Where Immigration Law and Silicon Valley Overlap

By Zosha Millman | LXBN | March 11, 2016

In about a month President Obama’s major, stalled immigration reform rules will be argued before the Supreme Court. But the federal government isn’t just waiting around.

Today the U.S. government publishes a new rule extending the length of time international students earning degrees in STEM fields (science, technology, engineering, and mathematics) are allowed to stay post graduation. 

It’s not exactly DACA reform, but don’t expect these policies to go down easy; critics argue they’re not here to benefit the average unemployed U.S. worker. But the board is bigger for technology companies, who want to compete globally—that means they’re pushing hard for global crew.

Under the new rule, international STEM students can stay in the U.S. for up to three years of on-the-job training, starting May 10. That’s seven months longer than the previous 2008 rule. That difference may seem small, but it can make a big difference to the worker who’s applying for H-1B, the visa for so-called “skilled foreign workers.” The difference between 29-months and 36-months can allow a STEM grad an extra two opportunities to apply, while they continue to build professional within the country. Considering Congress caps H-1B slots at 65,000 per year, and they received about four times as many applications in last year’s lottery, more chances to play those odds are important.

They’ll come with more rules, of course. But even with those rules it’s no doubt a boost to STEM companies, whose industry leaders say they’re desperate for skilled talent. However, that doesn’t mean everyone’s happy about them, as The New York Times writes:

Industry leaders who say they are desperate for skilled talent and those defending the rights of American workers see the training program’s extension as an end-around to stalled reform. But that is all they agree upon.

“It’s an ongoing assault on American workers,” said John Miano, a lawyer for a technology workers’ union in Washington State, whose lawsuit last summer was what forced the government to vacate the previous rule and create a new one, this time for public comment.

…Mr. Miano says his group, the Washington Alliance of Technology Workers, is still arguing the legality of the program in an appeal. The next hearing will be in May at the United States Court of Appeals for the District of Columbia.

As the article also explains, a similar version of the rule was released in October, and attracted 50,000 comments, ranging from foreign students who appreciated the support to critics (sometimes unemployed tech workers themselves) who believed the government was “destroying this country.”

So why doesn’t the tech sector doesn’t see it this way? The cynical and critical say it’s because they’re getting young, cheap labor. Silicon Valley commands a whole lot of muscle these days, and they argue that’s enough for it to throw that weight behind its foreign workers over its U.S. ones. But the technology industry sees it differently.  

“They’re the smartest in their field, recognized as essential to the companies’ growth, yet this immigration system subjects them to second-class status,” said Robert Hoffman; a vice president with Oracle Corp. and co-chairman of Compete America, a coalition pushing to increase the number of work visas available; in an AP article.

Which is why this is not a black-and-white issue for Silicon Valley—nor is it short one. They want to do business on a global level, and that means hiring the best talent out there. If that means leaving the U.S. pool to find it, then so be it.

And it’s not just employers having this problem. If the American dream is one where the streets are paved with gold, Silicon Valley’s promise is even more alluring, and sometimes whole companies hinge on immigration status. The problem is, it doesn’t always come in a nice, H-1B package, as Bloomberg reports:

There is no visa specifically designed for foreigners who start companies in the U.S. A six-year effort to create one died in Congress last year. Legislation won’t have a chance at passing until at least 2017 and more likely not until 2022, said Craig Montuori, an advocate for reform who estimates that hundreds of founders in the U.S. are struggling to get federal work authorization. “We got a lot of support on Capitol Hill and very little opposition, but few people were willing to make it a priority,” he said.

In Washington, most of the debate around tech visas centers on H-1Bs, typically used by big companies and research universities. Lobbying groups such as Mark Zuckerberg’s FWD.us say more H-1B visas would keep U.S. companies from losing out on top talent. Protectionist legislators and Republican front-runner Donald Trump say they depress wages and take jobs away from Americans. Either way, H-1Bs aren’t a practical option for startups because they’re tough to get and meant for employees, not founders.

And so the tech industry is amongst the loudest voices in the debate on immigration. This week more than 60 businesses and tech leaders; including the co-founders of LinkedIn, PayPal, and Facebook; doubled down on their support of more liberal immigration policies, co-signing a brief submitted to the Supreme Court in support of Obama’s immigration executive actions. In their letter they argue immigrant workers, who launched a quarter of the high-tech companies founded in the U.S. in the past decade, bring innovation and entrepreneurship that the U.S. can benefit from. Which, several sources back them up on.

Whether the tech industry gets its way on this one remains to be seen. But with more and more companies expanding around the globe, it’s clear that if the U.S. wants to hang they might need to shell out some visas.

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