Closing the Skills Gap: How Immigration Reform Impacts HR and Recruiting

In my most recent Recruiting Daily post, Border Wars: Tech Recruiting and Immigration Reform, I took a look at the persistent H1B visa cap problem plaguing employers, particularly within the technology sector, and noted that the draconian immigration restrictions blocking highly educated, highly skilled foreign talent has effectively exacerbated the already endemic shortage of STEM candidates while effectively eroding American employers’ economic competitiveness on a global scale.

Pursuing H1B reform seems to be something of an express lane down the proverbial rabbit hole, tilting listlessly at the windmills of political corruption created through policy oversights and partisan bickering. The bottom line, though, is simple; after all, anyone who’s ever recruited for a STEM related position, and the employers for whom they’re recruiting, already know that the system is fundamentally broken. What we need to focus on, instead, is how we’re finally going to fix things moving forward.

4 Solutions for Tech Recruiting’s Immigration Reform Problem

Immigration-Reform-Jan2013Now, before I step up fully onto my soapbox, I’d like to make it clear that it’s highly unlikely I’m going to be sitting in Congress anytime soon to facilitate a fix firsthand; thing is, I had a little too much fun in college in the 1990s, and even if my record was completely clean, I have a complete antipathy for the party politics that have created a state of stasis around this and so many other pressing policy problems.

Although, in fairness, I kind of hope that the Donald Trump campaign keeps on bringing the hits, because, well, that at least makes what’s already an exercise in the preservation of power at least a little entertaining, even if every sound bite makes me bleed from my ears or…where ever.

With that caveat in place, then, I wanted to present some potential options, turning the immigration reform shitstorm into something of a brainstorm instead.

Here’s a look at some ideas for how these systemic challenges can be overcome, and how we can kick start our economic competitiveness, reduce the STEM gap and make it easier for the best tech talent to legally obtain the right to work in the United States.

1. Extend the OPT Period

OPTThe law currently allows international students to apply for what’s referred to as “Optional Practical Training,” better known as OPT. This is a 12 month temporary work authorization granted for recent graduates with “STEM-eligible” degrees such as Computer Science, Engineering, Statistics and so forth; OPT participants are also eligible to extend this special work authorization for another 15 months before their eligibility expires.

For employers, the OPT program has been like a breath of fresh air, since logistically, the nearly two years of work eligibility participants receive effectively gives companies two shots at obtaining a full H1B visa for the candidate in question.

While this boost temporarily solves employers’ most pressing short term problems related to tech hiring, and allow skilled foreign workers to stick around temporarily in the US, its major long term effect is that it, in essence, entitles employees to two lottery tickets in the annual H1B sweepstakes for their efforts – and like most lotteries, the odds of winning are laughably low. Employers would be just about as well served allocating some budget room for buying Scratchers tickets at the 7-11; their chances (and subsequent payoff) are ultimately about the same, sadly.

Quick Aside: OPT, in its current interpretation, at least, is a total friggin’ farce. It’s not “optional” for workers unless their employment plans call for sitting around and hanging out while waiting for that small chance that they hit the numbers and walk away with an H1B. 

If you want to make money during the intervening months between graduation and possible work authorization, then participation in OPT is more or less mandatory. Furthermore, the name is something of an oxymoron, since there’s no actual “training” involved, per se. Instead, OPT offers workers a professional position for which they’re paid to come in and perform. That’s why that particular naming convention and associated acronym have always kind of pissed me off.

The STEM extension outlined in OPT legislation seems like it was designed as some sort of compromise, but upon closer examination, proves to be more of a completely arbitrary, super shady backroom deal concocted behind the scenes of the hallowed halls of Capitol Hill.

It’s ridiculous, really; if you think about it, these employers already have to prove they have a STEM degree to qualify, so since that’s the case, why not change the OPT period from its current one year with extension into a one time, 29 month exemption for eligible workers?

By eliminating the requirement for renewals, employers would have their stress greatly reduced while also facilitating the ability to more effectively utilize OPT workers, who themselves would also be saved an inordinate amount of paperwork and peace of mind by this simple semantic shift in legislative language. It’s a small step that makes a whole lot of sense.

Full disclosure: I’m as white as Wonder Bread, Augusta National or Macklemore, and lucky enough to be born in the US, which means that I haven’t ever had to go through the dog and pony show of getting the right to work in the US, nor have I had to deal with the lingering stress and unnecessary uncertainty so many foreign nationals face every day, but even without these added stressors hanging over my head.

That said, I can attest to the fact that for these employees, not knowing whether they’ll be allowed to remain in the US, or retain their work eligibility not only causes them to lose an inordinate amount of sleep, but like any personal problem, preempts full productivity and engagement on the job, too.

The X factor here is simple: if you’re not sure you’ll still have a job in a few months, then you’re probably less likely to be invested in your professional advancement than your personal preservation. It’s like having put in your two weeks notice, but having to stick around for two years instead. Which kind of sucks for all parties involved, frankly.

How corporate interests and the labor lobbyists retained by so many large employers haven’t raised hell over this issue or found a fix is beyond me. But it’s high time we actually tried, because the current OPT policy isn’t helping anyone, and workers and employers deserve better than the draconian parameters they’re now forced to work with.

2. Eliminate (Or Significantly Reduce) Third Party Applications

Screen-Shot-2015-04-08-at-10.31.20-AM3035637607With so much competition for so few visas, it’s high time to clamp down on thecottage industry of contractors who have more or less built their business model around “farming” out H1B visas.

This increasingly prevalent industry features a handful of companies which hoard H1Bs, capitalizing on demand by limiting supply and snapping up as many visas as possible from the already tightly restricted annual allocation.

These are the companies which bring foreign nationals to the US on H1B visas, more or less owning these expatriates by being the sole arbiters of their employment.

Any sponsored worker who complains about the most endemic problems perpetuated by these H1B farms (notice the prevalence of large professional services firm in the Top 10 H1B employers in 2015 in the graph above), like not doing the type of work they were originally promised, or rotting away doing no work at all on a “bench” while waiting for a work assignment, can be stripped of their visa and sent home, with or without reason.

By allowing these companies to fulfill the associated employer sponsorship mandated by H1B regulations, we’re effectively enabling these shady shell corporations to profit from poor policy while penalizing the thousands of employers lining up to hire these candidates, only to find their hands tied due to the fact that they simply can’t sponsor an H1B due to cap related restrictions.

These restrictions become even more restrictive than they already are thanks, largely, to the prevalence of the farms hoarding an inordinate percentage of outstanding work authorizations and the fact that there just aren’t enough to go around to legitimate enterprise employers.

Because many corporations need H1B authorizations for workers before their OPT eligibility expires, the majority of those people will be unable to have more than a single petition a year filed in their name; after all, they’re likely already employed, and ostensibly, looking for a visa explicitly to remain with their current employer.

And while it’s completely legal for one person to submit multiple applications for different employers, those are largely from candidates without current authorization looking to GET to the U.S., rather than renew or extend their existing eligibility through programs like OPT. Those workers fighting for the handful of available H1Bs are largely willing to do whatever it takes to win one of these coveted Golden Tickets, and will sign on with any employer who can facilitate this for them, no matter how shady or exploitative that employer might be.

This creates a domino effect whereby the companies that end up submitting the overwhelming majority of applications (and ultimately, granted visas) are from third party “consulting” firms. This name is a misnomer, of course, since they consult about as much as I sleep, and let me tell you, with two kids under the age of 7, that’s not a whole hell of a lot.

These firms work with candidates who not only asked them, but multiple competitors, to file visas on their behalf, meaning that when you start doing the math, it’s no wonder all H1B visa allocations are eaten up the day the filing period opens. While direct employers may have the opportunity to participate, the purported egalitarian selection process, in fact, inordinately favors those firms whose businesses are built to beat the odds by rigging the process in their favor, making an already flawed process even more inherently unfair.

Without a doubt, the trend towards firms who act as H1B “farms” have an inherent potential to damage our economy by limiting the ability of direct employers to recruit and retain skilled global workers, damaging our competitiveness by essentially turning these firms into the gatekeepers largely controlling access to the front end of the funnel by which foreign nationals obtain the eligibility to work in the US.

That these firms continue to profit means that, ultimately, we all lose out. Without the ability to hire the workers required to sustain their growth (or maybe to scale it – hell if I know, I suck at buzzword bingo), they may inevitably have to offshore or outsource these jobs overseas simply because those are the only options available to them to find employees with the requisite skills and expertise they need to help them succeed.

The founder of microblogging site Reddit, Alex Ohanian, has been a vocal proponent for H1B changes, alluding that this might be exactly what happens to the next Google.“The next Stripe, or the next Google, is one annoying visa application away from just starting in Canada,” he said. “We’re losing out on the next Zuckerberg just because of stupid visa applications,” Ohanian said. And he’s right.

Another quick aside: Can we PLEASE stop referring to every asshole with a computer in his garage as “the next Google?” Even Google is tired of hearing that crappy cliche by now.

3. Establish A Company-Specific Application Cap

2015-08-11_09-13-23Another alternative to immigration reform for recruiting is to somehow create a process for employers to submit their current headcount and hiring projections for the upcoming fiscal year and allocate a fixed number of visa applications based on this number, adding some modicum of method to the madness while leveling the playing field by fixing the inequity created by the rise of H1B farms.

Of course, this solution seems sound, but it’s not without its inherent obstacles – nothing related to visas can be simple, of course.

The challenges inherent to this seemingly straightforward fix include actually expecting employers to conduct this sort of audit and assume the associated work that comes along with this process; requiring some type of pre-established ratio of visa applications to projected hiring figures (which ratio would be right – one visa for every 100 hires? Every 50?

I suspect Congress would find this issue too contentious to just draw a line in the sand on this one); and finally, to institute centralized controls and compliance initiatives to deter fraud, audit and attest for accuracy of employers’ submitted headcounts, hiring plans and other required application information, with enforcement representing a extra cost likely assumed by the government or Department of Labor (who have shown a hesitancy to approve such additional budgetary line items, however much the opportunity costs actually cost).

The hard truth is, finding the right formula for this equation isn’t going to be easy, and there’s no “one size fits all” answer here that could be packaged into legislation that’s palatable enough to survive partisan bickering and pork barrell provisions.

But the aim of enacting this sort of recruiting related immigration reform, simply, is that it would eliminate those companies who put in petitions ad nauseum just to have a stable of captive candidates ready for “consulting” gigs at a moment’s notice – a practice that, no matter what, we need to figure out a way to stop sooner rather than later. Details be damned.

4. Just Increase The Cap

CBdTFb4UYAAqs8UHere’s the easiest fix, and one that the feet dragging, status quo protecting imbeciles in Congress can actually understand – and thanks to its simplicity, actually sell to their constituents, too.

Foreign workers with STEM degrees aren’t going to stop competing for the opportunity to work in America, no matter how convoluted or complicated obtaining work authorization might be, no matter how daunting or slim the odds of successfully landing an H1B might be.

The opportunity for better pay and a better quality of life are worth any amount of work; the potential payoff for these skilled foreign nationals and their families is just too great not to at least take a chance on fulfilling what for many has been a lifelong dream, and the promise of living the American Dream seems a small price to pay for the nightmare that comes with pursuing an H1B.

Having said that, We, The People, those that Congress purports to represent and who are the very same workers whose jobs blocking immigration reform supposedly protects, have a simple request for our elected officials. If you aren’t going to do shit to make the situation better, or take a hard look at the hard truths of immigration reform for skilled workers, then at least increase the number of visas available and finally lift the annual cap for the first time in seven long years.

That’s one workaround that’s not much work, and while you have your cronies in K Street iron out the details, at least in the interim your protectionism won’t put the entire employment market and economy at risk while this process plays itself out. Anything beats inaction at this point, because the less we change, the more of a problem immigration reform becomes for the long term sustainability and viability of American employers, particularly in terms of technology and the sciences – areas where we can ill afford to effectively surrender any competitive advantage, particularly one that’s so easily fixed.

Immigration Reform: What HR and Recruiting Pros Need To Do.

stem-immigration-chartIt seems like there are a handful of members of Congress who actually get the fact that our economy and visa reform are inextricably intertwined; while it might be more of a step in the direction than comprehensive long term solution, Utah Senator Orrin Hatch is sponsoring a bill (click here to read it in its entirety) which “Amends the Immigration and Nationality Act to establish an annual cap on H-1B nonimmigrant visas (specialty occupations) at between 115,000 and 195,000 visas depending upon market conditions and existing demand.”

Compared to the 65,000 currently available every year, this bill, introduced to the Senate in January 2015, seems like a simple, sane way to at least start to address this problem before it becomes too late – and even though immigration reform is seen, in the prism of party politics, as a left-leaning, progressive issue, the fact that this particular Amendment is being put forward by one of the most Conservative members of the GOP (and one from Utah, no less) shows that this is one legislative concern that impacts us all, and a fight all of us can – and should – support.

Ultimately, I know this is a complex and divisive issue that’s not going to be fixed by some recruiter writing a blog post. The problems are too widespread and systemic for my voice, alone, to matter too much. But as recruiters and employers, we’re the ones most impacted by this issue, which is why it’s up to us to speak up about this essential issue that’s too often overlooked.

We need to make our voices heard – because as the people fighting in the talent trenches, it’s not only our fight, but together, as the people most responsible for driving the job market forward, we have the potential to have enough power to make sure that our voices are listened to, too.

Now that you’ve heard my version of what’s going on out there, I want to hear what you think, too – and how we can work together to raise awareness and change business as usual in the business of recruiting and retaining top talent.

What issues do you face daily? What can we do to fix those issues? Leave a comment below and let us know your take on tackling H1B and immigration reform in talent acquisition today.

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