Charts of the day, US legal immigration edition

By Felix Salmon
February 9, 2012
welcome them in.

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In general, immigration is incredibly healthy for any economy. Immigrants tend to work hard, boost GDP, fill jobs which would otherwise be hard to fill, and also create jobs of their own. But whatever’s true of immigrants in general is much more true of legal immigrants. And whatever’s true of legal immigrants in general is much more true of smart, high-qualified legal immigrants.

The US has various visas specifically designed to encourage the kind of skilled, legal immigration which has driven its economy for nearly all of its history. The three main ones are the O visa, the H visa, and the L visa. The O visa is a small program for “aliens of extraordinary ability”, and the H visa all but suffocated under its own popularity in 2007 and 2008. But the L visa kept on allowing people in. It’s given to employees of foreign companies, who have spent at least a year working for that company abroad, and who are only allowed to work for that company when they’re in the US. And historically it’s been quite easy to get, with Customs Immigration rejecting fewer than one in ten applicants. Until:

denial.tiff

This is bad, but it gets worse — the spike in denials seems to target specific countries over others. In 2008 the L-1B denial rate stood between 2% and 3% for India, Canada, Mexico, and the UK. In 2009, it rose: to 2.9% in Canada, and 4.1% in the UK. And 15.1% in Mexico. And 22.5% in India.

Meanwhile, in order to make things even harder, Customs Immigration didn’t just approve the applications that they didn’t deny. Instead, they increasingly sent them back with RFEs, or “requests for evidence” — a layer of bureaucracy which at best adds months to the visa-application process and makes it much harder for global companies to move employees to where they might be urgently needed. If you think the rise in denial rates is bad, just check this out:

RFE.tiff

It really does look as though Customs Immigration is in the middle of a massive crackdown on L-1B applications here. Now, why would they do that? Maybe because the number of applications was suddenly very high? No — it turns out that the drop in L-1B applications for Indians, the people who suffered the brunt of the crackdown, preceded the crackdown by a couple of years.

petitions.tiff

If you look at this last chart, what you’re seeing is just the number of L-1B visa applications from Indians. It’s falling sharply enough on its own — but then on top of that an increasing number of those petitions is being denied, and most of the rest are being sent back with an RFE.

All too often, the questions in the RFE, or the reasons for rejection, seem to imply rules which simply don’t exist:

Employers say that at times they believe applicants are rejected for L-1B status if a particular consular officer or an adjudicator believes a company could not possibly have more than three to five people with specialized knowledge in a particular area. Nothing in the statute or regulations indicates “specialized knowledge” need be restricted to a handful of people in a company. In fact, in companies employing thousands of people in highly specialized fields and product lines, it would not even be feasible to operate in most circumstances if specialized knowledge was restricted to three or four people at a time in a specific subject area, product or service.

Another type of denial, employers say, comes from USCIS adjudicators and consular officers requiring a standard of “extraordinary ability” be met to permit the transfer of employees into the United States with specialized knowledge. Requests for Evidence for L-1B have included asking whether the individual received a patent. And companies note that even patent holders have been denied L-1B petitions under the new, arbitrary standards.

Of course, Customs Immigration has discretion to reject anybody for any or no reason. No one has the right to immigrate to the US. But it does seem here that the US is rejecting far too many people — as though their job is to keep them out, rather than welcome them in.

Thanks to the National Foundation for American Policy for putting these charts together. As they note, everybody rejected has had a huge amount of money and effort put into their application. And so it does seem as though something bad is going on here.

Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.

American cities won’t win the global competition for talent if federal officials keep on behaving like this. Canada can do this stuff well; why can’t the US?

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