
researchers at top U.S. cancer institutes. In 2010, the percentage of
foreign-born researchers in the top five U.S. cancer research centers
were: University of Texas MD Anderson Center Cancer, 62 percent;
Memorial Sloan-Kettering Center 56 percent; Fox Chase Cancer Center
35 percent; Johns Hopkins Sidney Kimmel
Comprehensive Cancer Center 35 percent; and Dana-Farber Cancer
Institute 33 percent. The top five countries of origin for cancer
researchers at the top seven top cancer centers are:
China 21 percent; India 10 percent; Germany 7 percent; Canada 7
percent; and United Kingdom 7 percent (Anderson 2013).
Penetration of Highly Skilled Immigrants into STEM Occupations
Globalization caused the growth in the penetration of highly
skilled immigrants in certain industries and occupations that require
specialized knowledge. In this section, I will focus on the increase in
foreign-born workers compared to U.S.-born from 2003 to 2013 in
science, technology, engineering, and math (STEM) fields, from which
regions foreign-born individuals come, median income, occupations and
primary and secondary activity, whether foreign-born workers
completed their education in the U.S. or in their country of origin, and
the percentage of naturalized citizens, permanent, and temporary
residents among the foreignborn population working in STEM fields.
The permanent U.S. immigration policy is family-oriented.
However, analyzing by educational fields, the National Science
Foundation (2007) concluded that in 2003, of U.S. immigrants with
science and engineering education, 3.4 million or 37 percent arrived for
family reasons. Among immigrants who arrived with a master’s degree,
family-related immigration drops to 30 percent, and decreases to 16
percent with a doctoral degree. Despite its prevalence in U.S.
immigration overall, family is a far less important issue when it comes
to attracting science and engineering-educated foreigners (Kirkegaard
2007).
According to “Immigrants’ Growing Presence in the U.S. Science and
Engineering
Workforce: Education and Employment Characteristics” Report, by
Flora Lan, Katherine Hale, and Emilda Rivers, from the National
Science Foundation (2015), the number of scientists and engineers
grew from 2003 to 2013, increasing from 21.6 million to 29 million.
Immigration was an important factor for this growth, given that the
number of immigrants in those fields grew from 2003 to 2013, from 16
percent or 3.4 million to 19 percent or 5.2 million. Among these 5.2
million foreign-born individuals, 64 percent were naturalized citizens,
22 percent were permanent residents, and 15 percent were temporary
visa holders.
In 2013, among 5.2 million foreign-born engineers and scientists,
57 percent were born in Asia, 20 percent in North America, Central
America, the Caribbean or South America, 16 percent were born in
Europe, 6 percent were born in Africa, and less than 1 percent was born
in Oceania. Among Asian countries, India constitutes the top country,
with an increase of
85% (515,000 in 2003 and 950,000 in 2013) in the number of engineers
and scientists from
2003 to 2013; the number of engineers and scientists from the
Philippines increased 53 percent
(304,000 in 2003 and 465,000 in 2013), and the number of engineers
and scientists from China
(including Hong Kong and Macau) increased 34 percent (326,000 in
2003 and 438,000 in
2013). The number of engineers and scientists from South America
increased 69 percent, from 179,000 in 2003 to 303,000 in 2013, the
number from Central America and the Caribbean increased 60 percent
from 315,000 in 2003 to 506,000 in 2013, and those from Africa
increased 93 percent, from 167,000 in 2003 to 323,000 in 2013.
In 2013, the most common degrees for foreign-born scientists and
engineers were in engineering, computer, and mathematical sciences.
Engineering degrees constituted 20 percent of all degrees earned by
foreign scientists (compared to 10 percent for U.S. born individuals).
Degrees in social and related sciences represented 14 percent of
degrees earned by foreignborn engineers and social scientists
(compared to 24 percent degrees earned by U.S. born individuals).
Economics is the most typical social science degree earned by foreign-
born (30 percent compared to 13 percent of U.S born individuals).
Psychology constituted 30 percent for foreign-born and 40 percent for
U.S. born individuals. Degrees in computer and mathematical sciences
represented 15 percent of foreign born (compared to 8 percent of U.S.
born individuals).
The variations by field from 2003 to 2013 are the following: in
computer and mathematical sciences, the number of immigrant
graduates grew from 210,000 to 767,000, an increase of 82 percent.
For those born in the U.S., the increase was 46 percent. For engineering
degrees there was a 45 percent increase for foreign-born compared to
12 percent for U.S. born graduates. There was a 27 percent increase in
physical and related sciences for foreign-born and 4 percent for U.S.
born individuals.
In 2013, 34 percent of engineers and scientist immigrants worked
in science and engineering occupations compared to 22 percent of
those born in the U.S. The largest percentage was computer and
mathematical scientists with 18 percent of foreign-born compared to 10
percent of U.S. born workers. The second occupation was engineering,
with 8 percent of immigrants and 6 percent of U.S. born workers. The
three science and engineering fields that had an important growth for
foreign-born workers from 2003 to 2013 were: life scientists (75
percent), computer and mathematical scientists (58 percent), and social
and related scientists (55 percent). The growth for U.S. born workers
was smaller for these occupations in the same period. In occupations
like physical and related scientists and engineering, the share of
foreign-born workers increased from 2003 to 2013. The number of
engineers increased by 10 percent (32,000) and the number of physical
and related scientists increased by 27 percent (17,000) while the
number of U.S. born engineers decreased 2 percent and physical and
related scientists decreased 5 percent.
The median annual salary for foreign-born engineers and
scientists was higher than for U.S. born ones ($72,000 and $ 64,000
respectively). Immigrants earned higher salaries at the level of master’s
and doctoral degrees, while at the level of bachelor’s degree
immigrants and U.S. born workers earn similar salaries. In 2013, 76
percent of immigrant scientists and engineers were employed in
business and industry compared to 69 percent of U.S. born workers, 11
percent in 4 year colleges or universities compared to 7 percent, 6
percent in other educational institutions compared to 12 percent, and 8
percent or foreign-born scientists and engineers worked in the
government compared to 12 percent of U.S. born ones. In 2003, the
differences in share of immigrant and U.S. born engineers and scientists
were similar than in 2013.
Taking into account the activity performed, 58 percent of
employed scientists and engineers reported management, sales, or
administration as a primary or secondary activity. Among them, 49
percent of immigrant engineers and scientists declared these activities
as their primary or secondary compared to 60 percent of U.S. born
ones. Additionally, 34 percent of immigrant scientists and engineers
declared research and development as their primary or secondary
activity compared to 25 percent of U.S. born individuals. Also, 19
percent of immigrant engineers and scientists reported their primary or
secondary activity included computer applications such as computer
programming, systems or application development compared to 9
percent of U.S. born. Lastly, 19 percent of U.S. born engineers and
scientists reported teaching as their primary or secondary activity
compared to 13 percent of foreignborn engineers and scientists.
According to the Scientists and Engineers Data System, which
comprises longitudinal information on the education and employment of
the college-educated U.S. science and engineering workforce from the
National Science Foundation, 16 percent of all collegeeducated workers
were foreign born in 2010. College graduates employed in science and
engineering occupations were disproportionately foreign born (27
percent) compared to the entire college-educated workforce. In
general, foreign-born workers employed in science and engineering
occupations tend to have higher levels of education than their U.S. born
counterparts: 19 percent of foreign-born scientists and engineers have
a doctorate, compared to 10 percent of U.S. native-born scientists and
engineers. In most science and engineering occupations, the higher the
degree level, the greater the proportion of the workforce who are
foreign-born. This relationship is weakest among social scientists and
strongest among computer and mathematical scientists and engineers.
In 2010, at the bachelor’s degree level, the proportion of foreign-born
individuals in science and engineering occupations ranged from 13
percent (physical scientists) to 23 percent (computer and mathematical
scientists). However, at the doctoral level, over 40 percent were
foreign-born in each science and engineering occupation except the
social sciences.
The majority of foreign-born scientists and engineers in the United
States received their initial university training abroad. In 2010, there
were about 4.3 million college-educated, foreign-born individuals
employed in the United States with a science and engineering degree or
in a science and engineering occupation; of these, 2.3 million received
their first bachelor’s degree abroad. Among employed foreign-born
scientists and engineers, 54 percent of those whose highest degree is at
the bachelor’s level received their initial university degree from a
foreign institution. The proportion is similar among foreign-born
scientists and engineers with advanced degrees (53 percent).
Many foreign-born scientists and engineers in the United States come
to the United
States for further higher education after receiving their initial
university training abroad. Of the 2.1 million foreign-born scientists and
engineers who are employed in the United States and hold an advanced
degree, two-thirds completed their highest degree in the United States,
divided almost evenly between those who received their first bachelor’s
degree abroad
(671,000) and those who received their first bachelor’s degree in the
United States (647,000). Almost one-fourth of foreign-born scientists
and engineers with an advanced degree (472,000) received both their
initial university degree and advanced (highest) degree abroad. In
contrast, only a small number of foreign-born scientists and engineers
(35,000) received their first bachelor’s degree in the United States and
their highest degree abroad. Among the foreignborn doctorate holders
employed in the United States, 58% received this degree from a U.S.
institution and 83% received their initial university degree from a
foreign institution (National Science Board Science and Engineering
Indicators 2014). Given the proportion of international students that
become temporary workers and legal permanent residents, American
colleges and universities constitute a de facto source of selection for
highly skilled immigration.
Complexification of Migration Channels and Legal
Statuses: Temporary and Permanent Visas
In the next sections, I present data on highly skilled immigration
under H-1B, L-1, F1 OPT (temporary legal statuses) and legal
permanent residents (LPRs). The data were taken from the Immigration
Statistics Office at the Department of Homeland Security.
Temporary Work Visas: H-1B and L-1
In this section, the data on H-1B visas were taken from the Annual
Reports to
Congress presented by the Department of Homeland Security, and
Excel tables from the
Immigration Statistics Office. The reports “Characteristics of H-1B
Specialty Occupation Workers” have data from FY 2003 to FY 2014. The
data below cover the number of petitions filed and approved between
FY 2000 and FY 2015; the number of petitions approved from FY 2003
to FY 2014, disaggregating by initial and continuing employment;
beneficiaries’ top five countries of birth, and data for Latin America and
Central America from FY 2003 to FY 2014; beneficiaries’ education
from FY 2001 to FY 2014; beneficiaries’ age from FY 2004 to FY 2014;
and the top five occupations and industries from FY 2003 to FY 2014.
When we analyze the evolution of the number of H-1B petitions
filed and approved from FY 2000 to FY 2015, we observe that the
highest number of petitions approved was in FY 2001 (331,206) and the
lowest number was in FY 2010 (192,990). The biggest difference
between petitions filed and petitions approved was in FY 2015, with
73,352 petitions filed but not approved; the lowest rate of difference
was in FY 2014, with 2,967 petitions filled but not approved. The
average number of petitions filed but not approved from FY 2000 to FY
2015 is 24,229 (Figure 5).
Figure 5: H-1B Petitions Filled (blue) and Approved (red) from FY
2000 to FY 2015
Source: DHS, Reports on H-1B Petitions from 2000 to 2015.
The data on the evolution of the H-1B petitions approved from FY
2002 to FY 2014 by type, Initial Employment or Continuing
Employment, show that the majority of the beneficiaries were in the
U.S. when they applied for the H-1B visa. For those who initiated
0
50,000
100,000
150,000
200,000
250,000
300,000
350,000
400,000
2000
2001
2002
2003 2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
employment, a percentage applied outside the U.S., but a percentage
that is sometimes higher, equal to, or slightly lower than the percentage
that applied while in the U.S. Data that would show from which
temporary visa the H-1B beneficiaries come from is not available. Those
who applied as continuing employment (H-1B visa renewal) were
already working in the U.S (Figure 6).
Figure 6: H-1B Petitions Approved from FY 2002 to FY
2014
Source: DHS Immigration Statistics.
Country of Birth
The top five countries of birth of H-1B beneficiaries from FY 2003
to FY 2014 were, in order from first to fifth, India, China, Canada, the
Philippines, and South Korea (with the exception of FY 2003 and FY
2004, when the UK replaced South Korea in fifth place). India
concentrates the highest number of beneficiaries each fiscal year, far
above the other four countries, and with a percentage that varies
between 40 and 70 percent of beneficiaries (figure
7). Beneficiaries from Latin America and Central America are
represented by Mexico, Colombia, Venezuela, and Brazil from FY 2005
to FY 2013, and Argentina from FY 2005 to FY 2008. The percent of H-
1B beneficiaries among Latin American or Central American countries
is never higher than 1.9 percent or lower than 0.5 percent.
Figure 7: H-1B Beneficiaries Top Five
Countries of Birth FY
2003 to FY 2014
Source:DHS Immigration Statistics
Education
From FY 2001 to FY 2014, between 40 and 50 percent of
beneficiaries had bachelor’s degrees, between 30 and 40 percent had
master’s degrees, and between 7 and 13 percent had
PhDs (Figure 8). The percentage is similar for initial and continuing
employment. The data on H-1B recipients do not specify whether the
beneficiaries acquired the degree in the U.S. or abroad.
Figure 8: Education H-1B Beneficiaries from FY 2001 to FY 2014
Source: DHS Immigration Statistics.
Age
Young adults dominate the age cohort of H-1B beneficiaries
between FY 2004 and FY 2014, which concentrates in the category 25-
34 years with a percentage that varies between 65 and 72 percent
(Figure 9)
Figure 9: Age of H-1B Beneficiaries from FY 2004 to FY 2014: 25-34
years
Source: DHS Immigration Statistics
Occupation
The top five occupations between FY 2003 and FY 2014 were computer-
related
occupations; architecture, engineering, and surveying; administrative
specializations; education; and medicine and health. The first
occupation fits in the category computer-related occupations, with 45-
65 percent (Figure 10).
Figure 10: Top Five Occupations H-1B Beneficiaries from FY 2003 to
FY 2014
0
50,000
100,000
150,000
200,000
250,000
300,000
2003
2004 2005
2006
2007 2008
2009
2010
2011 2012
2013
2014
First
Second
Third
Fourth
FiPh
Source: DHS Immigration Statistics
Industry
From FY 2003 to FY 2014, the top five industries were
concentrated heavily within the information technology industry.
Computer systems and related services was the first industry between
FY 2003 to FY 2008, with 30-40 percent of beneficiaries, and computer
programming services was the first industry from FY 2009 and FY 2014,
with 30-35 percent of beneficiaries, and a peak of 54 percent in FY
2012. Colleges, universities, and professional schools was the second
industry from FY 2003 to FY 2012, and it was third in FY 2013 and FY
2014, with around 10 percent of beneficiaries. In FY 2013 and FY 2014,
four of the top five industries were related to the information
technology industry (Figure 11).
Figure 11: Top Five Industries H-1B Beneficiaries from FY
2003 to FY 2014
Source: DHS Immigration Statistics.
The data illustrate that between FY 2003 and FY 2014, the top
three industries that concentrated the highest percent of H-1B visas
were: computer system and related services; colleges, universities, and
professional schools; and architecture, engineering, and related
services. Figures 12, 13, and 14 show data on H-1B petitions approved
by detailed industry and type of petition for these three industries.
0.00%
% 10.00
% 20.00
30.00%
40.00%
50.00%
60.00%
2003
20042005
2006
20072008
2009
2010
2011 2012
2013
2014
First
Second
Third
Fourth
FiPh
Figure 12: Computer System FY 2003-2014
Source: UCSIS H-1B visas Reports and Statistics.
Figure 13: Colleges and Universities
FY 2003-2014
Source: UCSIS, H-1B visas Reports and Statistics.
% 0.00
% 10.00
% 20.00
% 30.00
40.00%
50.00%
60.00%
2003
2004
2005
2006
2007
2008 2009
2010
2011
2012
2013
2014
% 0.00
% 2.00
% 4.00
% 6.00
8.00%
10.00%
12.00%
2003
2004
2005
2006
2007
2008 2009
2010
2011
2012
2013
2014
Figure 14: Architecture, Engineering, and Related Services FY 2003-2014
Source: UCSIS, H-1B visas Reports and Statistics.
Figures 15 and 16 illustrate the top ten H-1B employers for FY
2014 (Figure 15) and from FY 2005 to FY 2014 (Figure 16). All are IT
offshore outsourcing firms: five with headquarters in India, four in the
U.S., and one in Ireland. Among the top 20 employers, offshoring firms,
such as Tata Consultancy, Cognizant Tech, Infosys, Wipro, or Tech
Mahindra do not sponsor H-1B highly skilled immigrants for green
cards (less than 10 percent) compared to IT firms that do not utilize
offshoring, such as Google, Intel, Amazon, Microsoft, or Apple (Hira
2016).
% 0.00
% 1.00
% 2.00
% 3.00
4.00%
5.00%
6.00%
% 7.00
2003
2004
2005
2006
2007 2008
2009
2010
2011 2012
2013
2014
Figure 11: Top Ten H-1B Employers FY 2014
Source: Ron Hira, Economic Policy Institute Blog, August 2016
Figure 12: Top Ten H-1B Employers FY 2005-2014
Source: Ron Hira, Economic Policy Institute Blog, August 2016
L-1 visa
The data available from the DHS are not very extensive for L-1
visas. USCIS is not required to submit reports to Congress or publish
any details of the L-1 visa. The number of petitions filed and the number
of petitions approved for L-1 workers is not published either. The data
the DHS does provide for L-1 beneficiaries consider the number of
entries, but not the individuals. Thus an individual who entered the
country more than once in the year will be counted several times. I do
not use the data on entries because the total number is suspiciously
high, and does not give a precise picture of the number of L-1 petitions
approved annually and over time.
Though there is no continuity in the data provided by the DHS, as
figure 17 shows, I was able to get the number of L-1 petitions approved
by the DHS between FY 2000 and FY 2006 from Hira’s (2016) article.
Figure 17: L-1 Petitions Approved from FY 2000 to FY 2006
Source: DHS, Immigration Statistics
The first country of birth for L-1 workers is India, with 18,182
visas awarded in 2012. The other countries in the top are the UK, Japan,
Mexico, Canada, and China. Though USCIS does not publish a list of
employers who petition for L-1 workers, the L-1 visa is a program
mostly used by the information technology industry, and with workers
from India. From FY 1999 to FY 2004, nine of the top ten firms
submitting petitions for L-1 workers were computer and IT companies.
In 2006, two Senators disclosed information from USCIS that the top 20
L-1 visa sponsors were overwhelmingly IT and software companies.
Subsequent data from 2008 demonstrates that the same information
technology companies still lead the pack of L-1 employers (Hira 2016).
Nine of the top ten employers of L-1 visas between FY 2002 and
FY 2011 are outsourcing firms (Figure 18).
0
10,000
,000 20
30,000
40,000
50,000
60,000
70,000
80,000
90,000
100,000
2000
2001
2002
2003
2004
2005
2006
Figure 18: Top Ten L-1 Employers FY 2002-2011
Source: Ron Hira 2016, Economic Policy Institute
F1 International Students and Optional Practical Training
The share of international students in science and engineering
using temporary visas has increased since the mid-1980s, with a decline
beginning in 2001, around 9/11. Since at least 1980, the foreign-born
share among the total population of engineering students has never
been less than 40 percent. The challenge for the U.S. is whether the
country can retain highly skilled foreign-born students. The age profile
of the science and engineering workforce further accentuates the need
to retain a high level of foreign students in the U.S. workforce. While
the age profile of the degree-holding science and engineering workforce
is perhaps slightly younger than the overall university-educated U.S.
workforce, a substantial number of science and engineering degree
holders will nonetheless enter some form of retirement in the coming
decade. Moreover, as is the case with the degree-holding U.S.
population, younger cohorts aged 30–34 with science and engineering
degrees are not substantially more numerous than their colleagues 20
years older. Thus, U.S. will (continue to) become more dependent on
retaining US-trained foreign highly skilled science and engineering
talent in the workforce, both because their share of supply is rising and
because the existing stock will increasingly be retiring (Kirkegaard
2007).
The report written by Neil G. Ruiz of the Brookings Institute
entitled “The Geography of Foreign Students in U.S. Higher Education:
Origins and Destinations” (2014) points out very interesting
developments in the international student population between 2008 and
2012. 62 percent of F-1 approvals come from upper and lower-middle
countries, with a GNI of about $1,000 to $13,000 per capita. The top
four countries sending international students to the U.S. are China (25
percent of all approvals), India (15 percent), South Korea (10 percent),
and Saudi Arabia (5 percent). Thirty percent of international students
study business, management and marketing while 37 percent pursue a
degree in science, technology, engineering, or mathematics.
International students in STEM fields tend to locate in U.S. metro areas
with a strong STEM-oriented economy or with STEM-specialized
institutions. Metro areas such as New York (31,800), Los Angeles
(20,200), and Boston (14,200) concentrate the highest number of STEM
international students (Ruiz 2014).
Among foreign STEM students, 31 percent are from China, 27
percent from India and 5 percent from South Korea. Eight of the ten
origin cities with the highest share of F-1 students in STEM fields are in
India. Many of these cities are emerging centers of the global IT
industry. Students enrolled in business degrees come from Beijing,
Seoul, Shanghai, Riyadh and Taipei or Asian cities of smaller size but
whose economy is growing fast, like Ulan Bator,
Hanoi, and Ningbo. Beijing (China), Shanghai (China), Hyderabad
(India) and Riyadh (Saudi Arabia) made up the top four global cities,
each sending between 17,000 and 50,000 students to the U.S. 19 out of
the top 20 cities sending international students to the U.S. were large
or megacities in 2010. Three of the top 20 cities, Hyderabad (India),
Kathmandu (Nepal) and Chennai (India) are currently very low income;
they are projected, however, to experience economic growth in the next
decade (Ruiz 2014).
Foreign students constitute a source of foreign investment. Seoul,
an upper middleincome city, contributed the most tuition dollars ($1.3
billion) and living expenses ($781.7 million) from 56,500 students over
the 2008-2012 period. Over the same five-year period, Beijing,
Shanghai, Mumbai, and Hyderabad made up the remaining top five
cities, each contributing between $650 million and $2.0 billion in total
educational spending (Ruiz 2014).
The Optional Practical Training program authorizes international
students under the F1 visa to work between 12 and 36 months (for
STEM graduates) after they have completed their studies. There is not a
limited number of OPT that are offered annually. Between 2008 and
2012, around 375,000 OPTs, an average 75,000 a year, were granted to
international students. 45 percent of international students on OPT
stayed in the same metropolitan area where they studied, and generally,
OPTs tend to be located in larger metropolitan areas. For example, the
New York City metro area, the nation’s largest, has the highest
percentage (75 percent) of its OPT foreign graduates remaining to work
for a New York-based employer. Other metro areas exhibiting high
percentages include Honolulu (75 percent), Seattle (74 percent), Miami
(70 percent) and Las Vegas (67 percent). Both Honolulu and Las Vegas
have very large tourism and hospitality industries that attract many
foreign students from Asia. In the Seattle area, international students
use their OPT to work for information technology and software
companies located in the region (Ruiz 2014).
Employment-Based and Family-Based Permanent Visas
The immigration statistics available at the Department of Homeland
Security for highly
skilled immigration have certain limitations for this research. First, data
on highly skilled immigrants are provided only in the employment-based
preferences. In the family-based preference, the data available consider
the family categories but do not differentiate between highly skilled and
low-skilled immigration. Furthermore, the data on country of birth, age,
and sex are not cross-referenced with class of admission, so it is not
possible to identify many characteristics of the highly skilled
immigrants. Finally, the data do not mention from which temporary visa
new LPRs who adjusted their status come from. Thus this section on
permanent visas is organized with the immigration statistics available
at the DHS for highly skilled immigrants.
There are 13.1 million legal permanent residents living in the U.S.
The evolution of the numbers of LPRs from FY 1970 to FY 2014 shows
the lowest number of LPRs awarded occurred in FY 1971, with 370,448.
Between FY 1970 and FY 1998, the number of LPRs awarded fluctuated
between around 370,000 to 650,000 annually. In FY 1990, that number
increased to 1,090,172, and in FY 1991, increased to 1,535,873. The
peak occurred in FY 1992, with 1,826,595 LPRs awarded. From FY
1992 to FY 2000, the number fluctuated between around 600,000 to
900,000 LPRs awarded annually. From FY 2001 to FY 2014, the number
of LPRs awarded was around 1,000,000 (Figure 19).
Figure 19: Evolution of LPRs Awarded from FY 1970 to FY 2014
Source: DHS, Table Persons Obtaining LPR Status from FY 1970 to FY 2014
Among the total number of LPRs awarded between FY 2002 and FY
2014, the number of LPRs awarded is higher for the adjustment of
status category than the new arrival category (Figure 20).
Figure 20: Evolution of LPRs from FY 2002 to FY 2014
Source: DHS Immigration statistics.
The data for highly skilled immigrants in the employment-based
preference illustrate the same pattern, but the difference is much more
pronounced. For EB2 and EB3, two of the employment-based categories
that concentrate the highest number of highly skilled immigrants, the
percentage of immigrants who adjusted their status from other
temporary visa is above 90 percent for EB2, a category which includes
professionals with advanced degrees and aliens with exceptional
abilities. For EB3, skilled workers, professionals, and unskilled workers
(the number of unskilled workers under this class of admission is very
low), the percentage fluctuates between 73 and 86 percent (Figures 21
and 22). The number of green cards granted for both categories
includes highly skilled immigrants and dependents (spouses and
children).
In order to have an idea of the percentage of highly skilled
immigrants that received a green card without including spouses and
children, I take FY 2014 as an example. In FY 2014, for the category
EB2, 48 percent of the total green cards awarded went to highly skilled
immigrants, 49 percent of the total green cards awarded under
adjustment of status went to highly skilled immigrants, and 32 percent
of the total green cards awarded to new arrivals were awarded to
highly skilled immigrants. For the category EB3, 45 percent of the total
green cards awarded went to highly skilled immigrants, 49 percent of
the total green cards awarded to those who adjusted their status were
highly skilled immigrants, and the 28 percent of the total green cards
awarded to new arrivals went to highly skilled immigrants.
Figure 21: EB2: Professionals with advanced degrees and aliens with
exceptional abilities.
FY 2004 to FY 2014
Source: DHS Immigration statistics
Adjust Status New Arrivals
Total
FY2004 31,134 (92%) 1400 (8%)
32,534
FY 2005 41,109 (96%) 1,488 (4%)
42,587
FY 2006 20,939 (95%) 972 (5%)
21,911
FY 2007 42,991 (97%) 1,171 (3%)
44,162
Total
0
,000 20
,000 40
,000 60
,000 80
2004
2005
2006 2007
2008 2009
2010
2011
2012
2013
2014
Total
New Arrival
Adjust Status
FY 2008 68,832 (98%) 1,214 (2%)
70,046
FY 2009 44,336 (97%) 1,216 (3%)
45,552
FY 2010 52,388 (97%) 1,588 (3%)
53,976
FY 2011 65,140 (97%) 1,691 (3%)
66,831
FY 2012 49,414 (96%) 1,545 (4%)
50,959
FY 2013 60,956 (96%) 2,070 (4%)
63,026
FY 2014 46,872 (96%) 1,929 (4%)
48,80
Figure 22: EB3: Skilled workers, professionals, and unskilled workers
FY 2004 to FY 2014
Source: DHS Immigrations statistics
Adjust Status New Arrivals
Total
0
,000 20
,000 40
60,000
80,000
100,000
120,000
140,000
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
Total
New Arrival
Adjust Status
Total
FY 2004 65,875 (76%) 20,094 (24%)
85,969
FY 2005 109,713 (85%) 19,357 (15%)
129,070
FY 2006 60,390 (67%) 29,532 (33%)
89,922
FY 2007 62,642 (73%) 22,388 ( 27%)
85,030
FY 2008 38,981 (79%) 9,922 (21%)
48,903
FY 2009 33,525 (82%) 6,873 (18%)
40,398
FY 2010 34,433 (86%) 5,329 (14%)
39,762
FY 2011 29,757 (79%) 7,459 (21%)
37,216
FY 2012 31,208 (79%) 8,021 (21%)
39,229
FY 2013 34,937 (80%) 8,695 (20%)
43,632
FY 2014 35,588 (82%) 7,568 (18%)
43,156
In order to understand the proportion of visas awarded in the
employment-based preference compared to family-based preference
and how many visas were awarded to highly skilled immigrants (EB2
and EB3) in the employment-based preference, figure 23 compares the
number of LPRs awarded between FY 2002 and FY 2014 taking into
account the number of LPRs awarded, the number awarded in the
family-based preference, those awarded in the employment-based
preference, and the number awarded in EB2 and EB3 categories for
highly skilled immigrants in the employment-based preference. During
this period, the percentage of family-based visas awarded was never
lower than 60 percent, and the percentage of employment-based visas
awarded was never higher than 16 percent.
Figure 23: LPRs by Admission Class from FY 2002 to FY 2014
Source: DHS Immigration Statistics
The relation between the number of LPRs awarded from FY 2002
to FY 2014, the total number of LPRs in the employment-based
preference, and the total number of LPRs awarded in the two
employment-based preferences for highly skilled immigrants show that
0
200,000
400,000
600,000
800,000
,000,000 1
,200,000 1
1,400,000
Total
Family
Employment
EB2
EB3
in the employment-based preference more than 60 percent of visas
were awarded to highly skilled immigrants, except in FY 2005, when
there was a peak of 22 percent in the number of employment-based
visas awarded (Figure 24).
Figure 24: LPRs Employment-based Compared with EB-2 & EB-3
FY 2004 to FY 2014
Source: DHS Immigration Statistics
To conclude, figure 25 illustrates what was advanced at the
beginning of the section regarding temporary and permanent visas,
which constitutes one of the main trends in highly skilled immigrations
since the 1990s: the number of temporary visas awarded to highly
skilled immigrants was higher than the number of LPRs awarded in the
employment-based preference from FY 2004 to FY 2014 (more than half
0
,000 50
100,000
150,000
200,000
250,000
2004 2005
2006
2007
2008 2009
2010
2011
2012
2013
2014
EB- 2 ‐
EB- 3 ‐
of visas awarded in the employment-based preference were awarded to
highly skilled immigrants and their dependents). Thus, temporary visas
have driven highly skilled immigration in employment categories during
this period.
Figure 25: Highly Skilled Immigrants: Employment LPR (EB-2 and EB-3)
& H-1B
Source: DHS Immigration Statistics
Family-based and Employment-based Visas for Legal Permanent
Residency: Waiting Lists and Visa Backlogs
I make reference in this section to the two paths to legalization in
the permanent immigration system, family and employment, and how
the problem of waiting lists and visa backlogs impacts highly skilled
0
,000 50
100,000
150,000
200,000
250,000
300,000
350,000
2,004 2,005 2,006 ,007 2 2,008 2,009 2,010 ,011 2 2,012 2,013 2,014
EB- 2 ‐
EB- 3 ‐
H- 1B ‐
immigrants’ global mobility, and how that affects the process of
attaining legal permanent residency differently, based on national origin
and region of the world. For example, immigration lawyer Cyrus Mehta
(2016) pointed out in his blog “The Insightful Immigration Blog” that
due to waiting lists and visa backlogs, a highly skilled immigrant with
sponsorship from a U.S. employer in the employment-based third
preference (EB-3) would wait 60 years to get a green card. David Bier
(2016) pointed out that there are between 230,000 and two million
workers in the India EB-2 and EB-3 (for highly skilled immigrants)
backlogs.
The National Visa Center at Portsmouth, New Hampshire, published in
November
2015 their “Annual Report of Immigrant Visa Applicants in the Family-
sponsored and Employment-based preferences”. The report includes
the number of persons on waiting lists in both the family and
employment categories, for initial applicants and dependents, and who
applied from abroad. The report does not include people whose
application was filled to adjust their status while residing in the U.S.
and are on waiting lists; the DHS does not provide these data. As a
result, the numbers used in this section underestimate the total number
but, nonetheless, it is useful to consider these figures, because they
give a picture of the trend and the countries and regions of the world
more affected by visa backlogs and waiting lists.
Family-based visas for permanent residency for immediate
relatives of U.S. citizens are uncapped, so these preferences do not
experience the waiting lists and visa backlogs that occur with the
immediate relatives of legal permanent residents, brothers and sisters
of U.S. citizens, or highly skilled immigrants that apply to attain legal
permanent residency through employment. Table 1 shows the
applications being processed in January 2016 for family-based visas for
those who are initial applicants and those who adjust their status
because they hold a temporary visa. For example, as Table 1 shows, a
legal permanent resident from India who filled out an application in
January 2016 in the second preference for his/her spouse (under
adjustment of status) was placed on a waiting list because the last
applications being processed in January 2016 under this category for
applicants from India are those applications that were filled out not
after June 15, 2015.
Table 1: Family-Based Visas: Date Currently Being Processed
for Initial and Adjust Status
Family-
Sponsored
All China-
mainland
born
India Mexico Philippines
F1 Initial
Adjust
Status
7/8/2008
10/1/2009
8/7/2008
10/1/2009
8/7/2008
10/1/2009
1/1/1995
4/1/1995
11/1/2003
10/1/2005
F2A Initial
Adjust
Status
10/1/2014
6/15/2015
10/1/2014-
6/15/2015
10/1/2014
6/15/2015
6/8/2014
6/15/2015
10/1/2014-
6/15/2015
F2B Initial
Adjust
Status
5/15/2009
10/15/2010
5/15/2009-
10/15/2010
5/15/2009-
10/15/2010
10/8/1995-
4/1/1996
2/1/2005-
5/1/2005
F3 Initial
Adjust
Status
10/1/2004-
8/1/2005
10/1/2004-
8/1/2005
10/1/2004-
8/1/2005
10/8/1994-
5/1/1995
11/22/1993-
8/1/1995
F4 Initial
Adjust
Status
6/8/2003-
5/1/2004
6/8/2003-
5/1/2004
6/8/2003-
5/1/2004
4/1/1997-
6/1/1998
8/8/1992-
1/1/1993
Source: DHS Visa Bulletin, February 2016
For FY 2016, the number of visas available was around 226,000 in
the family-sponsored preference and around 140,000 in the
employment-based preference. For family-sponsored visas, and only for
initial applicants from abroad (the data do not include those who are
currently in the country and will adjust their status) there are fifteen
countries with the highest number of waiting list registrants in FY
2016, which together compose 81 percent of the total. Each country
included on the list has at least 50,000 persons on the waiting list. The
waiting list occurs because in a single fiscal year each country cannot
receive more than seven percent of the total visas awarded. For FY
2016, that seven percent will represent around 25,620 visas. The
fifteen countries with the highest number of persons on waiting lists in
the family preference are Mexico (1,344,429), the Philippines (417,511),
India (344,208), Vietnam
(282,375), Mainland China (260,265), the Dominican Republic
(207,406), Bangladesh
(183,159), Pakistan (131,465), Haiti (119,696), Cuba (115,208), El
Salvador (82,045), Jamaica (58,368), Iran (53,306), South Korea
(52,887), and Peru (51,772); with all remaining countries having
851,921 on waiting lists. The total number is 4,556,021 (Figure 26).
Figure 26: Top 15 Countries in Waiting List Abroad in Family-Based
Preference for FY 2016
Source: DHS Immigration Statistics.
According to the DHS Visa Bulletin for February 2016,
applications for both initial and adjustment of status for employment-
sponsored visas for highly skilled immigrants (2nd and 3rd preference)
are oversubscribed for China, India, Mexico, and the Philippines. Highly
skilled immigrants from these countries will be placed on waiting lists.
Table 2 exemplifies the date of the applications that are being
processed in January 2016 for each country in both the initial and
adjust of status categories. For the second preference, a highly skilled
immigrant from India who in January 2016 applied for LPR from abroad
was placed on a waiting list because the applications being processed in
January are those filled out before August 1 2008. While someone who
applied in January 2016 for LPR but in the adjustment of status
category was placed on a waiting list because the applications being
processed in January are those filled out before February 8, 2008.
Table 2: Employment-based Visas for Highly Skilled Immigrants:
Date Currently Being Processed for Initial and Adjust Status
Employmen
t-
Sponsored
All China-
mainland
born
India Mexico Philippines
2nd
preference
Initial
Adjust
Status
3/1/2012
2/1/2012
8/1/2008
2/8/2008
3rd
preference
Initial
Adjust
Status
10/12015
10/1/2012
7/1/2012
6/15/2004
5/15/2004
10/1/2015
10/1/2015
1/8/2008
11/1/2007
Source: DHS Visa Bulletin, February 2016
As happened with the number for family-based visas, the numbers
in the figures below understate the total number in the employment-
based preference because it only counts those applicants who applied in
a U.S. embassy or consulate overseas. It does not count the applicants
who are in the U.S. and apply to adjust their status from a temporary
visa. Also, the numbers in the employment waiting lists count workers
but also their spouses and children. Yet, though the numbers represent
only a part of the total applicants, they show the direction of the trend.
The number of persons on waiting lists for the total number of
LPRs awarded under the employment-based preference and for the two
categories for highly skilled immigrants (EB2 and EB3) show that both
categories for highly skilled immigrants combined concentrate more
than 60 percent of the total persons on waiting lists. The third
preference is the category that concentrates the higher number of
highly skilled immigrants on waiting lists compared to the second
preference (Figure 27). For all the categories in the employment-based
preference, the number of persons on waiting lists is: first preference:
3,474; second preference 11,440; employment third: 67,792 (total,
highly skilled, 61,584, and other workers, 6,208); fourth preference:
379; fifth preference: 17,662. Total: 100,747.
Figure 27: Number of Persons on Waiting Lists Abroad for
Employment-based LPR
Total and Highly Skilled (EB2 and EB3) in FY 2016
Source: DHS Immigration Statistics.
In FY 2016, in category of employment-based permanent visas, the
top five countries with the highest concentration of persons on waiting
lists for the second preference are India
(7,646/66.8 percent), South Korea (964/8.4 percent), Mainland China
(893/7.8 percent), the Philippines (379/3.3 percent), Iran (168/1.5
percent), with all remaining countries having 1,390 persons, or 12.2
percent of the total number on waiting lists. The worldwide total is
11,440 (Figure 28).
Figure 28: Top Countries with Persons in Waiting List Abroad for
EB2 in FY 2016
0
20,000
40,000
60,000
80,000
100,000
120,000
EB2 EB3 Total
Source: DHS Immigration Statistics.
The top five countries representing the largest number of
individuals on waiting lists for the third preference in FY 2016 are the
Philippines (28,102/45.7 percent), India (21,590/35.1 percent),
Mainland China (1681/2.7 percent), South Korea (1,379/2.2 percent),
Great Britain and Northern Ireland (1047/1.7 percent), with all
remaining countries representing 7,785, or
12.6 percent of the total. The worldwide total is 61,584 (Figure 29).
Figure 29: Top Five Countries with Persons in Waiting List
Abroad
for EB3 in FY 2016
0
,000 2
,000 4
,000 6
8,000
10,000
12,000
India South Korea China Philippines Iran Others Total
Source: DHS Immigration Statistics.
The highest concentration of highly skilled immigrants on waiting
lists for all the preferences in the employment-based category is in Asia,
which concentrates around 90 percent of persons on waiting lists. The
number of persons on waiting lists for all the preferences of the
employment-based visas by region is Asia, with 90,922; North America,
3,377 (includes Canada, Mexico, Central America and the Caribbean);
Europe, 3,353; South America, 1,805; Africa, 1,106; Oceania, 184.
Employment total: 100,747 (Figure 30).
0
,000 10
,000 20
,000 30
40,000
50,000
,000 60
,000 70
Figure 30: Region of the World with Persons in Waiting List
Abroad in FY 2016
Source: DHS Immigration Statistics.
The numbers in figures 28, 29, and 30 do not represent the total
number, however, because the data provide information about the
applicants abroad but not those in the U.S. However, they give an idea
of the trend, and which countries and regions have the highest or
lowest number of applicants on waiting lists. Also they illustrate how
the problem of visa backlogs and waiting lists affects highly skilled
immigrants differently depending on which country or region of the
world they come from.
Conclusion
0
,000 20
40,000
,000 60
,000 80
100,000
120,000
Asia North
America
Europe South
America
Africa Oceania Total
The aim of the chapter was to illustrate with quantitative data the
two most important trends on highly skilled immigration since the
1990s. On one hand, the growth of temporary highly skilled
immigration, and on the other hand, the growth in the number of LPRs
that adjusted their status vis-à-vis new arrivals, and the extent to which
this difference is even more dramatic in the case of the number of
highly skilled immigrants that adjusted their status vis-àvis new arrivals
in the employment-based preference for highly skilled immigration. If
highly skilled immigrants adjusted their status to LPR, it means, first,
they were already in the U.S., and second, they had previously been in
the U.S. on a temporary visa. Therefore, immigration has become a
multi-step process for highly skilled immigrants: first, immigrants have
temporary legal status, or no legal status, and in subsequent stages
achieve legal permanent residency.
Also, the aim was to illustrate why the family-based and employment-
based permanent
visas discriminate by countries and regions of the world, using data
regarding waiting lists and visa backlogs. Additionally, the aim was to
illustrate how globalization has driven the growth of highly skilled
immigration in recent decades in the U.S. and the increase in
international students. Those highly skilled immigrants that came to the
U.S. came from countries and cities that were immersed in the new
conditions that globalization entailed. They come from dynamic centers
where specific industries are growing, and these industries are
precisely those in which highly skilled immigrants work in the U.S. One
example is the case of the pharmaceutical industry, a sector with a
large number of highly skilled immigrants working in the U.S. These
highly skilled immigrants come from countries and cities with an
expanding pharmaceutical industry.
Highly skilled immigrants enter certain occupations and industries
associated with the current phase of globalization, such as information
technology. A study in depth of the penetration of highly skilled
immigrants in science, engineering, technology, and math (STEM) fields
eloquently describes this pattern. But also the same trend occurred in
other fields, such as healthcare and related services, or the
pharmaceutical industry. On the other hand, globalization caused the
upsurge in U.S. companies’ demand for highly skilled immigrants. An
analysis of the industries and occupations represented by all labor visas
awarded to highly skilled immigrants exemplifies that visas for highly
skilled immigrants are allocated, primarily, among information
technology industries.
References
American Community Survey Report, 2007.
“Characteristics of H-1B Specialty Occupation Workers,” Annual
Reports to Congress elaborated in the Department of Homeland
Security from FY 2003 to FY 2014.
“U.S. Lawful Permanent Residents,” Annual Reports from FY 2002 to FY
2014. Department of Homeland Security, Immigration Statistics.
L-1 Workers in the U.S. Global Workers Justice Alliance.
Excel tables from Immigration Statistics at the Department of
Homeland Security.
National Science Foundation Scientists and Engineers Data System.
Anderson, Stuart. “The Contribution of Immigrants to Cancer Research
in America,” National Foundation for American Policy, February 2013.
Brotherton, David and Philip Kretsedemas eds. Keeping Out the Other: A
Critical Introduction to Immigration Enforcement Today (Columbia
University Press 2008).
Chakravartty, Paula. “Symbolic Analysts or Indentured Servants? Indian
High-Tech Migrants in America’s Information Economy” in Smith, Peter
and Adrian Favell eds. The Human Facer of Global Mobility:
International Highly Skilled Migration in Europe, North America, and
the Asia-Pacific (Transaction Publishers 2006).
Espenshade, Thomas. “High-end Immigration and the Shortage of
Skilled Labor,” Population Research and Policy Review 20: 135-141,
2005.
Golash-Boza, Tanya. Immigration Nation: Raids and Deportations in
Post-9/11 America (Paradigm Publishers 2012).
Gonzales, Roberto G. “Learning to Be Illegal: Undocumented Youth and
Shifting Legal
Contexts in the Transition to Adulthood,” American Sociological Review
2011, 76(4): 602–619.
Hall M., Singer A., De Jong G.F., Roempke Graefe D “The Geography of
Immigrants Skills: Educational Profiles of Metropolitan Areas,”
Brookings Institute, June 2011.
Hira, Ron. “Top 10 H-1B Employers Are All IT Offshore Outsourcing
Firms,” August 22, 2016. Economic Policy Institute Blog.
Hohn, Marcia, Justin Lowry, James C. White, and Jose Ramon
Fernandez-Pena. “Immigrants in Health Care,” June 2016.
Kirkegaard, Jacob. “High-Skilled Workers: Stagnating in the United
States, Rising Fast in
Other Countries?” In Accelerating decline in America's high-skilled
workforce: implications for immigration policy (Peterson Institute for
International Economics, Washington, DC, 2007).
Ji, Qingqing and Jeanne Batalova. “Educated Immigrants in the United
States,” Migration Policy Institute, August 2012.
Lan, Flora, Katherine Hale and Emilda Rivers,.“Immigrants’ Growing
Presence in the U.S. Science and Engineering Workforce: Education and
Employment Characteristics,” 2015.
Lee and Zhou. The Asian American Achievement Paradox (Russell Sage
Foundation 2015).
Martin, Susan. A Nation of Immigrants (Cambridge University Press
2011).
Massey, Douglas and Nolan Malone. “Pathways to legal immigration,”
Population Research and Policy Review 21: 473-504, 2002.
Min, Pyong Gap, and Sou Hyun Jang. 2014. “The Concentration of Asian
Americans in STEM and Healthcare Occupations.” Ethnic and Racial
Studies 37.
Rincón, Lina. “The Fruits of the “Dot Com”: The Migration and
Integration Processes of Colombian and Puerto Rican Software
Engineers in the United States.” Unpublished paper.
Ruiz, Neil G. “The Geography of Foreign Students in U.S. Higher
Education: Origins and Destinations,” Brookings Institute 2014.
Singer, Audrey. “Immigrant Workers in the U.S. Labor Force,” Brookings
Institute 2012.
Smith, Peter and Adrian Favell eds. The Human Facer of Global Mobility:
International Highly Skilled Migration in Europe, North America, and
the Asia-Pacific (Transaction Publishers 2006).
Ruhs, Martin. The Price of Rights (Princeton University Press 2013).
Wolgin, Philip. Beyond National Origins: The Development of Modern
Immigration Policymaking: 19481968. Dissertation Department of
History, Berkeley University, 2011.
Chapter Five Entrepreneurial Ethos and Privatization of Risk:
Highly Skilled Immigrants’ Legal Paths to Legal Permanent
Residency
Introduction
In this chapter, based on thirty semi-structured, hour-long
interviews, I analyze the narratives highly skilled immigrants gave
about their legal trajectories since their arrival in the United States. My
aim is to understand how highly skilled immigrants navigate the multi-
step legal path that involves a variety of legal statuses, and even
sometimes no legal status, before an immigrant achieves legal
permanent residency. This is an understudied topic in the literature on
legal immigration. The only work that has analyzed it was published by
Massey and Malone (2002). The authors point out there are seven paths
to achieving legal permanent residency for green card holders based on
their previous visa status. The starting points on the path to legalization
are new arrivals, illegal border crossers, visa abusers, non-resident
visitors, temporary workers, students/exchange visitors, and
refugees/asylees. The New Immigrant Survey is one of the few surveys
that provide data about which visa green card holders had before
becoming legal permanent residents. The statistics from the
Department of Homeland Security indicate the number of immigrants
who adjusted their status when they achieved legal permanent
residency but it does not offer data on which visa they come from. Thus,
Massey and Malone (2002) provide important data about immigrants’
different pathways to legalization.
My aim is to expand on what Massey and Malone (2002) pointed
out and to focus on an understudied approach and topic. The problem
with Massey and Malone’s paths to legalization is that their data are
based on a cross-sectional survey and only include those who have been
successful in obtaining green cards. Thus the authors provide a static
and institutional picture. The paths to legalization are based on which
visas immigrants were assigned by the government before becoming
legal permanent residents. The story does not tell us much about the
trajectory of immigrants’ legal process and the role immigrants had in
shaping this trajectory. It does not tell us much about immigrants’
agency in shaping their legal trajectory.
As I explained in prior chapters, the proliferation of temporary
legal statuses has made highly skilled immigration a multi-step
process. The interviews with highly skilled immigrants allowed me to
ratify this trend, but, more importantly, illuminate a phenomenon
previously unseen by the scholarly literature and by my own research
before conducting the interviews: highly skilled immigrants play a
fundamental role in shaping their own legal trajectories. The
argument in the chapter unfolds in three parts. First, drawing from
Neff’s work on venture labor in high-tech industries, I suggest two
terms that explain the making of highly skilled immigrants as legal
permanent residents: entrepreneurial ethos and privatization of risk.
Second, I describe the variety of temporary visas highly skilled
immigrants held before achieving LPR in the employment-based and
family-based categories, and for those who selfsponsored their LPR. I
also present demographic data about the highly skilled immigrants
interviewed. Finally, in the discussion section, I analyze immigrants’
three paths to legalization, based on the narratives highly skilled
immigrants gave about their legal trajectories, in light of the two terms
that I suggest explain immigrants’ agency in building their legal
trajectory: entrepreneurial ethos and privatization of risk.
Entrepreneurial Ethos and Privatization of Risk
Neff defines venture labor as “the investment of time, energy,
human capital and other personal resources that ordinary employees
make in the companies where they work. Venture labor is the explicit
expression of entrepreneurial values by non-entrepreneurs. Venture
labor refers to an investment by employees into their companies or how
they talk about their time at work as an investment. When people think
of their jobs as investment or as having a future payoff other than
regular wages, they embody venture labor. Venture labor is the way in
which people act like entrepreneurs and bear some of the risks of their
companies. Venture labor includes the entrepreneurial aspects of work
– how people behave as if they have ownership in their companies, even
when they are not actual owners. Venture labor is about people taking
risks for their jobs, as much as it is about their subjective embrace of
that risk” (Neff 2012: 1617).
Many scholars have theorized about the place of risk in late
modern societies and how technology and science, instead of bringing
comfort and security, have increased the production of risk as an
unintended consequence of the development of these forces (Giddens
1990, 1991; Beck 1992, 2006; Jarvis 2007). Beck writes, “the theory of
world risk society addresses the increasing realization of the
irrepressible ubiquity of radical uncertainty in the modern world. The
basic institutions, the actors of first modernity - science and expert
systems, the state, commerce and the international system, including
the military - responsible for calculating and controlling manufactured
uncertainties are undermined by growing awareness that they are
inefficient, their actions even counter-productive (…) Radicalization of
modernity produces this fundamental irony of risk: science, the state
and the military are becoming part of the problem they are supposed to
solve” (Beck 2006: 338).
Neff (2012) points out that the entrepreneurial ethos and
acceptance of entrepreneurial risks within jobs was not the norm before
the dot-com boom. The new economy shifted social uncertainty and
insecurity from companies and the economy to the individual’s ability to
take calculated risks. Unlike Beck’s understanding of risk, Neff
specifies that risk in this context does not have negative connotations.
Risk is associated with challenging, fulfilling, and rewarding work. Risk
is a choice. Risk and lack of job security are valued.
I draw from Neff’s explanation and analysis of venture labor in
high-tech industries to analyze the place of highly skilled immigrants’
agency in building their legal trajectory to becoming legal permanent
residents. Highly skilled immigrants act as entrepreneurs of their own
legal trajectories. In a context of legal uncertainty and an indeterminate
timeframe for achieving legal permanent residency, highly skilled
immigrants embrace an entrepreneurial ethos and accept risk to build
their legal trajectory, because it is both rewarding but also vital for
their work and family experience in the United States. Work and career
decisions, family decisions are intertwined with legal decisions. Highly
skilled immigrants know there is an inherent risk in building their legal
trajectory, because it requires an investment of time and capital but
also the psychological and emotional ability to make decisions under
institutional and legal constraints and endure uncertainty. Some highly
skilled immigrants are able to build their legal trajectory in such a way
that anticipates future fluctuations in work and family life. For others
their legal trajectory is more reactive to unanticipated fluctuations in
their work and family life. The different legal statuses highly skilled
immigrants go through in their legal trajectory are an indication also of
a deeper commitment and a deeper certainty about their life in the
United
States.
Just as venture labor was not the norm before the dot-com boom,
highly skilled immigrants’ agency and embrace of entrepreneurial
values and behavior in building their legal trajectory are also a recent
phenomenon. This phenomenon emerged simultaneously with the
growth of temporary legal statuses and the multi-step legal process
highly skilled immigrants must navigate to achieve legal permanent
residency. When immigrants’ time is devalued, due to the uncertain
timeframe for immigrants’ temporary legal status, risk is a constitutive
component of the legal trajectory. When the immigration law
substitutes legal and temporal certainty with undefined temporal and
legal uncertainty, privatization of risk occurs, because the brunt of risk
shifted from the economy, the employer, or the government to the
highly skilled immigrants themselves. Ignacio, an economist and
scholar and truly global immigrant who does not face constraints to his
mobility, mentioned something during his interview that I found very
insightful for the purpose of the argument I want to make. After
completing his education in South America and Europe, Ignacio held a
variety of visiting faculty positions in the United States, for which he
had a J1 visa as visiting scholar. He was offered a faculty tenured
appointment in the U.S. and began with an H-1B temporary work visa.
After a couple of years he applied for permanent residency, and a
couple of months later he and his wife received their green cards. The
university where Ignacio was working was very supportive, and
encourages faculty to apply for green cards as soon as possible, instead
of waiting until the end of the six years that a highly skilled immigrant
can remain on an H-1B temporary work visa.
I asked Ignacio why he applied for legal permanent residency
considering that he had his temporary work visa for four more years.
Ignacio is an economist, and his answer corresponded with the thinking
of an economist. He pointed out, “the job was tenured and the pay was
high; it was risky to have a temporary legal status.” Ignacio is a global
immigrant. He represents what the literature defines as a cosmopolitan
and professional elite. However, even someone with his privileges and
capabilities for mobility knows that he, as immigrant, needs to minimize
the risks inherent in having temporary legal status and navigating a
multi-step legal process.
Why do highly skilled immigrants embrace an entrepreneurial ethos
and privatization of
risk, with agency to define the path of their legal trajectory as a
consequence of the growth of temporary legal statuses and the multi-
step legal process to achieve legal permanent residency? There are
three main reasons, which will be explored at length in the discussion
of highly skilled immigrants’ legal trajectories: first, because legal
status does not constitute a mere administrative category to enter the
country but constitutes the foundation for immigrants’ work and family
life in the country; second, because of the contingencies highly skilled
immigrants encounter in the industries in which they work; and third,
because of the intrinsic limitations of U.S. immigration visas for highly
skilled immigrants, their lack of flexibility, and the inadequacy of
immigration labor programs (temporary as well as permanent) that give
an answer to labor market and highly skilled immigrants needs.
Demographic Data and Temporary Visas
Between August and November 2016, I conducted thirty semi-
structured interviews with highly skilled immigrants of approximately
one hour each. Since not all of the highly skilled immigrants I
interviewed live in the Northeast (all of them live in the United States),
interviews were conducted either in person or using Skype. I conducted
the interviews in Spanish and English. I found my interview subjects in
the first place by asking my personal contacts whether they were
willing to participate in the research or whether they could put me in
touch with a highly skilled immigrant who fits under the characteristics
I outlined. Using the snowball technique, I asked each of the
interviewees whether they could connect me with one or two highly
skilled immigrants of their acquaintance. The response rate was high
when I contacted highly skilled immigrants directly or through a third
person they knew well. But it was very low when I sent random
messages through Facebook. Many of the interviewees agreed to be
interviewed because they either knew me or knew the person that put
them in contact with me. My perception is that because of the nature of
this kind of interview, which is not very private or intimate but does
discuss issues that may be sensitive or personal involving an
immigrant’s legal trajectory, and also because of their busy schedules,
highly skilled immigrants are a difficult group to reach without a
reliable informant who serves as the liaison between the researcher and
the interviewee.
The sample includes a variety of nationalities and industries
because I want to understand highly skilled immigrants’ path of
legalization to achieving legal permanent residency without analyzing
only particular nationalities or industries. This is an important research
question, which I plan to develop further after I conclude this research.
But for this research my aim is to represent a variety of nationalities or
industries because of the inherent biases some industries or
nationalities would add to the sample. To give an example, China and
India are two countries whose nationals experience visa backlogs and
waiting lines for green cards, and the information technology industry
comprises the majority of temporary visas and as such is highly affected
by specific visa problems that pertain to the industry. I include these
cases, but I try to represent the variety of legal experiences highly
skilled immigrants go through to achieve legal permanent residency
without giving these cases so much weight in the sample as to skew my
analysis.
Among the thirty interviewees, twenty are men and ten are
women. Their countries of birth are placed in South America, Europe,
and Asia. The sample is largely divided between interviewees who are
between 20 and 39 years old (12); between 40 and 54 years old (14);
and older than 55 years old (4). The industries in which they work are
finance, culture and performance arts, humanitarian organizations,
fashion and design, information technology, hospitality, engineering and
sciences, and universities.
Their educational levels are: bachelor’s (all of them), master’s
(19), doctorates (15). All of the highly skilled immigrants with Ph.D.
degrees studied in the U.S. except two who studied in their home
country and came to the United States for the first time to pursue a
postdoctoral position in a university or a private institute, and one who
took the Ph.D. in Europe. All of the interviewees held the equivalent to
bachelor’s degree from their country of origin except three who have
been in the United States since they were teens, and one since she was
a child. Fourteen acquired green cards through the family-based
category – nine by marrying a U.S. citizen, and five through other family
relationships. Nine highly skilled immigrants applied for green card
through the employment-based category –one participant’s application
was still pending because had recently applied. Five participants self-
sponsored the green card. And two of them have temporary work legal
status and plan to apply for legal permanent residency. All of them held
temporary legal status/es before achieving legal permanent residency.
The temporary visas include different student visas F1/OPT (student
visa and work permission after graduation) or J1 (Fulbright students);
work visas J1 (exchange workers), H-1B (specialty occupations), O-1
(exceptional abilities), L-1 (intracompany transferee), J2 (dependent of
J1 with work permission), F2 (dependent of F1 with work permission on
campus); and DACA program; tourist visa and K fiancé visa. A few had
undocumented spells.
Nine (30 percent) of total participants acquired LPR through
employment (EB2 preference) – one participant’s green card application
is still in process. Two (six percent) participants have temporary visas
and will apply for LPR. Five (17 percent) participants selfsponsored
their LPR, in the preference EB1 (3) and in the preference EB2-NIW (2).
Fourteen (47 percent) of the immigrants interviewed had a variety of
visas until applied for LPR through family-sponsored visas. Among
them, nine (30 percent) participants acquired
LPR by marrying a U.S. citizen, five (17 percent) interviewees were
sponsored by their parents. Two participants have their legal
permanent residency still pending because were placed in waiting list
(one is from Asia, the other is from Latin America).
Discussion Section
The variety of temporary visas interviewees had reveals a key
element of immigrants’ legal trajectory toward legal permanent
residency. Both employment-sponsored and familysponsored visas are
multi-step processes: highly skilled immigrants have temporary legal
statuses, or no legal status, before achieving legal permanent residency.
In the prior section, I described the different temporary visas
immigrants had and the number of years immigrants spent with
temporary legal status. In this section, I will present a discussion about
time that goes beyond the number of years. Given that highly skilled
immigrants have either temporary legal status or no legal status before
achieving legal permanent residency, the principle behind immigrant
time has changed. As Cohen (2015) points out, immigrant time is
devalued by uncertainty, since the number of years immigrants need to
achieve legal permanent residency are no longer fixed.
The legal trajectories highly skilled immigrants follow are subject
to work, family, and legal contingencies. This is why immigrants’ agency
in building their legal trajectory has become more prominent. In a more
stable, predictable, and pre-defined legal trajectory, immigrants’ agency
in building their legal trajectory would lose prominence and become
less necessary, because the government, family, or employer builds
immigrants’ legal status institutionally. With the retrenchment of the
main institutions that participate in highly skilled immigrants’ legal
trajectory, mainly the government through its immigration laws, but
also including the family, and employers, highly skilled immigrants’
agency in building their path to legalization has become essential for
immigrants to navigate their legal trajectory. This is why I suggest the
terms entrepreneurial ethos and privatization of risk to explain how and
why highly skilled immigrants build their trajectories to achieve legal
permanent residency. Entrepreneurial ethos refers to the shift that
occurred in immigrants’ cognitive understanding of how legal status is
achieved. The government, through its immigration laws, sets up the
parameters for each legal status, and as such, constitutes a constraint
that immigrants have to adjust to. However, immigrants know that their
agency is vital for them to overcome contingencies in their path to legal
permanent residency. As a matter of fact, becoming proactive actors in
building their legal trajectory is the only means highly skilled
immigrants have to preserve legal status when they face work or legal
contingencies. This leads to the second term I suggest, privatization of
risk, which refers to the shift in who bears the risks inherent to building
highly skilled immigrants’ legal trajectory in a context of legal
uncertainty and instability. Instead of the economy, employers, and the
government, the risk has shifted to highly skilled immigrants
themselves. Risk constitutes an intrinsic characteristic of highly skilled
immigrants’ legal trajectory until they achieve legal permanent
residency.
These two shifts, therefore, force immigrants to invest in their
legal trajectory. In a context of uncertainty, undefined time, and
unexpected work and family contingencies, highly skilled immigrants
see themselves as entrepreneurs of their legal trajectory. They are
willing to invest time, capital, and take decisions under pressure and
without certainty of the outcome. In other words, they are willing to
assume risk; a risk that became privatized because its consequences lie
only on immigrants’ shoulders. Neither the government nor the
employer shares the costs and consequences of a contingent and
uncertain trajectory towards legal permanent residency.
How do highly skilled immigrants build their legal trajectory?
What are the work, legal, or family contingencies highly skilled
immigrants face in building their legalization path? Based on the
narratives highly skilled immigrants told me about the legal trajectories
described in the prior section, I identified immigrants follow three
distinct legal paths to legalization. These paths to legalization are not
fixed, or pre-established by immigration laws, but are organized based
on the contingencies and fluctuations immigrants’ face in their path to
legalization to LPR. I include in these three paths the twenty-eight
participants that already acquired legal permanent residency and the
two participants who have still work temporary visas and will apply for
LPR. The first legalization path, followed by ten participants (33
percent) is a smooth and linear path. Though risk and uncertainty are
embedded in legalization paths toward legal permanent residency, this
does not imply that all the immigrants face contingencies or constraints
in their legal trajectory. In this legal path, highly skilled immigrants do
not face either legal or work fluctuations. As a consequence, the
legalization path to legal permanent residency is linear and
uninterrupted. A second legalization path is the path followed by fifteen
(50 percent) immigrants who face contingencies in either work or legal
situation. Contingencies in work situation, such as loss of job or
difficulties finding an employer that sponsors work visas, affect highly
skilled immigrants legal trajectory. Some legal contingencies
immigrants face are related to immigration laws, administrative
procedures, or visa backlogs and waiting lists for some nationalities. A
third path to legalization is the autonomous path, which was followed
by five participants (17 percent). This is a path that like the second one
was followed by immigrants who face work or legal contingencies. But
what distinguishes this path from the second legalization path is that
highly skilled immigrants self-sponsor their green card. This is a
possible but unlikely legalization path for the majority of highly skilled
immigrants because special procedures and features are required to
apply for a green card. Highly skilled immigrants’ work needs to be
considered of national interest, and immigrants need to have
exceptional abilities in sciences, arts, and culture. Thus it is not a legal
path that all highly skilled immigrants can follow. However this is a path
that immigrants in certain industries and fields are increasingly
adopting and are forced to choose because of the difficulties they face
getting employment sponsorship for their temporary and permanent
work visas, or because they need to regularize –that is, make it
permanent- their legal situation for them and their family.
Tables 3 synthesizes the strength of the two coined terms,
entrepreneurial ethos and privatization of risk, in each path to
legalization, and table 4 shows the work and legal contingencies highly
skilled immigrants face in each path to legalization, which will be
discussed at length in the next section.
Table 3: Highly Skilled Immigrants Legal
Trajectories
1st Path 2nd Path 3rd Path
Entrepreneurial Ethos
Weak
Strong
Str
ong
Privatization of Risk
Weak
Strong
Str
ong
Table 4: Highly Skilled Immigrants Legal Trajectories:
Work and Legal Contingencies
1st Legalization
Path
1) Smooth and linear legalization path. Immigrants
do not face substantive work or legal
contingencies.
2) Immigrant pays fees for visa application and
lawyer.
2nd Legalization
Path
1) Difficulties finding employer that sponsors work
visa:
a) Acceptance of job for which immigrant is
overqualified;
b) Placement in a job unrelated to skills and
occupation.
2) Loss of job: a) immigrant repairs legal situation
with a
variety of jobs and legal statuses; b) immigrant
repairs legal
situation but is undocumented during some period
of time
after loss of job.
3) Pending visa application due to visa backlogs
and long
waiting lists for certain nationalities in family and
employment categories.
4) Highly skilled immigrant begins path to
legalization being
undocumented (this is not an intrinsic feature of
this path but
a contingent factor that some immigrants face).
5) Immigrant pays fees for visa applications and
lawyer.
6) Immigrant is attached to visa sponsor
employer: when
he/she works for other employer, cannot receive salary.
7) Application for a temporary visa was not approved.
8) Complications in the green card application process.
3rd Legalization Path 1) Difficulties landing a job in which
employer sponsors work visas.
2) Employer does not sponsor permanent work visas.
3) Immigrant self-sponsors application for legal permanent
residency. Thus application follows a special and
cumbersome procedure, as immigrant has to
demonstrate extraordinary abilities in
sciences, arts, or culture; immigrant has to
apply for a national interest waiver, for which the
government and reference letters have to
provide evidence immigrant’s work and field fit
under the waiver.
4) Immigrant pays fees to apply for legal permanent residency
and lawyer.
5) Immigrants’ spouse needs a visa to work so immigrant
cannot apply for H-1B visa.
Immigrants’ Narratives on Legal
Trajectories
1) Legalization path does not face contingencies in work and family
life
This is a legalization path in which highly skilled immigrants hold
a variety of temporary legal statuses before achieving legal permanent
residency. Ten (33 percent) of the thirty highly skilled immigrants
interviewed followed this path. Six of the participants acquired legal
permanent residency through the family-based category (four by
marrying a U.S. citizen, and two by their parents, as unmarried children
under 21 years old). Five of the participants acquired green card
through employment; the green card for one of them is still in process
because he applied in 2016. I will focus on the legal trajectory of three
of them, whose cases are representatives of the variety of legal
trajectories in this path: Martín, Pablo, and Agustín. Martín came to
the U.S. from Latin America with an L1 visa, as a managerial
intracompany transferee. He came to work at one of the major
American multinational technology companies in a managerial position,
eventually rising to become the company representative for one of their
world regions. He held the L1 visa for several years, until the company
sponsored the green card for him, his wife, and children. Almost as
soon as he was eligible, he applied for citizenship. Throughout the
process, Martín did not experience any kind of fluctuations in his legal
status for him and his family. But his case is important to highlight how
each legal status he and his family achieved represented for them a
stronger commitment for living in the country. When he came to the
U.S., with the L1 visa, he came with his wife
and young children, “we did not come with the idea to reside
permanently in the U.S. The first year was pretty hectic; the second
year arrived very fast. The kids adapted very well. In fact, faster than
my wife and me. When I renewed my visa after three years, we had two
years more, but after we had to apply for legal permanent residency. It
was a process, we understood gradually much more American society
and less Latin American, and we began to think of US as a place where
to stay longer. Each formal step in our legal status had an effect on our
life here. We felt more and more settled. We gave a lot of importance to
these formal steps, and the last one and very important also was the
citizenship.” When he applied later for citizenship, he did it also for
personal reasons. He had lost his job due to layoffs that involved
thousands of employees. He was unemployed for about one year, and
when he decided to open his own American company, he also made the
decision to apply for citizenship, “I applied for citizenship when I
decided to open my own American company, but also because of my
children. If we decided to go back to Latin America, and eventually they
want to come to study here, they would have already citizenship, and
would not need to apply for any visa. I also wanted to have the right to
vote. At this stage of my life here, I understood less about politics back
home than here. But also I wanted to vote to be involved in public
affairs, like housing taxes, this is very important in the state where I
live.”
Pablo earned his bachelor’s degree and a master’s in humanities
in Latin America. He came to the U.S. to begin a Ph.D. program in
humanities. He initially had an F1 student visa, and one year later he
transferred to a new program in the same field but in a new university.
He held the F1 student visa for more than five years. Immediately after
Pablo graduated, he got a job in a university, which sponsored his H-1B
work visa. Pablo stayed more than three years in this university and
during that time he held the H-1B visa, “I never applied for legal
permanent residency because I did not feel the need. My temporary
legal status in a sense expressed an ontological inclination to feel more
comfortable in a temporary status. I was not even sure whether I
wanted to remain permanently in the country. The last years in the
region where I worked were not happy; I was not sure whether I
wanted to look for a new job in the U.S. or to return to my home
country. In fact, I applied for a job there. I felt more inclined to remain
in the U.S. when a job became available at the same university where I
had studied. That was my dream job for me, so I applied for and got the
job.” The university sponsored his green card, and requested a
premium processing service. Pablo has not applied for citizenship yet,
though he has held legal permanent residency status for more than five
years.
Agustín came to the U.S. from Latin America to pursue a Ph.D. in
humanities. He came to study with an F1 student visa, which he held for
more than five years. When he graduated, he got a job to work in the
program where he studied using the Optional Practical Training (OPT),
the work extension to work full time after graduation for F1 holders.
The following semester, he continued with the OPT but in a new
university and with a full time teaching position. That semester under
the OPT he learned the university would sponsor his H-1B visa, but
since it did not have a legal office to initiate the procedures for his visa,
he had to hire a lawyer to apply for it and also he had to pay the visa
fees himself. He did not experience any kind of interruption of his legal
status, but the situation was stressful for him because, as he mentioned
in the interview, “if I had not taken charge of my visa application, and if
I had not hired a lawyer, the university would not have initiated the
process and I would have lost the job.” After several years, when he had
already renewed the H-1B work visa, he got legal permanent residency
through marriage. Subsequently he became U.S. citizen.
Though highly skilled immigrants in this path did not experience
fluctuations in their legal trajectory because of contingencies in work or
family life, nevertheless the entrepreneurial ethos and privatization of
risk to build their legal trajectories is present, though to a lesser degree
than in the other two paths. Some highly skilled immigrants hire a
lawyer to apply for temporary visas or legal permanent residency. Some
of them also planned in advance with the lawyer which steps to follow,
what they should reinforce to make their application stronger, and
when to apply. Their legal trajectory was organized around their work
life, even for those who acquired a green card through marriage. Thus,
legal decisions were intertwined with family and work decisions. All of
them knew that building their legal trajectory implied an investment of
undefined time, energy, effort, and capital; it also involved risk.
2) Legalization path faces contingencies in work and family life
Like the first path toward legalization, this is a path in which
highly skilled immigrants have a variety of temporary legal statuses
before achieving legal permanent residency (two of them are still under
temporary legal status). These highly skilled immigrants’ legal
trajectories, however, are not linear because their legal status was
affected either by fluctuations in work and family life, and also due to
systemic problems in the immigration law, such as visa backlogs or
waiting lines for particular nationalities, and difficulties finding a job
that sponsors work visas. Highly skilled immigrants’ entrepreneurial
ethos is required in this path because they do not have any other option
and must be the entrepreneurs of their legal trajectory to remain in the
country. Fifteen (50 percent) of the highly skilled immigrants
interviewed followed this legalization path. Four of them acquired green
card through the employment-based category, while eight of them did it
through family-based category (five by marrying a U.S, citizen, and
three through their parents, though two of them have their green cards
still pending because of waiting lines for their nationalities, located in
Asia and Latin America. In the chapter, I will focus on five of them:
Valeria, Facundo, Eugenio, Cate, and Camilo. Each of them exemplifies
the variety of work and legal contingencies highly skilled immigrants
face in their legal trajectories on this path to legalization.
The contingencies highly skilled immigrants face in their legal
trajectory are: first, problems finding an employer that sponsors
temporary or permanent work visas. When this occurs, the immigrant
has to either remain in the same job because she or he cannot easily
find another job that sponsors the work visa, or he or she has to accept
a job in which the income and the job position is below his or her
qualifications. The second contingency commonly faced by immigrants
is job loss. In this case there are two possibilities: the immigrant can
navigate the system of retaining legal status during the whole period
with different jobs and visas, while working to achieve legal permanent
residency, or the immigrant experiences a period of time as
undocumented and works as undocumented, until he or she eventually
achieves legal permanent residency. The third contingency is a pending
application for a green card due to the immigrant’s nationality
experiencing long waiting lines and visa backlogs.
Fourth, the immigrant enters the country as an undocumented
immigrant.
Having difficulties finding an employer that sponsors temporary or
permanent work visas is a very common contingency highly skilled
immigrants face, across all the industries. The cases of Valeria and
Facundo exemplify this work contingency. Valeria has lived in the
U.S. a decade or more years. She obtained a degree in design in her
home country in Latin America. When she came to the U.S., she held
briefly an F1 student visa. Getting a job in her field in a firm is
complicated for an immigrant without a work visa because it is not a
common practice for design firms to sponsor a visa, more so when the
firm is small. Such firms do not know the legal procedures to follow,
much less possess a legal office to take charge of the legal procedures
to sponsor work visas. After having the F1 visa, Valeria held a work
temporary visa, “this job allowed me to avoid facing any fluctuation or
interruption in my legal status due to the difficulties to find a job that
could sponsor my work visa. Though my work was not related to design,
I was working on arts and culture, which was a field I was interested in
and enjoyed working on. I took also these years to complete two
master’s degrees and continued looking for a job in my field.” She was
offered a job in a design firm after holding the last temporary visa for
more than five years. She hired a lawyer because the firm did not
provide legal assistance to apply for her H-1B visa, although the firm
sponsored her visa. She also had to pay the fees for the H-1B visa. She
has had the H-1B visa for several years and she is planning to apply for
legal permanent residency before the visa expires for which she will
have to hire a lawyer and pay the fees for the green card application,
though once again her employer will sponsor her visa. Valeria also
pointed out, “I will apply for citizenship as soon as I can, because I feel
I have invested so much in the country while building my legal
trajectory. I invested time, effort, money and I feel citizenship will be
the final achievement after everything
I have invested in the country for my legal status.”
Like Valeria, Facundo also had problems finding a job with a
financial firm that would sponsor his work visa. Facundo holds a
bachelor’s degree from Latin America and a master’s from Europe. He
has dual citizenship and his applications for temporary and legal
permanent residency were completed using a European citizenship.
When he finished the master’s he had very good job offers in Europe
and Latin America, but he decided to come to the U.S. because his
girlfriend, later his wife, was American. Facundo spent almost one year
dedicated full time to get a job in the city where he wanted to work. He
works in the financial sector, and he faced two problems when looking
for a job: first to get a job offer but the second and most difficult
problem was to get a job that would sponsor his work visa, “some
companies offered me a job but told me the company would not sponsor
the work visa. I was even advised by a company that offered me a job to
get a visa from a different company and later transfer the visa to the
first company. I paid the fees and the lawyer. Getting the H-1B was very
hard. It was a painful process. But my girlfriend was here. I submitted
applications to around 100 companies. In some companies, I was told
the division where I was offered the job did not sponsor visas. In other
companies, I was told they had problems with the visa caps.”
Facundo’s girlfriend is American, but they were not at the stage of
the relationship yet to get married. Thus getting legal permanent
residency through marriage was not an option at the time he was
looking for his first job in the U.S. He finally got a job offer in a company
that agreed to sponsor his H-1B work visa. He accepted the job but the
tasks and the income were much below his skills and credentials. After
working for this company for about one year, he accepted a job in a
different company and transferred his H-1B work visa. In this new
company, the working conditions and the income were adequate for his
skills and work experience in the financial sector. Facundo said that the
new job was the equivalent, in terms of income and tasks, “to being
promoted four positions. I think in the first company they saw my
desperation and took advantage because I was offered a position below
my qualifications.” He got married several years later and got his H-1B
work visa, and applied for legal permanent residency a few years after
that. He started his own company and several years later he became a
U.S. citizen.
The second common contingency highly skilled immigrant face is
job loss. In this case, the immigrant can either navigate the system,
retaining legal status during the period after job loss with different jobs
and visas until he or she is able to achieve legal permanent residency,
or the immigrant experiences a period of time as undocumented after
job loss, and works as undocumented, before eventually achieving legal
permanent residency. I will exemplify these two options with one case:
Eugenio.
Eugenio came to the U.S. to work at one of the major global
multiplatform networks as a journalist. He held a bachelor’s degree
from Latin America and a master’s degree from Europe. For several
years his employer sponsored his H-1B work visa. Then, Eugenio lost
his job and thus also lost the sponsor for his H-1B visa and his first
green card application was dropped. When risk is privatized, as occurs
with a multi-step immigration, highly skilled immigrants who lose their
jobs face many legal difficulties that require the aid of a lawyer. For
example, since Eugenio was under a temporary legal status, he could
not count on a grace period to stay in the country after he lost his job,
not even a grace period of one week. This is why Eugenio had to accept
a job offer for which he was overqualified. He needed to hire a lawyer
because it is impossible for a highly skilled immigrant to rebuild his
legal trajectory without one. He needed an extension of his H-1B and
had to apply for a green card as well. After six years with the H-1B visa,
a highly skilled immigrant has to apply for legal permanent residency
and can extend the H-1B visa for one year while the green card
application is pending, “I was able to negotiate with the new employer
that I would pay the fees for the extension of the H-1B visa and the
green card application and the employer would sponsor me for both
visas. I worked in this job for several months, but the work conditions
were unsatisfactory, I felt frustrated, and when I got a second job offer I
quit the job.” Since he changed jobs, his green card application was
dropped. With his new employer, he had to apply again for legal
permanent residency and asked for a second extension of the H-1B visa
while the green card application was pending. In this job also he
negotiated with the employer that he would pay the fees for both visas
and the employer would sponsor his visas. He remained with that
company for more than one year until he got a job offer he accepted in a
different state. Again because he changed jobs, his application for a
green card was dropped. Eugenio was able to navigate and
successfully repair his legal status over two years because he hired a
lawyer to manage his difficult case. While the lawyer was expensive,
Eugenio saw this as an investment he needed to make to preserve his
legal residency in the U.S. Those years were very difficult both
professionally and personally, “I was pretty exhausted. I had good
colleagues and friends, but the work was terrible, a lot of mistreatment,
people very ignorant. I began to think to come back to my country of
birth. My family persuaded me not to do anything irremediable, the
situation in my country, as always, was bad. They convinced me to stay.
And I also remembered something that all the people I knew who had
lived in the US and came back to their country of birth said: they
regretted the decision three months later. I thought that after so many
sacrifices, I would stay here. I owe my friends and family I saved my
residency.” Several years later he got a job that he was willing to
accept. Since his green card application was dropped, his new employer
arranged the procedures to apply for a new extension of the H-1B visa
and for legal permanent residency. After less than a year, he got the
green card through the EB2 employment preference. Subsequently, he
became a U.S. citizen.
Another contingency highly skilled immigrants face is related to
immigration laws. As I explained in chapter two, particular nationalities
experience long waiting lines and visa backlogs when an immigrant
applies for legal permanent residency. This is what occurred with Cate,
who was born in Asia, and came to the U.S. to begin a Ph.D. She earned
a bachelor’s degree in her home country and a master’s in Europe. The
first visa she had was a F1 student visa, which she held until she
graduated. Cate got a job in a university immediately after she
graduated. She began in this job using the Optional Practical Training,
the one-year work permission after graduation for those who have a F1
student visa. For the second year in her job, she acquired an H-1B work
visa. But since her work contract is renewed annually, her visa also has
to be renewed annually because the employer cannot provide the
government with proof of employment beyond the one-year contract.
Later, Cate’s parent applied for legal permanent residency and
also applied for Cate’s legal permanent residency as an unmarried
daughter older than 21 years old. But since they are from an Asian
country with a lengthy queue, Cate was placed on a waiting list and her
green card application has been pending since then. After she applied
for legal permanent residency, “I was told my F1 visa would not be
granted if I have to renew it in abroad because my green card
application was pending. So until recently, I was not able to leave the
US, though I was able to extend my F1 visa and also apply for OPT
while residing in the U.S. I do not know how many years I will have to
wait for the green card because the only information the government
provides is the current date of the applications that are being processed
in my category and nationality.” Cate has currently an H-1B visa, she
can have this visa up to six years. But in a sense her legal status is
uncertain for her, because she does not know how many more years she
will need to have a temporary visa or when she will get legal permanent
residency. The government does not provide information on how many
applications they will have to process before her case.
Another contingency highly skilled immigrants face is related to
being undocumented. Camilo came to the U.S. from Latin America when
he was a teenager. He is undocumented and he has been in the country
for more than a decade. His family has applied for legal permanent
residency for him, “The first one was a few years after I first came to
the U.S. My family sponsored my application. But I was placed on a
waiting list because my country of birth has visa backlogs and long
waiting list of many years for family applications. A decade later, my
mother applied for my legal permanent residency again.” At the
moment of the interview, Camilo said that the work permission was
approved and he was told he would have a green card after some
months. Camilo mentioned in the interview, “I had to hire a lawyer in
order to navigate my legal status. I finished high school in the U.S. I
finished a bachelor’s degree and I am currently enrolled in a post-
graduate program. Since I enrolled at college, I have worked with
different immigrant organizations and politicians in his city. But
because of my legal status, I was not able to receive income. Instead, I
was paid with fellowships or participated in special programs for
undocumented youth. These opportunities are important but temporary
because of the nature of the contracts. My stable jobs have been
working in restaurants and cafes. Also, I have lost job opportunities. I
was offered a very good job, but because of my legal situation, they told
me they could not hire me. My lawyer advised me to give my case
visibility, to find people with political influence to support me. This is
what I am doing along with getting my master’s degree.”
3) Legalization path faces contingencies in work and family life but
highly skilled immigrants self-sponsor their legal permanent
residency
The autonomous path to legalization is a path five (17 percent) of
the highly skilled immigrants interviewed followed: Erin, Felipe, Rafael,
Mark, and Marcos. This is a path that, like the second one, presents
barriers and legal contingencies for highly skilled immigrants while
building their legal trajectory. The autonomous path to acquiring a
green card requires a highly skilled immigrant to have exceptional
abilities in sciences, arts or culture (EB1) or requires highly skilled
immigrants to work in a field considered of national interest (EB2). This
is a self-sponsored visa: immigrants do not need a sponsor through
either family or employment categories. In a conversation with an
immigration lawyer, he told me this is not the most common legal path
for highly skilled immigrants, since it requires immigrants to have
exceptional abilities, and also it requires the presentation of additional
documentation to support each case. But it constitutes the first
category lawyers explore for a new client, to find out if the immigrant
might fit under this category. Four of the highly skilled immigrants
interviewed had a job when they applied for the visa and one did not.
All of them made the decision to apply for a green card to regularize
their legal situation, since in these cases they could not have achieved
the green card through means other than self-sponsorship. All of them
also counted on the advice of a lawyer for the purpose of applying for a
green card. All of them told me the costs of the lawyer were expensive
for them, but it was an investment they were willing to make because
the benefits were valuable. All of them were willing to invest capital in
order to get legal permanent residency just as families make decisions
to invest in family assets.
The decision to self-sponsor a green card application was made
under circumstances that were risky for the immigrants because they
did not know whether or not the application would be approved, since
self-sponsorship is not a common process for highly skilled immigrants
to pursue to acquire a green card. As I explained in prior chapters, the
U.S. does not provide a merit visa, as Canada does, that would allow
highly skilled immigrants to selfsponsor their legal permanent
residency based on points achieved through education, work
experience, language, age, or occupation. However, many highly skilled
immigrants selfsponsor their visas because they work in certain
industries in which they face difficulties in getting sponsorship for a
work visa, or because they want to avoid getting an H-1B visa, which
would grant their partners a visa that do not allow them to work.
Erin and Felipe decided to self-sponsor their applications for legal
permanent residency because their employers did not sponsor work
visas, in the case of Felipe, and because in Erin’s case she had difficulty
finding job that would sponsor her work visa (temporary or permanent)
after she graduated with a Ph.D. in one of the sciences. Erin earned
bachelor’s and master’s degrees in her country of birth. She came to
the U.S. to begin a Ph.D. She held an F1 visa for years while a student,
and when she graduated she was able to land a post-doctoral position
with the same university where she studied and an internship in a
private company in her field. Since her degree was in sciences, she was
able to hold the OPT for two and a half years (other graduates can use
OPT to work only for only one year). Once she graduated, Erin tried to
get a permanent job in a university or the private sector, but she faced
what many highly skilled immigrants face when looking for a job in
many fields. Employers were willing to hire her but would not sponsor
her visa. She needed to have a green card to be hired. And, of course, in
some cases where the company or university could have sponsored her
visa, she was not offered the job. But she realized during the two years
after graduation that her legal status was a problem she needed to
resolve by herself in order to get a job. Erin mentioned, “friends in the
same field told me that I needed to ask a lawyer whether I was able to
self-sponsor my green card because it is not a common practice in my
industry for companies to sponsor either temporary work visas or green
cards.”
Erin hired a lawyer, and because of her field and credentials, the
lawyer advised her to self-sponsor her green card in the EB2 category,
and request a National Interest Waiver. EB2 is the most common
category for highly skilled immigrants to use to apply for legal
permanent residency in the employment-sponsored category. But she
framed her green card application in terms of National Interest Waiver,
considering her research field, so she could avoid legal certification
procedures and could self-sponsor her green card, “I was able to self-
sponsor my green card without needing a job offer. In fact, at the time I
applied for a green card, I was still under OPT legal status,
unemployed, and looking for a job. Besides the usual personal
documentation, as the sponsor of my own visa application, I had to
make a strong case for myself, in a context in which I had no job offer,
raising the question of why I did not have a job offer if my credentials
were exceptional. My lawyer advised me not to focus on answering this
question, but instead on building a strong case based on my research
field and topic and why this research is of national interest for the U.S. I
needed to get six letters of reference from recognized professionals in
my field who were able to affirm my credentials but also explain why my
research was of national interest.” Before she got her green card, she
got a post-doctoral position with her current university, but since her
OPT expired and the green card had not been awarded yet, she held an
H-1B for a while until her green card was awarded. Felipe studied in
Latin America, eventually earning a Ph.D. in sciences. He came to the
U.S. when he accepted a post-doctoral position in the pharmaceutical
industry. The company sponsored his H-1B temporary work visa, which
he held for six years. When the H-1B visa’s expiration approached, he
contacted a lawyer, because his company would not sponsor his green
card application. The lawyer advised him to apply for a green card in
the category EB1, for people with extraordinary abilities in science,
arts, and culture, “I was married with children, and I did not want to
initiate a job search that might eventually lead to a company sponsoring
my green card application, so I followed the lawyer’s advice and self-
sponsored my green card. In the meantime, the institute where I
worked changed its focus. For one year I continued working with the
institute, although the kind of research I now did was not what I wanted
to continue doing. But I had no choice, since I had only a temporary
work visa attached to my sponsor, and my green card application was
still pending.” When Felipe received his green card, he quit the job and
was unemployed and looking for a job for one year and a half. He then
got the job where he is currently working in a university.
Rafael, Mark, and Marcos decided to self-sponsor their green
cards upon the advice of their lawyers because they needed to
regularize their legal situation since their spouses needed a visa that
would allow them to work. Thus, the H-1B visa was not an option for
them. Rafael was born in Latin America, and held a bachelor’s in
sciences from his country of birth, and a master’s from Europe, his
Ph.D. was earned in the U.S. During his Ph.D. studies in the U.S., he
held an F1 visa. He got a post-doctoral position for several years with a
university, acquiring a J1 visa, which is a visa for those holding visiting
positions, post-doctoral positions, or students with Fulbright
fellowships. Afterwards he got a job in information technology industry.
Rafael worked there with an H1-B visa for several years. Before he had
to renew the H-1B visa, he hired a lawyer to apply for a green card, “my
wife needed a visa to work. My H1B visa would have made her receive a
visa that did not allow her to work. Since the lawyer told me that my
credentials allowed me to self-sponsor my green card, I did so for both
myself and my wife.” The category used is EB2, and he requested a
National Interest Waiver. The company where he worked did not
necessarily refuse to sponsor his green card, but that was a time when
many changes were made in sponsorship rules for work visas. The
company, for example, no longer sponsored applications for H-1B
temporary work visas for highly skilled immigrants with post-doctoral
positions. Thus Rafael initiated the procedures to self-sponsor his green
card, “as part of the documentation, I needed to provide evidence
showing that my field and research were of national interest for the
U.S., and I needed to provide letters of references from around seven
professionals in my field who could write about my credentials and
research but also certify that my topic was of national interest. Those
scholars needed to come from different regions in the U.S.”
Mark and Marcos self-sponsored their permanent visas partly
because of visa regulations for spouses of H-1B visa holders. Both Mark
and Marcos are married, and they needed visas for their wives to work.
Mark was not yet looking for a job but he had spent many years on
temporary visas and wanted to stabilize his family legal situation.
Marcos, on the other hand, was facing the expiration of his temporary
visa, and though he had a job, he knew the difficulties that highly
skilled immigrants face in his industry trying to get sponsorship for a
work visa. This situation, as well as the need for a visa that would allow
his wife to work, obliged him to self-sponsor his green card instead of
applying for an H-1B visa.
Mark was born in Europe, where he began his university
education. He came to the U.S. to pursue a doctoral degree. Initially in
the U.S., he held a J1 visa because he held a visiting position with a
university, and when he began his Ph.D. he got an F1 visa. After he
graduated, he held a position as researcher in a university, and initially
he got an H-1B visa, “I contacted a lawyer to ask whether I could apply
for a green card because my wife was finishing her degree (she had her
own F1 visa), so she needed a visa to remain legally. My H-1B visa was
not an option because she would not have work permission. Because of
my credentials and also because I continued developing a career in my
country of birth while I was enrolled in my Ph.D., the lawyer told me I
was able to self-sponsor my green card under the EB1 category for
professionals with exceptional abilities in science, culture, and the arts.
I had to present eight letters from recognized scholars and prestigious
individuals in both my country of birth and the U.S. who could certify
my international reputation.” After one year, he got a post-doctoral
position at a university in the U.S.
Marcos holds university degrees, including the Ph.D., from Latin
America. He came to the U.S. for a post-doctoral position at a university.
He had a J1 visa during the post-doc and since he had a fellowship from
the government from his country of birth, the J1 visa was awarded with
the requirement to return to his country of birth for two years when he
finished his work. He worked for several years, and when the post-
doctoral position finished, he continued working as a research scientist.
As the J1 visa was nearing expiration, he decided he did not want to
return to his country of birth. In order to ask for a waiver of the two-
year return requirement, he needed to submit letters from scholars in
his field who would explain why his work was important for the U.S. But
mainly he needed the government of his country of birth to release him
from the obligation to returning, “I had to reimburse the government
the entire sum received with the fellowship I held during two years for
my post-doctoral position. It was an amount in dollars. And the
government had to submit a letter certifying that I was released from
my obligation to return.” At the same time, Marcos applied for a green
card under the EB1 category for himself and his wife. There was a time
of uncertainty during which he had not received the approval for the
two-year requirement waiver while the J1 visa was nearing completion
and he needed to apply for the green card. He mentioned in the
interview that in one of the communications with an immigration officer,
he was told, “begin to prepare your suitcases. Although the period of
uncertainty did not last very long, for some months the stress ran,
because of the approaching expiration date for the temporary visa. It
was a moment of a lot of uncertainty. One of the few moments in which
we thought the things were not under our control. But we had the hope
everything we will work out finally.” Some months later he got the
green card for himself and his wife. The green card allowed him to look
for a permanent faculty position in another university where he worked
some years until he got tenured.
As I mentioned previously, self-sponsorship of legal permanent
residency is not a common path available to any highly skilled
immigrant. There are two options to self-sponsor green card: one is
through the EB1 category, the path followed by Marcos, Felipe, and
Mark. This is a path reserved for immigrants with extraordinary
abilities in the sciences, arts, education, or athletics. Immigrants need
to provide national and international evidence of his or her
achievements, and must work in the U.S. in his or her area of
extraordinary ability. This category does not require employment
sponsorship and labor certification. The other category is EB2. In order
to self-sponsor the green card immigrants need to be eligible to apply
for National Interest Waiver, as Erin and Rafael did. They need to
provide evidence that their research topic is of national interest for the
U.S., and also scholars from the U.S. has to support their work. In this
category, immigrants do not need employment sponsorship and do not
go through labor certification.
Finally, I want to make reference to what happened to those immigrants
who are not
able to build a legal trajectory and become legal permanent residents.
All the highly skilled immigrants that participated in my research
remained in the U.S., and some of them have even become naturalized
U.S. citizens. There are many highly skilled immigrants who face
contingencies in work and legal situations such a job loss, difficulties
finding a job, or finding a job that sponsors their visa, and thus, have to
leave the U.S., either because they do not have the economic resources
to pay a lawyer or they are not willing to go through the challenging
work and legal experiences they have to face when building their legal
trajectory. Those who choose to remain, in spite of the ongoing
difficulties in regularizing their legal status in a way that matches their
skills as workers, are forced to look for alternatives to remain legally in
the country such as temporary student visas or marrying a U.S. citizen;
some may even spend time in an undocumented status.
Conclusion
In this chapter, based on thirty semi-structured interviews with
highly skilled immigrants, I analyzed the narratives highly skilled
immigrants gave about their legal trajectories since they came to live to
the United States. The interviews allowed me to explore the highly
skilled immigration trends identified in prior chapters analyzing
quantitative data. Highly skilled immigration is a multi-step process in
which immigrants first have a variety of legal statuses or no legal
status, and in subsequent stages achieve legal permanent residency.
Secondly, based on the narratives highly skilled immigrants gave about
their legal trajectories and array of experiences along the way to
achieving legal permanent residency, I built three paths to legalization.
These paths are not fixed or pre-established and did not follow any
institutionally defined legal direction but are based on highly skilled
immigrants’ legal experiences. In the first legal path to legalization,
immigrants did not face any fluctuations over the course of their legal
trajectory. This is a path followed by ten (33 percent) interviewees. The
second and third paths were followed by twenty interviewees (67
percent). In both paths, highly skilled immigrants face legal and work
contingencies while building their legal trajectory to legal permanent
residency. In the second path, highly skilled immigrants faced
fluctuations in their legal path due to unexpected work or legal
contingencies, but achieve legal permanent residency through
employment or family sponsorship. It was followed by fifteen
participants (50 percent). In the third legal path, highly skilled
immigrants experienced work and legal contingencies but self-
sponsored their green card. This is a path followed by five (17 percent)
immigrants.
Thirdly, I analyzed the place of highly skilled immigrants’ agency
in building their legal trajectories. These immigrants act as
entrepreneurs building their legal trajectory while navigating a variety
of work and legal contingencies: difficulties they encounter getting
work sponsorship for temporary or permanent visas, job loss, systemic
limitations of immigration laws, such as visa caps, waiting lists and visa
backlogs for certain nationalities. Along with the entrepreneurial ethos
they need to embrace to build their legal trajectory, privatization of risk
is the second term I suggest that describes the context in which highly
skilled immigrants build their path to legalization. In a context of
undefined time and legal uncertainty before they achieve legal
permanent residency, risk is a constitutive component of their legal
trajectory. Yet risk has become privatized because its consequences and
costs shifted from the economy, the government, and the employers to
highly skilled immigrants themselves.
References
Beck, Ulrich. “Living in the World Risk Society,” Economy and Society
2006, 35.3: 329-345.
Beck, Ulrich. Risk Society: Towards a New Modernity (Sage
Publications 1992).
Giddens, Anthony. Modernity and Self Identity (Polity 1991).
Giddens, Anthony. The Consequences of Modernity (Polity 1990).
Jarvis, Darryl. “Risk, Globalisation and the State: A Critical Appraisal of
Ulrich Beck and the World Risk Society Thesis,” Global Society, Vol. 21,
No. 1, January, 2007
Massey, Douglas and Nolan Malone. “Pathways to legal immigration,”
Population Research and Policy Review 21: 473-504, 2002.
Neff, Gina. Venture Labor (The MIT Press 2012).
Chapter Six
Multi-Step Legal Pathways and Highly Skilled Immigrants’ Family
and Work Experiences
Introduction
The distinction between legal immigration and undocumented
immigration is still the dominant binary the literature employs to
analyze international immigration. The growth of undocumented
immigration in the U.S. and recently implemented policies, such as the
militarization of the border with Mexico and changing deportation
policies, as well as the question about the extent to which the lack of
legal status affects immigrants’ lives, have all received much more
attention in recent years (Gonzales 2016; Gonzales and Sigona 2017;
Golash Boza ed. 2017). Legal immigration, nonetheless, is not
problematized. It is taken for granted that legality by itself entails
benefits for immigrants, much more in the case of highly skilled
immigrants, which the literature defines as privileged immigrants vis-à-
vis other immigrants such us refugees, unskilled, or undocumented
immigrants. Just as Pierre Bourdieu pointed out that statistically
significance does not make a problem sociologically interesting, the
reasons why some themes of research gain attention and others do not
are not always related to the relevance of the themes. Politics and
personal and academic preferences guide which themes are studied,
but that fact does not make understudied themes less sociologically
important.
As I pointed out in chapter 2, the distinction between legal
immigration and undocumented immigration does not give a full
account of the conditions of international immigration nowadays. It is a
too broad and imprecise a dichotomy. It is necessary to deconstruct
legal immigration in an analysis that pays attention to the
complexification of visa policies, the different legal tracks that this
entails, and the rights attached to each legal track. Visa policies for
highly skilled immigrants are not only formal or administrative
instruments the U.S. uses to determine who enters the country and
under what conditions, but they also function as technologies of control
and regulation of labor and family life at a macro and micro level. The
use of these technologies by the state is neither neutral nor arbitrary. At
a macro level, visa policies regulate immigration and the rights of
highly skilled immigrants themselves. The complexification of the visa
system, utilizing permanent and temporary visas for highly skilled
immigrants, produces different pathways to legalization and different
sets of rights attached to each legal path. Visa policies discriminate by
country and regions of the world through the implementation of
cumbersome administrative procedures and visa caps. As I indicated in
chapter 4, highly skilled immigrants from China, India, Philippines, and
Mexico, among other countries, are placed on waiting lists when they
apply for legal permanent residency, due to the fact that the permanent
immigration system does not allocate more than 7 percent of the total
number of visas available to any country. Since these countries have the
highest number of applications per year, many of the applicants from
these countries are placed on waiting lists in the employment-based and
family-based categories. At a micro level, the multi-step legal path
also raises the question of how legal trajectories are interwoven with
family and work experiences or pose important constraints to highly
skilled immigrants’ work and family life. Visa policies regulate highly
skilled immigrants’ family and work experiences. While immigrants
have temporary visas, immigrants’ residency in the country is under
scrutiny and control. Immigrants are subject to administrative
procedures, work restrictions, and impractical deadlines that in some
cases involve a de facto waiver of privacy.
My aim in this chapter is to gain a better understanding of the
visa system’s consequences for highly skilled immigrants’ work and
family experiences. The discussion in the chapter unfolds in two
sections. Based on the narratives highly skilled immigrants gave in
thirty interviews about their family and work experiences, I identified
two main areas in which legal status affects family life: family
experiences and spouses’ right to work. The second section focuses on
the consequences that legal status has on highly skilled immigrants’
work experiences. I discovered that legal status questions affect highly
skilled immigrants’ work in three main areas: immigrants’ attachment
to one employer; difficulties finding a job that sponsors work temporary
or permanent visas; and retaining the same job under different legal
statuses.
Family Trajectories
Highly skilled immigrants’ narratives about their family
trajectories illustrate the extent to which family life is intertwined not
only with work but also with legal decisions. Legal status affects
immigrants’ families in two main areas: family experiences and spouses’
right to work. The literature on immigrant families investigates the
intergenerational conflicts, accommodations, and tensions immigrant
families experience between immigrant parents and the second
generation. In particular, some literature analyzes conflicts within
families whose members have different legal statuses, i.e. transnational
families who live separately and whose life in the U.S. requires them to
be simultaneously connected with their home country (Foner and Dreby
2011). I aim to focus in this section on couples and marriages between
American citizens and highly skilled immigrants, and between two
immigrants, with the aim of analyzing the conflicts, tensions,
negotiations, and accommodations the couple experiences due to the
legal status of one of the partners and of the family.
Acquiring legal permanent residency in the United States through
employment can be a cumbersome process. But there is an easy path:
marrying an American citizen grants immigrants legal permanent
residency—the government does not set any cap on the number of
green cards awarded each year in this preference category. The process
has become more complicated in recent years though. Immigration
officers follow the married couple for two years, during which time the
couple must provide evidence to demonstrate that their marriage is
bona fide. One cannot know how many marriages are “arranged
marriages” between an American citizen and an immigrant, but these
arrangements exist between friends, through monetary arrangements,
or as a common cultural practice for particular nationalities or
ethnicities.
Family sponsorship is the most common category for attaining legal
permanent
residency in the U.S. As I described in chapter 4, almost 70 percent of
the green cards the United States grants annually are granted through
family sponsorship. Based on thirty semistructured interviews with
highly skilled immigrants, fourteen (47 percent) participants acquired
legal permanent residency through the family-based category. Nine (30
percent) participants in the research acquired legal permanent
residency because they were married to a U.S. citizen. The second
preference category (17 percent of participants) used to apply for a
green card was as family of a legal permanent resident, specifically,
unmarried child under 21 years old, and unmarried child of more than
21 years old.
How do couples reconcile an understanding of marriage as a
natural, intimate, and personal process with the legal needs of the
immigrant partner? Contrary to conventional perception, which
assumes that having an American partner resolves immigrant’s legal
situation, couples approach the opportunity to acquire legal permanent
residency for the immigrant partner through marriage differently.
Couples engage in meaningful conversations about each partner’s legal
status. The decision to marry is not a simple and straightforward
decision for all couples. For some it is, as is the case with Agustín, an
academic in the humanities who married his American girlfriend after
he spent nearly ten years on temporary visas. Agustín said, “it was
never an issue for us. In fact, I had my H-1B visa for three years more
at the time we got married. But after I renewed it, my wife and I
decided to get married, and I applied some months later for legal
permanent residency. When we got married my (American) self-
employed wife jokingly said you got legal permanent residency but I got
health insurance through your job.” Valentina said, “with my American
boyfriend we had plans to marry but we never really set up when, until
one day we were both talking with a friend of ours, and our friend, who
is very outspoken and likes to organize everything said ‘you have to get
married, you need to resolve your situation, your career, to work in your
field,’ and my boyfriend said ‘yes, let’s get married.’ It was a benefit for
me but also for the couple. I could not continue living as I lived, I was
not working on my field, my mother had had a stroke and I was not able
to travel to be with her. It was a relief for me and for us. A lawyer came
with us to the interview, we had to bring a lot of documentation, bank
accounts, credit cards, photographs of our family life, information about
our friends and family.”
Nonetheless, for other couples, the decision is more complex, and
entails deep and honest conversations, disappointments, and the
achievement of new understandings in the life of the couple. The
discussion around legal status in some cases transcends couples’ lives.
Partners are willing to marry, live together, buy assets, share finances,
but for some reason legal status has a surplus meaning for each
partner, which makes it more difficult to see it as a common project of
the couple. Cate is a scholar from Asia, who earned a Ph.D. in the U.S.
and works in a university with an H-1B visa. She mentioned in her
interview, “we had a conversation…my boyfriend is white American, he
comes from a town that is 90 percent white. Deep down he has
concerns whether I marry for the green card or for him. We talked and
he said he did not want to mix my legal status and our emotional ties. I
felt resentful, grumpy, but later on I started to see his side and his
reasons. If I accepted a green card by marrying him, I would owe him a
great deal. Because of racism here, I would be like a secondclass citizen
at home. This would bring questions of power and inequality into our
home.
Equality at home would be erased. I understood his logic. When I was
struggling with my OPT, H-1B, he said ‘do not worry, I will not allow you
to be deported.’ Everything worked out finally with my work and my
temporary visa. In our relationship, he is trying to deal with me having
a higher degree, he has an MA, I have a Ph.D. With the green card, I do
not want to owe him something that big.”
For other couples—and this reason surfaced in the interviews
when the man is an immigrant and the woman is American—though the
immigrant partner had the option to acquire a green card through
marriage, he did it through employment. One of the participants,
Eugenio, who divorced his wife years after he acquired legal permanent
residency through employment, expressed, “I had the possibility to get
legal permanent residency through marriage but I did not apply for it
then. It did not feel right, it would have put me in a position…as if I
owed my wife my residency. And given that years later we divorced, I
think I made a wise decision.” Oscar, a scholar in the humanities, also
could have acquired legal permanent residency, since his wife is
American, but he did it through employment. He said, “it would have
been suspicious, I am an academic, working class from Latin America.
My wife is white; her family is a working class white family. We met on
an online site for singles looking for partners…it would have introduced
doubts in the family about why I am marrying her.” Legal status and
personal conflicts in marriage are also intertwined even after the
immigrant partner has applied for legal permanent residency. Mariana,
who works in a media industry, mentioned in her interview, “When I had
the second interview with the immigration officer, I was separating
from my husband. We were still together, but I was already living in
another city where I got a fellowship to study, and he lived in the city
where we lived together. The interview turned out very bad; we were
separated in two rooms…I was told I did not comply with the
requirements to be granted the legal permanent residency. I was very
nervous, my husband did not cooperate, and he did not bring the
documentation we needed.” Facundo works in the financial
industry. He met his girlfriend when they were both taking a master’s
degree abroad, and when they graduated, he looked for jobs in the U.S.,
and in the city where his girlfriend lived. He mentioned that when he
had temporary legal status with an H-1B visa, he had some discussions
with his American girlfriend that put into question his commitment to
the couple. The couple eventually married, but the first years, when
they were not yet ready to marry and he had a temporary visa, his
girlfriend admonished him on many occasions. “My temporary status
was a recurrent theme of discussion. She said ‘nothing tells me you will
not leave in some years when your visa expires. I do not see you have
roots here. What happens with your visa? What will you do?’ I had job
offers in Europe, in Latin America. My visa was a factor that brought
much instability. My wife (then girlfriend) said I was here to improve my
CV and then leave. I talked with my boss about sponsorship for my
green card. But she told me that if I was married, it was better for me
to do it with my wife. She suggested not even bringing the issue to the
company. After three years, we got married and I acquired legal
permanent residency.”
Immigrants and their families not only accommodate their
marriage decision to decisions about legal status, but also about which
country to reside until they can resolve their legal problems. Federico is
an executive in a cultural organization. He acquired legal permanent
residency when he was 19 years old through his mother, who applied
for legal permanent residency and included Federico as a dependent
(son under 21 years old). Since his daughter was born, he and his wife
have resided permanently in the U.S. But before that, Federico was
what the literature calls a transnational immigrant. He lived and
worked both in the U.S. and in his home country, because his girlfriend
lived there; they had known each other when they were in college
there. Since he was a legal permanent resident of the U.S., a spousal
green card would take many years, so they had to accommodate family
life and her legal status and live in both countries: “We hired a lawyer
to organize when it would be a good moment for us to get married, for
my wife to apply for a green card, and for us to reside in the U.S.”
Santiago’s case was even more complicated than Federico’s. He
works as freelancer. Since his American girlfriend lived in the U.S., he
came to the U.S. many times with a tourist visa, until he was not
allowed to reenter the country. His girlfriend then moved to his home
country with him. He said in the interview, “it was a hard time because
we did not know whether I would be able to enter the U.S. again since I
was denied entry. We stayed some years in my country, until my wife
(then girlfriend) came back first to the U.S. and I finally reentered with
a fiancé visa. We got married some months [after] I arrived because this
is the time you have to marry when you enter the country with a fiancé
visa.” When Santiago applied for legal permanent residency, the
procedure was very difficult, “since I was not allowed to enter the U.S.,
we had a hard time getting my green card. We had to hire a lawyer, who
made my case stronger; he claimed the psychological consequences all
this had on my wife. In fact, she was taking medication and seeing a
therapist because of the lingering stressful situation.” Santiago was
finally granted legal permanent residency, but his family life during
those five years was determined by the difficulties he faced to
regularize his legal status in the U.S.
When the marriage is between two immigrants, sometimes the
decision to get married is a function of the legal needs of one or both
partners. As many of my interviewees said, their relationship and
marriage are real, and eventually they would have married, but the
decision of when to get married, for many interviewees, was taken to
resolve a legal situation. Out of twenty interviewees who are married,
ten said they got married when they needed to resolve the legal
situation of their partner. To give a few examples—I will explain in more
detail their trajectories in the following section—Mark, a post-doctoral
researcher, came to the United States with his girlfriend, to earn his
Ph.D. She also came to study, and thus had her own F1 visa. When Mark
finished graduate school, he continued working with the OPT, and his
girlfriend also had an OPT position. Mark applied for an H-1B, but
before applying, he and his girlfriend married, so that his wife would be
eligible for a visa as a dependent of H-1B holder. Another interviewee,
Marcos, came to the U.S. for a post-doctoral position. His girlfriend
came with him, but they got married before leaving their home country
so that his wife would get a J4 visa, as a dependent of a J1 holder. When
Rafael began work at a high-technology company after earning a Ph.D.
and working in a post-doctoral position in a U.S. university, he was
awarded an H-1B visa. His girlfriend needed a visa because she did not
want to continue working as in her field. They talked to a lawyer and
based on his advice, Rafael decided to selfsponsor his green card.
Before initiating the procedures for the green card, they got married, so
that his wife would acquire legal permanent residency as well.
Individual or family immigrants also make accommodations in
their lives for their legal status. One of the ways in which building legal
pathways to legal permanent residency affects highly skilled
immigrant’s family experiences is their dependence on hiring a lawyer.
More than 70 percent of the participants in my research hired a lawyer,
because they did not have another option. Building a legal path can be a
cumbersome and risky process for someone without knowledge of
immigration laws’ regulations and nuances. As such, immigrants and
their families understand hiring a lawyer as an investment. They know
that no matter how much money they have to pay the lawyer, or how
much money they have to pay in fees for temporary visas or green
cards, this is an investment in their life and work in the U.S.
Though all the participants are highly skilled immigrants, and their
families have a middle class or upper middle class socioeconomic
status, they acquired this socioeconomic status as result of many years
living and working in the U.S. None of the immigrants, or their families,
however, had achieved comfortable socioeconomic status when they
had to hire a lawyer, or pay the fees for their green cards or temporary
visas. For example, Felipe, Rafael, Marcos, and Mark (whose legal
trajectories I explained at length in chapter 5) self-sponsored their
green cards when they were ending post-doctoral positions. After
Eugenio lost his job with a major multimedia company, he hired a
lawyer to resolve his legal situation, for which he used five years’
accrued savings. Yet immigrants and their families consider legal status
as vital for their family life in the U.S. Immigrants’ investment of capital
to build their legal path is seen as a substantive investment in the life of
the family, similar to buying family assets, and they are willing to invest
capital and take risks when they face legal or work contingencies to
conserve their legal residency.
Spouses’ Right to Work
One of the ways in which visa policies act as technologies of
control over immigrants’ families is through the visas spouses, as
dependents, acquire. Depending on which temporary legal track highly
skilled immigrants are on, their spouses may or may not be granted the
right to work. Spouses of H1-B visa holders receive an H4 visa, which
does not allow them to work; spouses of immigrants with work
temporary visas L1 or J1 have the right to work. Families cope
differently with a spouse’s lack of permission to work. Some of them use
this time for child rearing, and for acquiring new skills for life in the
U.S. This is what Felipe, who works in the pharmaceutical industry,
mentioned in the interview, “I had an H-1B visa, my wife did not have
work permission, but at that time it was convenient for us because we
had young kids and it was better for her to stay at home. Also, she took
this time to begin new studies, acquire new skills, which later, when she
attained legal permanent residency, allowed her to find a job. So those
years without working helped her to raise our young kids, but also to
take time to accommodate herself in our new life in the U.S.”
Yet other families made legal decisions precisely taking into
account that the spouse needed a visa to work. Marcos, Mark, and
Rafael self-sponsored their green cards. The three of them mentioned in
the interviews one of the main reasons why they took the decision to
selfsponsor their green cards was because their wives needed visas to
work. Marcos, a researcher in sciences, said, “when I came to the US
for the post-doc, I got married with my girlfriend because she needed a
visa to come with me. I came for the first time with a J1 visa, and she
had J4…after three years, when my J1 visa was about to expire, I self-
sponsored the green card because my wife was working, and she
needed a visa to continue working. If I had applied for an H-1B visa, she
would not have had work permission. That was one of the main reasons
why we decided to self-sponsor the green card.”
Mark’s situation was similar to Marcos’s. He is a post-doctoral
researcher at a university. He said in the interview, “Before I applied for
the H-1B, I got married with my wife because she was finishing her
studies, she had her own student visa, which would end when she
graduated, so she needed a new visa. She got an H4 visa, with which
she was not allowed to work. It was not a big problem for us that she
did not work; we had some properties in our home country. But also we
knew this would be temporary, because I talked to the lawyers, and they
advised me to self-sponsor the legal permanent residency, which I did,
so the time she was not allowed to work did not last long.” Rafael, who
works in a major tech company, mentioned in the interview also, “I had
the H-1B visa, and my wife had her own temporary visa. She wanted to
change of job, she wanted to have more options, to explore different
work fields. She got tired of her work, so we talked to a lawyer and the
lawyer advised me to selfsponsor my green card. When we decided to
apply for green card, we also got married. It is not that we would not
have married eventually, in fact we are together and have children, but
we decided to get married at that time so she would acquire also legal
permanent residency.” There are not many studies that analyze the
impact that the lack of work permission has on spouses of highly skilled
immigrants. The participants in my research made virtue of necessity.
They coped with their spouses’ need for a visa to work in ways that
were not costly for the couple. When the spouse needed to have a visa
that allowed her to work, the family was able to resolve their legal
situation in a favorable way for their needs by self-sponsoring green
cards. Also, in cases outlined above, the time a spouse had an H4 visa,
and was not allowed to work, did not last long, or coincided with time
she dedicated to motherhood. However, the fact that spouses of H-1B
holders do not have the right to work has detrimental consequences for
immigrants and their families. Banerjee (2013), one of the few
researchers who have studied this topic, made an analysis of the
category of dependent visa and its costs on the lives and subjectivities
of immigrants and their families. She points out these visas have
consequences for the self, in the family structure, and in the public life
of the dependent visa holder. Thus the government controls the self and
subjectivities of transnational mobile immigrants through this visa.
Banerjee indicates there are different strategies immigrants’ spouses
use to cope and survive the rules and regulations of immigration, such
as illegal work, going to school, motherhood, alcoholism, or leaving
their husbands.
Caveat: Immigrants’ Parents, Children, and Siblings
The discussion of family issues does not address relatives other
than spouses –children, parents, and siblings- because participants did
not mention substantive issues. The reason why issues about extended
family – parents and siblings – are not very important is because highly
skilled immigration, unlike other immigrations, is an immigration that
involves the individual or the nuclear family – couple with or without
children.
Nine participants have children - babies, toddlers, kids in
elementary school, and teens high-school. Eleven children are
Americans, and four came to the U.S. when their parents migrated. In
the narratives immigrants gave about their legal status, there are not
substantive issues in the way legal status affected their children. Many
of them had their children when they had already acquired legal
permanent residency, and have lived in the U.S. a good number of years,
so their life in the country is pretty settled. Participants did not mention
either conflicts associated with their children and legal status. Quite the
contrary, children made their commitment to live in the U.S. stronger.
As Federico, whose wife and he had acquired legal permanent
residency by the time their daughter was born, mentioned, “when our
daughter was born here, we took it as an opportunity to be good
parents, because we were here alone, without family and all the
network we had in our country of birth, so we invested and participated
a lot of in the everyday life of our kid. Our social life is more limited,
yes, but we are very involved in her school, in her extra-curricular
activities. If we lived in our country of birth, we have relied more on
grandparents, baby-sitters, siblings, friends to take care of our kid.”
Martín, who came to the U.S. with his wife and children, said in
the interview that “at first we came here to see what happens, to
explore how life and work would be in the U.S. We had some concerns
about how our kids would adapt to our life here, to the language, being
far from their family. The truth is that they adapted much faster than
my wife and I. They went to school, learned the language quickly, made
friends.” Felipe, who also came to the U.S. with his wife and two
children, mentioned, “my wife had the H4 visa, and since she did not
have work permission, she stayed at home what made easier for us and
the kids their adaptation to our new life in the U.S.”
Immigrants did not experience substantive issues with parents or
relatives either in relation to their legal status. As I mentioned before,
when a highly skilled immigrant migrates as an adult, she does it alone
or with the nuclear family – partner or spouse, and sometimes children.
Parents most of the time play a supportive role. There are some cases,
however, who directly involved their parents in their legal trajectories.
Marcos mentioned that when he came to the U.S. for a post-doctoral
position, he came with the visa J1. Since he had a fellowship from the
government of his country of birth, he had to return to his country two
years after the visa expired. He requested a waiver for this two-years
rule, which was granted, but the government had to relieve Marcos
from the obligation to return. In order for the government to do so, he
had to repay the amount of dollars he received during his post-doctoral
position. Marcos did not count with the whole amount, so his parents
borrowed him the money he needed.
Another participant, Mariana, who is already American citizen,
mentioned in the interview she would like to sponsor her mother for
LPR due to the political situation in her country of birth, and where her
mother lives. Valentina, who also is already American citizen,
mentioned she lives with her brother, who is undocumented, and would
like to sponsor him for LPR. Salvador, who acquired LPR when his
mother sponsored him, mentioned in the interview that his father was
still undocumented. His father is the only one in the family who has not
acquired yet LPR.
Work Trajectories
There is an important body of literature that explores how highly
skilled immigrants with temporary or permanent legal statuses enjoy
different labor rights (Salzman, Hal, Daniel Kuehn, and Lindsay Lowell
2013; Reichl Lutra 2009). In chapter 3, which focuses on the rights of
highly skilled immigrants on a multi-step legal path, I analyzed at
length the rights attached to each temporary and permanent visa. Paula
England points out that wages in fields that involve care work—work
that involves face to face interactions and improves the physical,
cognitive, or psychological abilities of the beneficiaries—are low, due to
intrinsic characteristics of care work. Workers who leave the field of
care work earn more than in their previous field. Thus, low wages in
care work are not associated with workers’ skills or human capital, but
to inherent characteristics of the field, such as intrinsic motivation,
association with motherhood, and difficulties translating work results
into productivity frames (England 2002). The same explanation can be
applied to highly skilled immigrants, and how their work conditions
change when they move from temporary legal statuses to acquiring
legal permanent residency. Highly skilled immigrants under temporary
legal statuses are affected in their labor rights in many ways. This is
due to their visa, and not to their skills or human capital (Reichl Lutra
2009; Jasso, Wadha, Gereffi, Rissing, and Freeman 2010). The
achievement of legal permanent residency constitutes a turning point in
highly skilled immigrants’ career paths, because they achieve the legal
certainty and stability to secure a series of labor rights that under
temporary visas sometimes they have to compromise, for example,
working conditions, benefits, and wages.
Family sponsorship, e.g., through marrying a U.S. citizen, and self-
sponsorship are the only two ways highly skilled immigrants have to
directly achieve legal permanent residency. That means, as explained in
chapter 5, that for the majority of highly skilled immigrants the
pathway to legal permanent residency involves a multiplicity of legal
statuses. How much time immigrants spend with temporary legal status
before acquiring legal permanent residency is not fixed. The length of
time varies depending on conditional and contingent factors immigrants
encounter in their work, family, and even legal trajectory. Just as
immigrants embrace an entrepreneurial ethos for building their legal
trajectories, and as a result, risk becomes privatized because
immigrants bear the costs of adverse contingencies in their legal
trajectory until they acquire legal permanent residency, the
consequences of the multi-step legal path for immigrants’ work
experiences also show that immigrants bear the adverse costs in their
work due to their legal status.
Based on the narratives immigrants gave about their work
experiences in non-academic labor markets, highly skilled immigrants
fill the need companies have for a flexible labor force (Renne Luhtra
2009; Xiang 2007). Those immigrants most affected are those who are
young and in the early stages of their careers, who have the skills to
perform the job, or are even overqualified, without the company
needing to invest in their training or human capital. Highly skilled
immigrants who begin in managerial positions with an L1 visa are less
affected in their work while they have temporary legal status because
they are intracompany transfers. Like highly skilled immigrants in
academic labor markets, those who work in non-academic labor
markets with a temporary visa, H-1B, F1, are attached to the employer,
which constitutes an essential limitation for highly skilled immigrants
because their legal status is attached to their job and dissolves without
it. In terms of their work trajectory, highly skilled immigrants
sometimes find themselves in a job that no longer satisfies their work
expectations, but cannot leave the job unless they get a new one. They
are also affected by their visas’ limited duration, and difficulties finding
sponsorship for legal permanent residency.
In academic labor markets, those who bear the costs of having
temporary legal statuses are those who are early career scholars in
untenured positions. Though it can certainly be said that these are the
academics that face more precarity in their careers, temporary legal
status adds a new source of precarity for immigrants working in
academic fields. The variables that most affect their work are related to
visa sponsorship and limits in the duration of the visa, dependence on
the employer because legal status is attached to the employer, lack of
visa flexibility to accept jobs—such as conference speaker or a musician
hired by a theater for a particular concert—with other employers.
Highly skilled immigrants in academic labor markets who are on tenure
track are not affected in their full time income and benefits (health
insurance, retirement plans) due to their visa, compared to natives or
legal permanent residents.
One factor that permeates both academic and non-academic labor
markets is the difficulties immigrants encounter finding employers to
sponsor temporary or permanent work visas. This is a constraint that
permeates many industries. In the interviews I identified that even
within the same industry, there is a great deal of variation by firm in
non-academic labor markets, and by university/college, in academic
labor markets. This variation contributes to the precarity experienced
by highly skilled immigrants vis-à-vis employers, when they do not have
legal permanent residency. In a competitive labor market, the likelihood
that immigrants will encounter employers who do not sponsor work
visas is high. Furthermore, a highly skilled immigrant’s legal status
becomes a variable of negotiation with the employer; when for instance
the employer and employee negotiate salary and benefits. For
immigrants legal status becomes another a component of that
bargaining process.
Discussion Section
In this section, I will discuss the constraints immigrants
encounter, and the ways those constraints problematize their career
paths in relation to their legal status, as mentioned in the narratives
highly skilled immigrants gave in interviews. When immigrants have a
temporary work visa, they are attached to the employer that sponsored
them. One constraint immigrants face is they have to remain working in
the same job, though the job no longer satisfies them, because of visa
status. Felipe, who works in the pharmaceutical industry, mentioned in
his interview, “I came to work as a researcher, but after some years, the
institute’s priorities shifted to an area I did not want to develop in my
career, but since I had an H-1B visa, I had to stay in the job until I
acquired legal permanent residency.” Felipe is one of the immigrants I
interviewed who self-sponsored a green card for himself and his family,
because the employer would not sponsor his legal permanent residency.
Felipe later left his job and looked for a new one while unemployed;
finally he got the job he was looking for, but only after he acquired legal
permanent residency. These were options not available for him when he
was under temporary legal status with the H-1B visa.
Lorraine, who works in the humanitarian field, experienced a
situation similar to Felipe’s. She worked with an H-1B visa as project
director in an international organization for multiple years, but the last
year and a half in her job she was not happy, as she said, “I wanted to
change my job but at the time I was uncertain due to my legal status. I
learned later when I hired a lawyer to apply for a green card that I
could have transferred my H-1B visa to another organization if I got a
new job, but that was an option I did not even think about while I was
working with the H-1B visa. When I got married (to a U.S. citizen), I
applied immediately for legal permanent residency. My application was
a work decision. I wanted to quit my job, and I knew the green card
would open more options for me and would give me the freedom to quit
the job. More than one year after I quit my job, I was hired again, but
because I had a green card, I was able to negotiate better working
conditions. Not a much better income because incomes are not very
high here, but I was able to negotiate better working conditions, such
as having the possibility to work from my home some days of the week.”
But even if immigrants are satisfied with their job, when they have
a temporary work visa, they have permission to work only with the
employer that sponsors their visa. So they cannot accept temporary
work with other employers. The lack of flexibility attached to the visa
imposes upon them a rule that goes against the dynamism necessary for
highly skilled immigrants’ advancement in many industries. Tomas is
performer and professor in a university. He mentioned in the interview,
“when I had the H-1B visa I only had work permission in the university.
I was invited to perform in different companies and theaters in the U.S.,
but because of my visa, I was not able to receive income. I only was
able to get paid through my university, and in the form of research
funds. Of course, I only could use this money for research purposes or
to buy equipment, such as computers.” When I asked Tomas if this was
easy for him to do with the companies or theaters that wanted to hire
him, he said, “not always, people did not understand what they had to
do, why I was doing this. People suspected I was trying to evade taxes.
Some of them directly told me they were not able to do it, so I was not
hired. It was not a comfortable situation. And this is important for me to
do in order to develop my career, and to get tenure. In an arts
profession, you have to show the work you have done outside of the
university. The more you are hired, the better for your career. This is
why when I accepted the job in my current university, I asked for legal
permanent residency sponsorship. Because I had already experienced
the limitations of the H1B visa for my work.” Highly skilled immigrants
who work in the arts, film, and music industry face the same difficulties
that Tomas encountered, because their work depends on being hired by
different companies or theaters. This is true even for those like Tomas
who have a primary, full time job.
In practically every industry and occupation represented in the
interviews, highly skilled immigrants have problems finding a job that
sponsors their work visa, either temporary or permanent. In academic
and non-academic labor markets there is a lot of variation by firms and
universities. The reasons for this are not related to immigrants’ skills,
education, or legal market needs, but to limitations and constraints the
permanent and temporary immigration laws and policies impose upon
highly skilled immigrants’ international mobility and penetration into
the U.S. labor force. As a consequence, immigrants accept jobs below
their qualifications, with wages below their skills, or remain in jobs that
do not fully satisfy their work expectations. But also, immigrants’ legal
status becomes part of the negotiation with the employer. While like any
other worker, immigrants negotiate salary, labor conditions, and
benefits, they also find themselves in the position where their legal
status is open to negotiation with their employers. This was mentioned
by many of my interviewees. The immigrant’s legal status, the
availability of sponsorship and under what conditions, payment of visa
or legal fees, were all questions introduced into the hiring process, or
after the immigrant began to work and needed to apply for a new visa.
When Facundo, who works in the financial industry, completed his
master’s degree, he had difficulties finding a job that sponsored the H-
1B visa. He had worked in the financial sector and had international
work experience. Though he received job offers, many companies told
him they would not sponsor the H-1B visa. He finally got sponsorship
from a company, but he had to accept a position below his skills, work
experience, and with a low wage. Almost one year later, he quit the job
and transferred the H-1B visa to a new company, in a position that for
Facundo represented “being promoted four work positions.” Valeria, a
designer, worked in different jobs during many years because she had
difficulties finding a job in her field that would sponsor her visa. Erin,
Marcos, Rafael, and Felipe, who work in science, technology, and
engineering fields, self-sponsored their green cards because of the
difficulties they found getting sponsorship for their legal permanent
residency. Rafael mentioned in his interview that the company where he
works, a major high-tech company, no longer sponsors any H-1B visas
for post-doctoral positions.
These industries and fields are all industries that have problems
sponsoring work visas.
The H-1B visa has an annual cap of 65,000 visas and 20,000 visas for
graduates from U.S. universities. Since the number of applications
exceeds the number of visas available, the government set up a
computerized system some years ago to allocate the visas. The
industries most affected by this system are information technology, the
pharmaceutical industry, and the financial sector. These are the
industries with the highest penetration of highly skilled immigrants and
the highest concentration of temporary work visas, more than 50
percent of visas in the case of high-tech industry—analyzed at length in
chapter 4.
However, in other industries, like universities and colleges, highly
skilled immigrants also have difficulty finding sponsorship for their
visas. Curiously, there is no governmentimposed cap on the number of
temporary work visas allocated in research institutions. They are cap-
exempt as are nonprofit organizations associated to colleges and
universities, non profit research organizations and governmental
research organizations, employees who will work the majority of his
time in a cap-exempt employer, even in the cases in which the primary
employer is cap-subject. Sometimes universities or colleges do not
sponsor work visas because they do not have the right staff in the
department of human resources; or they do not have lawyers that know
and understand the legal procedures. When this occurs, immigrants can
sometimes negotiate an arrangement with the institution regarding
hiring a lawyer and paying the fees for the visa application. Agustin
acquired a faculty position in a college with the Optional Practical
Training (work permission attached to his F1 student visa). When he
learned the college would not process his application for an H-1B visa—
though the college sponsored the visa—he hired a lawyer and paid the
visa fees.
In other universities or colleges, the situation can be more
extreme. The college or university directly advises foreign workers that
they do not sponsor work visas. This may occur in public institutions
located in conservative states that have an anti-immigrant stance. One
of my interviewees mentioned that when he was studying in a
prestigious public university, the university told one of his professors it
would not sponsor the student’s legal permanent residency because
that was the policy of the university. I have myself found in many job
applications, to small colleges or large public universities, a question
regarding the applicant’s work permission; a small number of places
directly discourage foreign candidates to apply if they do not have work
permission.
Another consequence the multi-step legal path imposes upon
highly skilled immigrants’ work experiences is that immigrants often
perform the same job under different legal statuses, which affect their
rights, salary, and benefits. This also puts immigrants under constant
legal control and scrutiny. As I showed in chapter 5, in which I
explained highly skilled immigrants legal trajectories, many of the
participants in my research had the same job with different visas. To
give a few examples: first OPT, then H-1B, then legal permanent
residency; or first H-1B for many years, and later legal permanent
residency. This shows that the different rights and legal constraints
immigrants face in each legal status do not express immigrants’ human
capital or skills. Quite to the contrary, immigrants have the skills and
human capital for the job; in most of the cases, they are well qualified
or overqualified for the job. As a matter of fact, none of the participants
said they felt underqualified for any of the jobs they had in the U.S.
Why do some immigrants spend six years with a temporary work
visa, apply for legal permanent residency, and continue working in the
same job? Why do other immigrants spend three with a temporary visa,
apply for legal permanent residency, and continue working in the same
job? More examples with a variety of timelines and temporary visas
could be added, but all of them illustrate the arbitrariness of the legal
trajectory and the precarization of the immigrant condition under
temporary legal statuses.
As Cohen (2015) points out, time was introduced in immigration
laws as a universal and abstract principle to treat immigrants and their
belongings and rights in democratic societies in an egalitarian way.
Time, as such, is a better indicator than any social mark, such as race,
ethnicity, or religion, which naturally will treat immigrants differently,
and eventually could lead to discrimination. If everyone is subject to the
same time requirements in their legal path to permanent residency, as
well as for applying for citizenship, then equal treatment before the
law is guaranteed. The increase of temporary legal states erases the
uniformity of time as a principle that guarantees equal treatment for
immigrants in their path to legal permanent residency. Time is no
longer fixed; it varies depending on contingent and conditional work,
family, and legal factors. As I explained in chapter 5, the growing
privatization of risk and entrepreneuralization of highly skilled
immigrants, which transform them into key actors in building their
legal pathways, is more a consequence of their precarization than an
affirmation of immigrants’ autonomy.
Recognition of Credentials
I want to dedicate the last section to a problem all highly skilled
immigrants have. This problem is not directly linked to legal status,
though some highly skilled immigrants are more exposed to due to their
legal status and occupation. Highly skilled immigrants who come to the
U.S. as refugees are more likely to experience problems with the
recognition of their credentials than other groups, because their
immigration is not voluntary. Highly skilled immigrants who acquire
legal permanent residency through the family-based category also may
face problems having their credentials recognized. When immigrants
acquire their visa through education or employment, recognition of
their credentials is more likely, because in educational institutions and
in work environments, such recognition would be a prerequisite for visa
sponsorship.
Twenty-six participants in the research obtained their
undergraduate degree in their home country; four finished bachelor’s
degrees in the U.S. Thirteen participants finished a Ph.D. in the U.S.,
while three participants had already completed a Ph.D. when they
arrived. Four participants came to the U.S. with a master’s degree.
These highly skilled immigrants work in a variety of industries, such as
the media, finance, design, the technology industry, humanitarian
organizations, or teach and research in universities and colleges in a
variety of fields—social sciences humanities, sciences, performing arts
—while others work in arts and cultural organizations, hospitality
industry, or do freelance work in the media industry, and others are
journalists.
Though none of the participants in my research had problems with
their credentials being recognized, the literature mentions that the
recognition of credentials is a problem many highly skilled immigrants
face. McHugh and Morawski (2017) point out that of the 7.6 million
college-educated immigrants in the U.S., 1.9 million are unemployed or
underemployed in lowskill jobs. More than half of these immigrants
obtained their education abroad, but they cannot enter the labor market
according to their skills, and they remain in low-paid jobs. Since skilled
immigrants who got their expertise abroad face many barriers trying to
enter the U.S. labor market, they encounter many challenges. Many of
these challenges require important financial resources, “for example,
building professional-level English language skills; navigating licensing
requirements that are frequently complex, restrictive, lengthy, and
expensive; and, in some cases, repeating all or some of their training at
a U.S. institution, regardless of the level of their qualifications” (p. xx).
The authors point out that many skilled immigrants will not be able to
develop the career they had in their home countries, because they
cannot find a balance between the short term need to get a job to
provide for themselves and their family, and the long term project that
the rebuilding of their careers in the U.S. requires. One of the key
factors to rebuild their careers is getting the final credential in the U.S.
