America Needs Talent

​While much of the attention on U.S. immigration policy has focused on children and families at the southern border of the U.S., business leaders have a list of problems with the nation's employment-based immigration system they'd like to see fixed.

At the heart of those problems are job openings. Even as unemployment rates remain relatively high due to the pandemic, there just aren't enough job seekers with the skills and qualifications needed to fill critical positions. Many business leaders would welcome a more efficient and open immigration system that helps employers fill those jobs, grows the economy and doesn't chase away talent already in the U.S.

"Business leaders must understand that their company's growth depends on the strength of their current and future workforce," says Norberto Salinas, director of global workforce policy at Intel Corp. "We need a U.S. immigration system that is responsive to the need to address skills shortages and understands that the workforce is becoming more and more global in nature."

Top immigration issues for U.S. businesses include:

• Overall immigration levels.
  
• The number of visas issued for skilled workers and how those visas are distributed.
• The federal backlog of applications for employment-based visas for foreign workers.
• The legal status of people already in the U.S. who would like to stay, such as agricultural workers and "Dreamers," who were brought to the country illegally as children and grew up in the U.S. but whose immigration status is unsettled.

Population and Employment Trends

In the past decade, the U.S. population grew by 7.4 percent, according to the U.S. Census Bureau. That's the slowest rate of growth rate since the 1930s. That, combined with an aging workforce, could mean trouble for U.S. employers struggling to find employees for critical roles.

Immigration has helped keep the pipeline of workers full and contributed to economic growth, according to the nonpartisan research group National Foundation for American Policy. But the 2016 election of President Donald Trump caused a marked change in federal immigration policy, as the Trump administration made it more difficult for many immigrants to enter the U.S. The number of people moving to the U.S. minus those moving abroad dropped precipitously between 2016 and 2019, according to the foundation.

That decline hit rural areas particularly hard because international migration was generally the only source of population growth in those areas, and many of the jobs that had been filled by foreign workers remained open, stunting the growth of businesses.

Heather Smith Winkelmann has seen the situation up close in her role as president and managing director of the luxury resort Winvian Farm in rural Litchfield County, Conn. Usually, five of her staff of about 65 are immigrants on temporary visas because she can't find U.S. citizens to fill some jobs as waiters and kitchen staff in tiny Morris, Conn., which consists of little more than a local farm, her resort with 18 cottages, a post office, a town hall and a smattering of houses.

She says she understands some people's resistance to immigration: "They want to make sure American citizens can get work," she says. "But in my line of work, you can't get people who want to do these jobs. When you're not getting citizens applying for the jobs you have available, it makes it impossible to run a business efficiently."

Winkelmann pays above minimum wage and keeps compensation competitive, but like many other high-end properties that are part of the prestigious Relais & Châteaux network of hotels and restaurants, she struggles to fill jobs and get the visas she needs to hire foreign workers.

Many business leaders face that challenge and would like to see immigration levels rise.

"You have a lot of people who have a lot to give to our country and would work their butts off if they came," Winkelmann says.

Although Trump wanted to clamp down on immigration into the U.S., business trade groups, some members of both political parties and President Joe Biden are pushing for a pathway to citizenship for undocumented workers and greater levels of immigration, notes Frank D. Bean, a sociology professor at the University of California, Irvine and a researcher specializing in international migration.

For immigrants coming to the U.S., the number of employment-based green cards is capped at 140,000 each year. But that includes spouses and children, so the number of actual workers is much lower.

And countries that send fewer immigrants get preference. That means potential workers from countries such as China and India that already supply many immigrants to the U.S. have to wait even longer for a chance to get a green card. People from India with a master's degree who applied in 2010, for instance, are only now getting that chance, says Becki Young, partner at Grossman Young & Hammond LLC in Silver Spring, Md., who represents businesses in immigration matters.

Employment-Based Visas

While green cards grant immigrants permanent residency, various temporary visas allow workers to stay in the U.S. for a certain amount of time (and can lead to permanent resident status). H-1B visas, for instance, are open to high-tech professionals and those who work in STEM (science, technology, engineering and math) fields. H-2Bs are available for lower-tech laborers and seasonal workers such as landscapers.

"H-1B visas are definitely a priority for business," Young says. "There have not been enough of them for years." They used to be available throughout the year, but demand is so high now that they're snapped up the first day they're available each year with most applicants left in the lurch, she points out.

"U.S. employers have a pent-up demand for workers every year and want three times as many workers as they can get visas for," Young adds.

The Trump administration had proposed changing the way H-1Bs are doled out by setting a higher "prevailing wage" that must be paid to H-1B visa holders and prioritizing higher-wage workers over those who earn lower wages. Biden also has said he supports a wage-based allocation system so that the 85,000 H-1B visas would go to people with higher-paying jobs. (65,000 visas are available to workers in specialty occupations and an additional 20,000 go to workers with advanced degrees in their fields.) The wage-based system is designed to keep foreign workers from driving down wages for U.S. workers. But business leaders worry that few entry-level workers will end up getting the visas.

Critics say a wage-based system would disrupt a pipeline that brings bright foreign students to the U.S. for college. After graduation, they often enter the lottery for an H-1B visa to stay and work, and then apply for permanent residence. (H-1B visa holders can stay in the U.S. for up to six years if their visas are renewed for a second three-year period.) "That's how we attract and retain talent in STEM fields," Young says. "If we take away that pathway, there won't be enough domestic workers. The jobs will be outsourced."

Since visas are in high demand and short supply, students finishing at U.S. universities might be placed in line behind those with Ph.D.s and not get a chance to stay and work here, says Dane Linn, vice president of immigration and education and workforce policy of the Business Roundtable, a Washington, D.C.-based nonprofit association made up of CEOs.

"There are enough jobs to go around that it's not just about hiring people born in this country," Linn says.

The shortage of available talent in the tech industry typically gets considerable attention. But there's a need for STEM workers in many other industries that can't find workers domestically, such as cybersecurity specialists at retail chains, Linn says.

Many companies are not relying solely on immigration. They also are creating training programs for veterans and partnerships with community colleges and other schools to develop a pipeline of future U.S. workers.

Winvian Farm, owned by Winkelmann's mother and named after her grandparents, brings workers in on J-1 nonimmigrant (exchange visitor) visas. Work at the property, with unique cottages—even one with a helicopter inside—and the price tag to go with it, has a steep learning curve because of the level of service guests expect, Winkelmann says. So losing the foreign workers so soon after they're up to speed is a big hit.

Backlog Disrupts Business

When immigration slowed during the height of the pandemic last year, so did revenue from application fees that funds the operations of the U.S. Citizenship and Immigration Services. That lack of funding contributed to a significant slowdown in the processing of visas and work permits.

"This ongoing slowdown in processing has become very disruptive to businesses," says Jon Baselice, executive director of immigration policy at the U.S. Chamber of Commerce.

For instance, a company might sponsor a potential worker to come to the U.S., but when the application is approved years later, the person might not want to come anymore, Linn says.

During the Trump administration, "everything slowed down. It was a rough four years," Winkelmann says.

The backlog for green cards for employment-based immigrants surpassed 1.2 million in fiscal 2020. Along with the backlog, the Trump years also brought a sense of unpredictability about which temporary visa holders would have their stay in the U.S. renewed and which wouldn't, Linn says.

"It's difficult to plan your staffing strategy," Linn says. If they get rejected, applicants "go North and in three weeks they are on a path to citizenship [in Canada], and that talent is not coming back."

What About People Already in the U.S.?

There are about 11 million undocumented immigrants already in the U.S., and hundreds of thousands of other workers are in the country through temporary programs. Congress has wrestled in recent years with how to deal with some specific groups such as the "Dreamers." Most now are in college, working or in the armed services. For 20 years, Congress has been debating ways to give them a path to become citizens.

Linn's Business Roundtable and the U.S. Chamber of Commerce both favor the idea. Many "Dreamers" are essential workers, Linn says, and the majority have gone to college. "They have purchased homes, and they are contributing to the economy in many ways."

The Temporary Protected Status program, authorized by Congress in 1990, has allowed people from certain countries ravaged by disasters and other crises to stay and work temporarily in the U.S. The Trump administration tried to slash the program by stripping the protected status from nearly all of the roughly 400,000 immigrants benefiting from the program, but Biden has expanded it to people from Myanmar and Brazil and renewed it for people from countries already in the program. There's still no guaranteed path to citizenship for immigrants with protected status, however, despite many companies' support for the idea.

Farmworkers are another group many business leaders would like to see given the chance to become U.S. citizens. "Most of those individuals have worked for companies for 10, 15 years," Linn says. "They want some permanency in the U.S. They've contributed."

Biden's Immigration Agenda

Biden has proposed increasing the number of immigrants who can get green cards to migrate permanently to the U.S. Under his proposed legislation, for those coming to work (as opposed to joining a family member already in the U.S.), the cap would rise to 175,000 per year from 140,000 . But the increase actually would be much more generous since spouses and children coming with the worker would not be counted against the cap. Biden also would exempt from the cap people with Ph.D.s graduating from U.S. universities. In his State of the Union address, Biden renewed calls to provide permanent protections to "Dreamers" and immigrants on temporary protected status, as well as a pathway to citizenship for farmworkers.

It's too early to say what legislation will be able to pass Congress, but bipartisan lawmakers have been working to come up with a bill. Meanwhile, some changes could be accomplished through regulation instead of by law. In April, the government announced it would offer an extra 22,000 guest worker visas this year ahead of the summer work season in addition to the 66,000 H-2B visas already available to seasonal employees.

The Biden administration also may be keen to use regulations to undo actions by the Trump administration. For instance, the Biden administration increased the U.S. annual refugee admissions cap to 62,500. That's up from the cap of 15,000 set by the Trump administration, which Biden said in a statement "did not reflect America's values as a nation that welcomes and supports refugees."

Additionally, before Trump took office, workers in the U.S. on temporary visas who wanted to continue in the same job didn't need to submit to new interviews by immigration officials when their temporary visas were up for renewal unless there were questions about national security. Under the Trump administration, everyone was re-interviewed. "This only slows down processing and burdens agency resources that could be directed to more high-valued work," Intel's Salinas says.

Trump also made it easier to deny renewal of temporary visas by dropping an established practice that gave deference to previously approved petitions unless there was new evidence of fraud or changed circumstances. "This standard deference provided certainty in the adjudication process," Salinas says. In April, the Biden administration returned a measure of certainty to the process by reinstituting the standard.

"Business wants access to talent—that means immigration laws that provide better access, better certainty and [the] ability to ensure when [employees] are working for you they are not worried about being able to stay," Baselice says.

He says many businesses are hoping to see a permanent change to the Form I-9 verification system that requires employers to check every single employee to ensure they are who they say they are and are entitled to work in the U.S. Usually, the hiring officer must perform this documentation process in person, but during the coronavirus pandemic as businesses moved to remote operations, the federal government allowed them to verify identities virtually using video technology. Making that allowance permanent or allowing similar legal accommodations will help many companies that have far-flung satellite locations.

Whatever happens in regulation and law, business leaders agree the need for talent from outside the U.S. isn't going away.

Bean expects a continued shortage of labor for lower-skilled jobs, especially as many people choose college instead of work because of high unemployment. One of Biden's top priorities is a massive infrastructure upgrade.

"Who's going to do all the work?" Bean says. "You think there's enough workers around to do it? No way. There's not enough now."

Baselice agrees. "We're going to need immigrant workers in the future," he says. "It's as simple as that. If the U.S. is going to retain its competitive edge, we're going to need talent from around the world."

Tamara Lytle is a freelance writer based in the Washington, D.C., area.

Explore Further

SHRM provides advice and resources to help business leaders navigate the U.S. employment-based immigration system to find talented workers from abroad.

The First 100 Days: President Biden's Employment-Based Immigration Agenda
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Toolkit: Understanding and Obtaining U.S. Employment Visas
Employers can engage foreign nationals to work in the U.S. on a temporary or permanent basis under a variety of circumstances. In an increasingly globalized economy, business leaders should be familiar with the process for obtaining U.S. work visas.

HR Q&A: What Is the Foreign Labor Certification Process for Hiring Foreign Workers?Hiring foreign workers for employment in the U.S. typically requires approval from several government agencies. The actual procedures depend on the type of visa being requested.

How-to Guide: How to Sponsor an Individual for an H-1B Visa
The H-1B visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the U.S. The program is designed to help employers that cannot obtain needed business skills and abilities from the U.S. workforce for certain specialty occupations.

Should the U.S. Adopt a Merit-Based Immigration System?
Two experts—Julia Gelatt of the Migration Policy Institute and Jeremy L. Neufeld of the Niskanen Center—debate the issue. 

SHRM Resource Hub Page: Workplace Immigration
Modernizing employment-based immigration is crucial for employers to find talented workers. Leverage the information found in this resource center to learn how to tap into this talent pool.