Now Hiring: Highly Skilled Foreigners Need Not Apply

Published on May 2018 | By Mark NeJame - Orlando Litigation Attorney and Rosa Melia-Acevedo

As I write this article I am in the midst of H-1B season. For those who are not knowledgeable on the topic, the H-1B is an immigration status and/or visa reserved for persons in specialty occupations. To the layperson, stating that an occupation is a specialty seems rather strange. In the immigration context, it refers to, “an occupation that requires- (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”

Most, not all, specialty occupations relate to STEM (Science, Technology, Engineering, and Mathematics) fields as well as fields that require post graduate degrees such as lawyers and doctors.

This administration’s policies have affected the U.S.’s ability to recruit foreign talent. On April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order, which “seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs the Department of Homeland Security, in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”
Section 2 of the “Buy American and Hire American” executive order breaks down the simple policy of the executive branch: to buy American and hire American.

One of the many issues with this policy, “Hire American” specifically, is its lack of understanding of a global economy. A global economy is partially considered as the international exchange of goods and services. By giving preferential treatment to U.S. workers, Citizens and Lawful Permanent Residents alike, the U.S. is ignoring the fact that in order to be a strong contender in any field, you need to know your competitions strengths and weaknesses. Having foreign workers who are specialized in a certain skill set and/or way of conducting business with their respective home country, is invaluable. For example: a national of China with a degree in architecture whose employer’s projects are primarily based in China. This worker has the knowledge of China’s metric system, culturally influenced style in architecture, and their specific way of conducting business.
Furthermore, mandating that the recipients of the H-1B, specialty occupation, status and/or visa be the “highest-paid petition beneficiaries,” deters petitioners, i.e. employers, from recruiting valuable foreign workers simply because the cost of employing them will be far too high and in turn those employers will be forced to potentially hire less qualified applicants simply because they are…American.

Our neighbors to the north, or rather lucrative companies headquartered there, see the value in hiring foreign talent. Many Canadian based Tech companies have seen an increase in recruitment of workers in specialty occupations from none other than the U. S. of A. Why? What better way to do business than to hire individuals who have experience in dealing with the very company (or in this case country) you are trying to do business with? Some things cannot be taught in a classroom and be based on a degree. Some things are learned by immersing yourself in a culture and their way of life.

Could the answer to our struggling economy be that intending immigrants are deterred from coming to the U.S., due to the recent policies pushed forth by some of our Nation’s leaders? Or have intending immigrants realized that their intellectual value is better served in a country that uplifts their contributions rather than diminishes them based on their country of origin?
Time will only tell whether the U.S. will continue to provide our competition in the global economy with the very talent that we could cultivated and benefit from, if only, we were smart enough to realize it.