Promoting Diversity and U.S. Business Immigration Laws

David H. Nachman
September 25, 2012 — 2,325 views  
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Most people would agree that a diverse workforce encourages utilization of skills to their fullest. Thus, diversity contributes to overall growth and prosperity of our nation. However, it is clear from Census and Labor Department studies that this is not what has been happening and progress toward diversity in the workplace still remains slow.  Economic growth in the State of New Jersey and in the U.S. has been on the rise for the past several years and yet there continues to be an increase in the disparity of contributions by  immigrant workers with the same qualifications and skill sets as U.S. workers.  

GLOBAL DIVERSITY OR BUREAUCRATIC HYPOCRISY?  Our nations’ immigration laws, while promoting diversity initiatives, have simultaneously established stumbling blocks to thwart diversity and cause financial disincentives to organizations wishing to infuse international workers into its employment pool. There are many special immigration programs that seek to promote “unique cultural exchange” between the U.S. and foreign countries.  These vital programs continue to be thwarted by new national security initiatives. For example, significant Consulate scrutiny and delays in the visa process slow the influx of individuals taking part in “culturally unique programs”. Recent U. S. Department of State (“DOS”) initiatives like requiring Security Advisory Opinions or listing technology workers on the Technical Alert List (“TAL”) have decreased immigration to the U.S. over the past several years. Many highly-skilled and talented workers bound for the U.S. now go to other countries.

In 1990, the U.S. immigration system was overhauled to take advantage of the “worldwide brain drain.” The U.S. loosened the immigration laws to let skilled and talented workers enter the U.S. to work and to study with the hope that they will stay and add value to the U.S. economy. Throughout the 1990’s, immigration of highly-skilled engineers, doctors and scientists continued. After 9/11, security increased and immigration of technology workers slowed dramatically.

The policy of increasing diversity in the workplace remains a focus of immigration policy initiatives. For example, the DOS continues to administer the “Diversity Lottery” which allows foreign nationals from under-represented countries to enter a lottery annually to obtain a green card. Also, the U.S. Department of Homeland Security (“DHS”), Citizenship and Immigration Service (“CIS”) and the DOS continue to  streamline and/or expedite exchange visitor or cultural exchange visitor entries into the U.S.    

THE NEW H-1B AND L-1 REFORM ACTS: DIVERSITY MAKERS OR BREAKERS? By not developing a diverse workforce from the top down, multicultural workers are unfairly relegated to lower-skilled, lower-pay positions and are not able to fulfill their true potential. Many corporations recognize that diversity contributes to the bottom line by: making it easier to retain good employees, lowering costs by developing skills in-house, and developing a reputation that helps attract new employees. This is especially important with the economy doing so well, and the demand for skilled labor at record levels.

On December 8th, 2004, President Bush signed the Omnibus Appropriations Act for Fiscal Year 2005 which contains provisions affecting the H-1B (the “H-1B Reform Act of 2004”) and L (the “L-1 Reform Act of 2004”) nonimmigrant visa categories. Both the H-1B and the L programs allow U.S. employers to sponsor temporary workers. Generally, these visa classifications allow businesses to transfer foreign national technology workers to the U.S. The transfers promote diversity and multicultural exchange in the technology divisions of U.S. and multinational business organizations. However, the new law does not promote diversity.  In fact, the new law inhibits H-1B and L-1 temporary transfers to the U.S.

H-1B disincentives began in the 1990’s with the imposition of a numerical cap.  Before October 1st, 2003, employers who used the H-1B program were required to pay an additional $1,000.00 fee imposed under the American Competitiveness and Workplace Improvement Act of 1998 (“ACWIA”). The additional $1000.00 fee (the “ACWIA Training Fee”) was slated to pay for U.S. workers to attend job training and to receive low income scholarships or grants for mathematics, engineering or science enrichment. The ACWIA Training Fee sunset on October 1st, 2003.  Employers breathed a deep sigh of relief.

The H-1B Reform Act of 2004 reinstitutes and raises the ACWIA Training Fee to $1,500.00.  Organizations that employ more than 25 full-time equivalent employees, are allowed to submit a reduced fee of $750.00.  The new fee under the H-1B Reform Act of 2004 applies to any non-exempt petitions filed after December 8th, 2004. Clearly, the ACWIA Training Fee does little to provide incentive for organizations to implement multicultural or diversity incentives utilizing the transfer of highly-skilled nonimmigrant workers.

The H-1B Reform Act of 2004 provides further disincentive for organizations to hire temporary foreign national workers by creating a new Fraud and Detection Fee of $500.00.  The new Fraud and Detection Fee will have to be paid by employers seeking to hire individuals in either H-1B or L-1 status after March 8th, 2005.  There appear to be no exemptions under the new law from the Fraud and Detection Fee with the exception of petitions to amend or extend an existing H-1B or L-1 nonimmigrant classification. It should be noted that each of the aforementioned additional fees is in addition to the base processing fee of $185.00 which is the filing fee for a Petition for a Nonimmigrant Worker (Form I-129).

Our nation’s immigration and nationality laws need to be grounded in a consistent policy that does not “flip and flop” on the critical nature of global diversity in the workplace. Our nation’s immigration laws should not “voice” a policy of diversity and eviscerate that policy with economic disincentives (higher filing fees, training fees, premium processing fees, fraud fees, etc.). Congress needs to reconsider the underpinnings of the Immigration and Nationality Act of 1990 and once again make our nation a “player” to win the race in the “world-wide brain drain”. Incentives for the immigration of highly-talented workers contribute to workplace diversity and boosts the U.S. and State economy. Certainly, national security is important. We always want to ensure that individuals coming to our shores are here to benefit our nation. We just need to be certain that our nation’s immigration laws do not come at the cost of sacrificing our nations’ ability to succeed as the world’s technology leader. 

David H. Nachman

Nachman Phulwani Zimovcak (NPZ) Law Group, P.C.

NPZ assists employers to get green cards and H-1B visas and O-1 visas for highly skilled foreign national workers. We assist employers with Form I-9, E-Verify, IMAGE and identity theft issues. We do family immigration, waivers and removal defense.