ALBERT H. TEICH
Current visa policies and regulations pose hurdles for the nation’s scientific and education enterprise. This set of proposals may offer an effective, achievable, and secure way forward.
Alena Shkumatava leads a research group at the Curie Institute in Paris studying how an unusual class of genetic material called noncoding RNA affects embryonic development, using zebrafish as a model system. She began this promising line of research as a postdoctoral fellow at the Massachusetts Institute of Technology’s Whitehead Institute. She might still be pursuing it there or at another institution in the United States had it not been for her desire to visit her family in Belarus in late 2008. What should have been a short and routine trip “turned into a three-month nightmare of bureaucratic snafus, lost documents and frustrating encounters with embassy employees,” she told the New York Times. Discouraged by the difficulties she encountered in leaving and reentering the United States, she left MIT at the end of her appointment to take a position at the Curie Institute.
Shkumatava’s experience, along with numerous variations, has become increasingly familiar—and troublesome for the nation. For the past 60 years, the United States has been a magnet for top science and engineering talent from every corner of the world. The contributions of hundreds of thousands of international students and immigrants have helped the country build a uniquely powerful, productive, and creative science and technology enterprise that leads the world in many fields and is responsible for much of the growth of the U.S. economy and the creation of millions of high-value jobs. A few statistics suggest just how important foreign-born talent is to U.S. science and technology:
- More than 30% of all Nobel laureates who have won their prizes while working in the United States were foreign-born.
- Between 1995 and 2005, a quarter of all U.S. high-tech startups included an immigrant among their founders.
- Roughly 40% of Fortune 500 firms—Google, Intel, Yahoo, eBay, and Apple, among them—were started by immigrants or their children.
- At the 10 U.S. universities that have produced the most patents, more than three out of every four of those patents involved at least one foreign-born inventor.
- More than five out of six patents in information technology (IT) in the United States in 2010 listed a foreign national among the inventors.
But the world is changing. The United States today is in a worldwide competition for the best scientific and engineering talent. Countries that were minor players in science and technology a few years ago are rapidly entering the major leagues and actively pursuing scientific and technical talent in the global marketplace. The advent of rapid and inexpensive global communication and air travel that is within easy reach of researchers in many countries have fostered the growth of global networks of collaboration and are changing the way research is done. The U.S. visa and immigration systems need to change, too. Regulations and procedures have failed to keep pace with today’s increasingly globalized science and technology. Rather than facilitating international commerce in talent and ideas, they too often inhibit it, discouraging talented scientific visitors, students, and potential immigrants from coming to and remaining in the United States. They cost the nation the goodwill of friends and allies and the competitive advantage it could gain from their participation in the U.S. research system and from increased international collaboration in cutting-edge research efforts.
It is easy to blame the problems that foreign scientists, engineers, and STEM (science, technology, engineering, and mathematics) students encounter in navigating the U.S. visa and immigration system or the more intense scrutiny imposed on visitors and immigrants in the aftermath of 9/11. Indeed, there is no question that the reaction to the attacks of 9/11 caused serious problems for foreign students and scientific visitors and major disruptions to many universities and other scientific institutions. But many of the security-related issues have been remedied in the past several years. Yet hurdles remain, derived from a more fundamental structural mismatch between current visa and immigration policies and procedures and today’s global patterns of science and engineering education, research, and collaboration. If the United States is going to fix the visa and immigration system for scientists, engineers, and STEM students, it must address these underlying issues as well as those left over from the enhanced security regime of the post-9/11 era.
Many elements of the system need attention. Some of them involve visa categories developed years ago that do not apply easily to today’s researchers. Others derive from obsolescent immigration policies aimed at determining the true intent of foreigners seeking to enter the United States. Still others are tied to concerns about security and terrorism, both pre- and post-9/11. And many arise from the pace at which bureaucracies and legislative bodies adapt to changing circumstances. Here I offer a set of proposals to address these issues. Implementing some of the proposals would necessitate legislative action. Others could be implemented administratively. Most would not require additional resources. All are achievable without compromising U.S. security. Major components of these proposals include:
Simplify complex J-1 exchange visitor visa regulations and remove impediments to bona fide exchange. The J-1 visa is the most widely used type for visitors coming temporarily to the United States to conduct research or teach at U.S. institutions. Their stays may be as brief as a few weeks or as long as five years. The regulations governing the J-1 visa and its various subcategories, however, are complex and often pose significant problems for universities, research laboratories, and the scientific community, as illustrated by the following examples.
Implementing some of the proposals would necessitate legislative action. Others could be implemented administratively. All are achievable without compromising U.S. security.
A young German researcher, having earned a Ph.D. in civil and environmental engineering in his home country, accepted an invitation to spend 17 months as a postdoctoral associate in J-1 Research Scholar status at a prestigious U.S. research university. He subsequently returned to Germany. A year later, he applied for and was awarded a two-year fellowship from the German government to further his research. Although he had a U.S. university eager to host him for the postdoctoral fellowship, a stipulation in the J-1 exchange visitor regulations that disallows returns within 24 months prevented the university from bringing him back in the Research Scholar category. There was no other visa for such a stay, and the researcher ultimately took his talent and his fellowship elsewhere.
A tenured professor in an Asian country was granted a nine-month sabbatical, which he spent at a U.S. university, facilitated by a J-1 visa in the Professor category. He subsequently returned to his country of residence, his family, and his position. An outstanding scholar, described by a colleague as a future Nobel laureate, he was appointed a permanent visiting professor at the U.S. university the following year. Because of the J-1 regulations, however, unless he comes for periods of six months or less when he visits, he cannot return on the J-1 exchange visitor visa. And if he does return for six months or less multiple times, he must seek a new J-1 program document, be assigned a new ID number in the Student and Exchange Visitor Information System (SEVIS), pay a $180 SEVIS fee, and seek a new entry visa at a U.S. consulate before each individual visit. The current J-1 regulations also stipulate that he must be entering the United States for a new “purpose” each time, which could pose additional problems.
The J-1 is one of three visa categories used by most STEM students and professional visitors in scientific and engineering fields coming to the United States: F-1 (nonimmigrant student), J-1 (cultural or educational exchange visitor), or H-1B (temporary worker in a specialty occupation). B1/ B2 visas (visits for business, including conferences, or pleasure or a combination of the two) are also used in some instances. Each of these categories applies to a broad range of applicants. The F-1 visa, for example, is required not just for STEM students but for full-time university and college students in all fields, elementary and secondary school students, seminary students, and students in a conservatory, as well as in a language school (but not a vocational school). Similarly, the J-1 covers exchange visitors ranging from au pairs, corporate trainees, student “interns,” and camp counselors to physicians and teachers as well as professors and research scholars. Another J-1 category is for college and university students who are financed by the United States or their own governments or those participating in true “exchange” programs. The J-1 exchange visitor visa for research scholars and professors is, however, entangled in a maze of rules and regulations that impede rather than facilitate exchange.
In 2006, the maximum period of participation for J-1 exchange visitors in the Professor and Researcher categories was raised from three years to five years. That regulatory change was welcomed by the research community, in which grant funding for a research project or a foreign fellowship might exceed three years, but there was formerly no way to extend the J-1 visa of the researcher.
However, the new regulations simultaneously instituted new prohibitions on repeat exchange visitor program participation. In particular, the regulations prohibit an exchange visitor student who came to the United States to do research toward a Ph.D. (and any member of his family who accompanied him) from going home and then returning to the United States for postdoctoral training or other teaching or research in the Professor or Research Scholar category until 12 months have passed since the end of the previous J program.
A 24-month bar prohibits a former Professor or Researcher (and any member of her family who accompanied her) from engaging in another program in the Professor or Researcher category until 24 months have passed since the end date of the J-1 program. The exception to the bars is for professors or researchers who are hosted by their J program sponsor in the Short-Term Scholar category. This category has a limit of six months with no possibility of extension. The regulations governing this category indicate that such a visitor cannot participate in another stay as a Short-Term Scholar unless it is for a different purpose than the previous visit.
There are valid reasons for rules and regulations intended to prevent exchange visitors from completing one program and immediately applying for another. In other words, the rules should ensure that exchanges are really exchanges and not just a mechanism for the recruitment of temporary or permanent workers. It appears that the regulation was initially conceived to count J-1 program participation toward the five-year maximum in the aggregate. However, as written, the current regulations have had the effect of imposing the 24-month bar on visitors in the Professor and Researcher categories who have spent any period of participation (one month, seven months, or two years), most far shorter than the five-year maximum. Unless such a visitor is brought in under the Short-Term Scholar category (the category exempt from the bars) for six months or less only, the 24-month bar applies. Similarly, spouses of former J-1 exchange visitors in the Professor or Researcher categories who are also researchers in their own right and have spent any period as a J-2 “dependent” while accompanying a J-1 spouse are also barred from returning to the United States to engage in their own J-1 program as a Professor or Researcher until 24 months have passed. This applies whether or not that person worked while in the United States as a J-2. In addition, spouses subject to the two-year home residency requirement (a different, statutory bar based on a reciprocal agreement between the United States and foreign governments) cannot change to J-1 status inside the United States or seek a future J-1 program on their own.
The concept of “exchange,” born in the shadow of the Cold War, must be expanded to include the contemporary realities of worldwide collaboration.
U.S. universities are increasingly engaging in longer-term international research projects with dedicated resources from foreign governments, private industry, and international consortia, and are helping to build capacity at foreign universities, innovation centers, and tech hubs around the world. International researchers travel to the United States to consult, conduct research, observe, and teach the next generation of STEM students. The concept of “exchange,” born in the shadow of the Cold War, must be expanded to include the contemporary realities of worldwide collaboration and facilitate rather than inhibit frequent and repeat stays for varying periods.
In practice, this means rationalizing and simplifying J-1 exchange visitor regulations. Although an immigration reform bill developed in the Senate (S.744) makes several changes in the J-1 program that are primarily aimed at reducing abuses by employers who bring in international students for summer jobs, it does not address issues affecting research scholars or professors.
It may be possible, however, to make the needed changes by administrative means. In December 2008, the Department of State released a draft of revised regulations governing the J-1 exchange visitor visa with a request for comment. Included in the draft rule were changes to program administration, insurance requirements, SEVIS reporting requirements, and other proposed modifications. Although many comments were submitted, until recently there did not appear to be any movement on the provisions of most concern to the research community. However, the department is reported to have taken up the issue again, and a new version of the regulations is anticipated. This may prove to be a particularly opportune time to craft a regulatory fix to the impediments inherent in the 12- and 24-month bars.
Reconsider the requirement that STEM students demonstrate intent to return home. Under current immigration law, all persons applying for a U.S. visa are presumed to be intending to immigrate. Section 214(b) of the Immigration and Naturalization Act, which has survived unchanged since the act was passed in 1952, states, “Every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for admission, that he is entitled to a nonimmigrant status…”
In practice, this provision means that a person being interviewed for a nonimmigrant visa, such as a student (F-1) visa, must persuade the consular officer that he or she does not intend to remain permanently in the United States. Simply stating the intent to return home after completion of one’s educational program is not enough. The applicant must present evidence to support that assertion, generally by showing strong ties to the home country. Such evidence may include connections to family members, a bank account, a job or other steady source of income, or a house or other property. For students, especially those from developing nations, this is often not a straightforward matter, and even though U.S. consular officers are instructed to take a realistic view of these young people’s future plans and ties, many visa applicants fail to meet this subjective standard. It is not surprising, therefore, that the vast majority of visa denials, including student visas, are due to 214(b), because of failure to overcome the presumption of immigrant intent.
The Immigration and Naturalization Act was written in an era when foreign students in the United States were relatively rare. In 1954–1955, for example, according to the Institute for International Education, there were about 34,000 foreign students studying in higher education institutions in the United States. In contrast, in 2012–2013 there were more than 819,000 international students in U.S. higher education institutions, nearly two-thirds of them at doctorate-granting universities. In the early post–World War II years, the presence of foreign students was regarded as a form of international cultural exchange. Today, especially in STEM fields, foreign graduate students and postdocs make up a large and increasingly essential element of U.S. higher education. According to recent (2010) data from the National Science Foundation, over 70% of full-time graduate students (master’s and Ph.D.) in electrical engineering and 63% in computer science in U.S. universities are international students. In addition, non-U.S. citizens (not including legal permanent residents) make up a majority of graduate students nationwide in chemical, materials, and mechanical engineering.
In the sense that it prevents prospective immigrants from using student visas as a “back door” for entering the United States (that is, if permanent immigrant status is the main, but unstated, purpose of seeking a student visa), it might be argued that 214(b) is serving its intended purpose. The problem, however, is the dilemma it creates for legitimate students who must demonstrate the intent to return home despite a real and understandable uncertainty about their future plans.
Interestingly, despite the obstacles that the U.S. immigration system poses, many students, especially those who complete a Ph.D. in a STEM field, do manage to remain in the country legally after finishing their degrees. This is possible because employment-based visa categories are often available to them and permanent residence, if they qualify, is also a viable option. The regulations allow F-1 visa holders a 60-day grace period after graduation. In addition, graduating students may receive a one-year extension for what is termed Optional Practical Training (OPT), so long as they obtain a job, which may be a paying position or an unpaid internship. Those who receive a bachelor’s, master’s, or doctorate in a STEM field at a U.S. institution may be granted a one-time 17-month extension of their OPT status if they remain employed.
While on F-1 OPT status, an individual may change status to an H-1B (temporary worker) visa. Unlike the F-1 visa, the H-1B visa does allow for dual intent. This means that the holder of an H-1B visa may apply for permanent resident status—that is, a green card—if highly qualified. This path from student status to a green card, circuitous though it may be, is evidently a popular one, especially among those who receive doctorates, as is shown by the data on “stay rates” for foreign doctorate recipients from U.S. universities.
Michael G. Finn of the Oak Ridge Institute for Science and Education has long tracked stay rates of foreign citizens who receive STEM doctorates in the United States. His 2009 report (the most recent available) indicates that of 9,223 foreign nationals who received science and engineering doctorates at U.S. universities in 1999, two-thirds were still in the United States 10 years later. Indeed, among those whose degrees were in physical and life sciences, the proportion remaining in the United States was about three-quarters.
Reform of 214(b) poses something of a dilemma. Although State Department officials understandably prefer not to discuss it in these terms, they evidently value the broad discretion it provides consular officers to exclude individuals who they suspect, based on their application or demeanor, pose a serious risk of absconding and/or overstaying their visa, but without having to provide specific reasons. One might argue that it is important to give consular officers such discretion, since they are, in most cases, the only officials from either the federal government or the relevant academic institution who actually meet the applicant face-to-face.
On the other hand, 214(b) may also serve to deter many otherwise well-qualified potential students from applying, especially those from developing nations, who could become valuable assets for the United States or their home countries with a U.S. STEM education.
What is needed is a more flexible policy that provides the opportunity for qualified international students who graduate with bachelor’s, master’s, or Ph.D. STEM degrees to remain in the United States if they choose to do so without allowing the student visa to become an easy way to subvert regulations on permanent immigration. It makes no sense to try to make such distinctions by denying the fact that someone who is applying to study in the United States may be uncertain about their plans four (or more) years later.
Because 214(b) is part of the Immigration and Naturalization Act, this problem requires a legislative fix. The immigration reform bill that passed the Senate in June 2013 (S.744) contains a provision that would allow dual intent for nonimmigrant students seeking bachelor’s or graduate degrees. [The provision applies to students in all fields, not just STEM fields. A related bill under consideration in the House of Representatives (H.R.2131) provides dual intent only for STEM students. However, no action has been taken on it to date.] Some version of this approach, which provides for discretion on the part of the consular officer without forcing the student visa applicant to make a choice that he or she is not really capable of making, is a more rational way to deal with this difficult problem.
Speed up the Visas Mantis clearance process and make it more transparent. A major irritant in the visa and immigration system for scientists, engineers, and STEM students over the past decade has been the delays in visa processing for some applicants. A key reason for these delays is the security review process known as Visas Mantis, which the federal government put in place in 1998 and which applies to all categories of nonimmigrant visas. Although reforms over the past several years have eased the situation, additional reforms could further improve the process.
Initially intended to prevent transfers of sensitive technologies to hostile nations or groups, Visas Mantis was used at first in a relatively small number of cases. It gained new prominence, however, in the wake of 9/11 and the heightened concern over terrorism and homeland security that followed. The number of visa applicants in scientific and engineering fields subject to Mantis reviews took a sudden jump in 2002 and 2003, causing a logjam of applications and no end of headaches for the science, engineering, and higher education communities. The number of Mantis reviews leapt from 1,000 cases per year in 2000 to 14,000 in 2002 and an estimated 20,000 in 2003. The State Department and the other federal agencies involved were generally unprepared for the increased workload and were slow to expand their processing capacity. The result was a huge backlog of visa applications and lengthy delays for many foreign students and scientists and engineers seeking to come to the United States. The situation has improved since then, although there have been occasional slowdowns, most likely resulting from variations in workload or staffing issues.
The Mantis process is triggered when a consular officer believes that an applicant might not be eligible for a visa for reasons related to security. If the consular officer determines that security concerns exist, he or she then requests a “security advisory opinion” (SAO), a process coordinated through an office in the State Department in which a number of federal agencies review the application. (The federal government does not provide the names of the agencies involved in an SAO, but the MIT International Scholars Office lists the FBI, CIA, Drug Enforcement Agency, Department of Commerce, Office of Foreign Assets Control, the State Department Bureau of International Security and Nonproliferation, and others, which seems like a plausible list.) Consideration of the application is held up pending approval by all of the agencies. The applicant is not informed of the details of the process, only that the application is undergoing “administrative processing.”
In most cases, the decision to refer an application for an SAO is not mandatory but is a matter of judgment on the part of the consular officer. Because most consular officers do not have scientific or technical training, they generally refer to the State Department’s Technology Alert List (TAL) to determine whether an application raises security concerns. The current TAL is classified, but the 2002 version is believed to be similar and is widely available on the Internet (for example, at . It contains such obviously sensitive areas as nuclear technology and ballistic missile systems, as well as “dual-use” areas such as fermentation technology and pharmacology, the applications of which are generally regarded as benign but can also raise security concerns. According to the department’s Foreign Affairs Manual, “Officers are not expected to be versed in all the fields on the list. Rather, [they] should shoot for familiarization and listen for key words or phrases from the list in applicants’ answers to interview questions.” It is also suggested that the officers consult with the Defense and Homeland Security attachés at their station. The manual notes that an SAO “is mandatory in all cases of applicants bearing passports of or employed by states designated as state sponsors of terrorism” (currently Cuba, Iran, Sudan, and Syria) engaged in commercial or academic activities in one of the fields included in the TAL. As an aside, it is worth noting that although there are few if any students from Cuba, Sudan, and Syria in the United States, Iran is 15th among countries of origin of international students, ahead of such countries as France, Spain, and Indonesia, and a majority of Iranian students (55%) are majoring in engineering fields.
In the near-term aftermath of 9/11, there were months when the average time to clear a Mantis SAO reached nearly 80 days. Within a year, however, it had declined to less than 21 days, and more recently, despite the fact that the percentage of F-1, J-1, and H-1B applications subject to Mantis SAO processing reached 10% in 2010, according to State Department data, the average processing time is two to three weeks. Nevertheless, cases in which visas are reported to be in “administrative processing” for several months or even longer are not uncommon. In fact, the State Department tells applicants to wait at least 60 days from the date of their interview or submission of supplementary documents to inquire about the status of an application under administrative processing.
In most cases, Mantis clearances for students traveling under F visas are valid for the length of their educational programs up to four years, as long as they do not change programs. However, students from certain countries (e.g., Iran) require new clearances whenever they leave the United States and seek to reenter. Visas Mantis clearances for students and exchange visitors under J visas and temporary workers under H visas are valid for up to two years, unless the nature of their activity in the United States changes. And B visa clearances are good for a year with similar restrictions.
The lack of technical expertise among consular officers is a concern often expressed among scientists who deal with visa and immigration issues. The fact that most such officers are limited in their ability to make independent judgments (for example, on the need for a Mantis review of a researcher applying for a J-1 exchange visitor visa) may well increase the cost of processing the visa as well as lead to unnecessary delays. The National Academy of Sciences report Beyond Fortress America, released in 2009, suggested that the State Department “include expert vouching by qualified U.S. scientists in the non-immigrant visa process for well-known scholars and researchers.” This idea, attractive as it sounds to the science community, seems unlikely to be acceptable to the State Department. Although “qualified U.S. scientists” could attest to the scientific qualifications and reputations of the applicants, they would not be able to make informed judgments on potential security risks and therefore could not substitute for Mantis reviews.
An alternative that might be more acceptable would be to use scientifically trained staff within the State Department—for example, current and former American Association for the Advancement of Science (AAAS) Science and Technology Policy Fellows or Jefferson Science Fellows sponsored by the National Academies—as advisers to consular officers. Since 1980, AAAS has placed over 250 Ph.D. scientists and engineers from a wide range of backgrounds in the State Department as S&T Policy Fellows. Over 100 are still working there. In the 2013–2014 fellowship year, there were 31. In addition, there were 13 Jefferson Science Fellows—tenured senior faculty in science, engineering, or medicine—at the State Department or the Agency for International Development, a number that has grown steadily each year since the program was started in 2004. These highly qualified individuals, a few of whom are already stationed at embassies and consulates, should be available on an occasional basis to augment consular officers’ resources. They, and other Foreign Service Officers with technical backgrounds, would be especially useful in countries that send large numbers of STEM students and visitors to the United States, such as China, India, and South Korea.
Measures that enhance the capacity of the State Department to make technical judgments could be implemented administratively, without the need for legislative action. A policy that would limit the time available for the agencies involved in an SAO to review an application could also be helpful. Improving the transparency of the Mantis process poses a dilemma. If a visa applicant poses a potential security risk, the government can hardly be expected to inform the applicant about the details of the review process. Nevertheless, since the vast majority of Mantis reviews result in clearing the applicant, it might be beneficial to both the applicant and the government to provide periodic updates on the status of the review without providing details, making the process at least seem a little less Kafkaesque.
Allow scientists and scholars to apply to renew their visas in the United States. Many students, scholars, and scientists are in the United States on long-term programs of study, research, or teaching that may keep them in the country beyond the period of validity of their visas. Although U.S. Citizenship and Immigration Services (USCIS) is able to extend immigration status as necessary to cover these programs, approval of status extension from USCIS is not the same thing as a valid visa that would enable international travel. Often, due to the need to attend international conferences, attend to personal business, or just visit family, students and scholars can find themselves in a situation where they have temporarily departed the United States but are unable to return without extensive delays for processing a visa renewal abroad. As consular sections may be uncomfortable positively adjudicating visa applications for those outside of their home country, it is not uncommon for applicants to be asked to travel from a third country back to their country of origin for visa processing, resulting in even greater expense and delay.
Until June 2004, the Department of State allowed many holders of E, H1-B, L, and O visas to apply for visa renewal by mail. This program was discontinued in the wake of 9/11 because of a mixture of concerns over security, resource availability, and the implementation of the then-new biometric visa program. Now, however, every nonimmigrant visa holder in the United States has already had electronic fingerprints collected as part of their visa record. Security screening measures have been greatly improved in the past decade. In addition, the Omnibus Spending Bill passed in early 2014 included language directing the State Department to implement a pilot program for the use of videoconferencing technology to conduct visa interviews. The time is right to not only reinstitute the practice of allowing applications for visa renewal inside the United States for those categories previously allowed, but also to expand the pool of those eligible for domestic renewal to include F-1 students and J-1 academic exchanges.
What is needed is a more flexible policy that provides the opportunity for qualified international students to remain in the United States without allowing the student visa to become an easy way to subvert regulations on permanent immigration.
Reform the H-1B visa to distinguish R&D scientists and engineers from IT outsourcers. Discussion of scientists, engineers, and STEM students has received relatively little attention in the current debate on immigration policy, with one significant exception: the H-1B visa category. This category covers temporary workers in specialty occupations, including scientists and engineers in R&D (as well as, interestingly enough, fashion models of “distinguished merit and ability”). An H-1B visa is valid for three years, extendable for another three. The program is capped at 65,000 each fiscal year, but an additional 20,000 foreign nationals with advanced degrees from U.S. universities are exempt from this ceiling, and all H-1B visa holders who work at universities and university- and government-affiliated nonprofits, including national laboratories are also exempt.
Controversy has swirled about the H-1B program for the past several years as advocates of the program, citing shortages of domestic talent in several fields, have sought to expand it, while critics, denying the existence of shortages, express concern instead about unemployment and underemployment among domestically trained technical personnel and have fought expansion. Moreover, although the H-1B visa is often discussed as if it were a means of strengthening U.S. innovation by bringing more scientists and engineers to the United States or retaining foreign scientists and engineers who have gained a degree in this country, the program increasingly seems to serve a rather different purpose. Currently, the overwhelming majority of H-1B recipients work in computer programming, software, and IT. In fact, the top H-1B visa job title submitted by U.S. employers in fiscal 2013 was programmer analyst, followed by software engineer, computer programmer, and systems analyst. At least 21 of the top 50 job titles were in the fields of computer programming, software development, and related areas. The top three company sponsors of H-1B visa recipients were IT firms (Infosys Limited, Wipro, and Tata Consultancy Services, all based in India) as were a majority of the top 25. Many of these firms provide outsourcing of IT capabilities to U.S. firms with foreign (mainly Indian) staff working under H-1Bs. This practice has come under increasing scrutiny recently as the largest H-1B sponsor, Infosys, paid a record $34 million to settle claims of visa abuse brought by the federal government. Visa abuse aside, it is difficult to see how these firms and the H-1B recipients they sponsor contribute to strengthening innovation in the United States.
Reform of the H-1B program has been proposed for years, and although little action has been taken so far, this may change soon as the program is under active discussion as part of the current immigration debate. Modifications included in the Senate bill (S.744) would affect several important provisions of the program. The annual cap on H-1B visas would be increased from 65,000 to a minimum of 115,000, which could be raised to 180,000. The exemption for advanced degree graduates would be increased from 20,000 to 25,000 and would be limited to STEM graduates only. Even more important, the bill would create a new merit-based point system for awarding permanent residency permits (green cards). Under it, applicants would receive points for education, the number increasing from bachelor’s to doctoral degrees. Although there would be a quota for these green cards, advanced degree recipients from U.S. universities would be exempt, provided the recipient received his or her degree from an institution with a Carnegie classification of “very high” or “high” research activity, has an employment offer from a U.S. employer, and received the degree no more than five years before applying. This would be tantamount to “stapling a green card to the diploma”—terminology suggested by some advocates—and would bypass the H-1B program entirely.
The Senate bill retains the exemption of visa holders who work at universities and university- and government-affiliated nonprofits from the H-1B cap. Expanding this exemption to include all Ph.D. scientists and engineers engaged in R&D is also worth considering, although it does not appear to be part of either the Senate or the House bills. This would put Ph.D. researchers and their employers in a separate class from the firms that use the program for outsourcing of IT personnel. It would remove the issues relating to H-1B scientists and engineers from the debate over outsourcing and allow them to be discussed on their own merits—namely, their contribution to strengthening R&D and innovation in the United States.
Expand the Visa Waiver Program to additional countries. The Visa Waiver Program (VWP) allows citizens of a limited number of countries (currently 37) to travel to the United States for certain purposes without visas. Although it does not apply to students and exchange visitors under F and J visas, it does include scientists and engineers attending conferences and conventions who would otherwise travel under a B visa, as well as individuals participating in short-term training (less than 90 days) and consulting with business associates.
There is little doubt that the ability to travel without going through the visa process—application, interview, security check—greatly facilitates a visit to the United States for those eligible. The eligible countries include mainly the European Union nations plus Australia, New Zealand, South Korea, Singapore, and Taiwan. Advocates of reforming visa policy make a convincing argument that expanding the program to other countries would increase U.S. security. Edward Alden and Liam Schwartz of the Council on Foreign Relation suggest just that in a 2012 paper on modernizing the U.S. visa system. They note that travelers under the VWP are still subject to the Electronic System of Travel Authorization (ESTA), a security screening system that vets individuals planning to come to the United States with the same intelligence information that is used in visa screening. Security would be enhanced rather than diminished by expanding the VWP, they argue, because governments of the countries that participate in the program are required to share security and criminal intelligence information with the U.S. government.
Visa-free travel to conferences and for short-term professional visits by scientific and engineering researchers from the 37 countries in the VWP makes collaboration with U.S. colleagues much easier than it would otherwise be. And it would undoubtedly be welcomed by those in countries that are likely candidates for admission to the program. Complicating matters, however, is legislation that requires the Department of Homeland Security (DHS) to implement a biometric exit system (i.e., one based on taking fingerprints of visitors as they leave the country and matching them with those taken on entry) before it can expand the VWP. The federal government currently has a “biographic” system that matches names on outbound manifests provided by the airlines with passport information obtained by U.S. Customs and Border Protection on a person’s entry. A biometric exit system would provide enhanced security, but the several-billion-dollar cost and the logistics of implementing a control system pose formidable barriers. Congress and the Executive Branch have engaged in a tug of war over the planning and development of such a system for over a decade. (The Intelligence Reform and Terrorism Prevention Act of 2004 called for DHS to develop plans for accelerating implementation of such a system, but the department has missed several deadlines and stated in mid-2013 that it was intending to incorporate these plans in its budget for fiscal year 2016.) Should DHS get to the point of actually implementing a biometric exit system, it could pave the way for expanding the VWP. In the meantime, a better solution would be to decouple the two initiatives. S.744 does just that by authorizing the Secretary of Homeland Security to designate any country as a member of the VWP so long as it meets certain conditions. Expansion of the VWP is also included in the House immigration reform bill known as the JOLT Act. These are hopeful signs, although the comprehensive immigration reform logjam continues to block further action.
Action in several other areas can also help to improve the visa process. The federal government, for example, can encourage consulates to use their recently expanded authority to waive personal interviews. In response to an executive order issued by President Obama in January 2012, the State Department initiated a two-year visa interview waiver pilot program. Under the program, visa-processing posts in 28 countries were authorized to waive interviews with certain visa applicants, especially repeat visitors in a number of visa classes. Brazil and China, which have large numbers of visa applicants, were among the initial countries involved in this experimental program. U.S. consulates in India joined the program a few months later. The initiative was welcomed in these countries and regarded as successful by the Departments of State and Homeland Security. The program was made permanent in January 2014. Currently, consular officers can waive interviews for applicants for renewal of any nonimmigrant visa as long as they are applying for a visa in the same classification within 12 months of the expiration of the initial visa (48 months in some visa classes).
Although the interview waiver program was not specifically aimed at scientists, and statistics regarding their participation in the program are not available, it seems likely that they were and will continue to be among the beneficiaries now that the program has been made permanent. The initiative employs a risk-based approach, focusing more attention on individuals who are judged to be high-risk travelers and less on low-risk persons. Since it allows for considerable discretion on the part of the consulate, its ultimate value to the scientific and educational communities will depend on how that discretion is used.
The government can also step up its efforts to increase visa-processing capacity. In response to the 2012 executive order, the State Department and DHS launched an initiative to increase visa-processing capacity in high-demand countries and reduce interview wait times. In a report issued in August 2012 on progress during the first 180 days of activity under the initiative, the two agencies projected that by the end of 2012, “State will have created 50 new visa adjudicator positions in China and 60 in Brazil.” Furthermore, the State Department deployed 220 consular officers to Brazil on temporary duty and 48 to China. The consulates also increased working hours, and in Brazil they remained open on occasional Saturdays and holidays. These moves resulted in sharp decreases in processing time.
These initiatives have been bright spots in an otherwise difficult budget environment for the State Department. That budget environment, exacerbated by sequestration, increases the difficulty of making these gains permanent and extending them to consular posts in other countries with high visa demand. This is a relatively easy area to neglect, but one in which modest investments, especially in personnel and training, could significantly improve the face that the United States presents to the world, including the global scientific, engineering, and educational communities.
Looking at U.S. universities and laboratories today, one might well ask whether there really is a problem with the nation’s visa and immigration policies. After all, the diversity of nationalities among scientists, engineers, and students in U.S. scientific institutions is striking. At the National Institutes of Health, over 60% of the approximately 4,000 postdocs are neither U.S. citizens nor permanent residents. They come from China, India, Korea, and Japan, as well as Europe and many other countries around the world. The Massachusetts Institute of Technology had over 3,100 international students in 2013, about 85% of them graduate students, representing some 90 countries. The numbers are similar at Stanford, Berkeley, and other top research universities.
So how serious are the obstacles for international scientists and students who really want to come to the United States? Does the system really need to be streamlined? How urgent are the fixes that I have proposed here?
The answers to these questions lie not in the present and within the United States, but in the future and in the initiatives of the nations with which we compete and cooperate. Whereas the U.S. system creates barriers, other countries, many with R&D expenditures rising much more rapidly than in the United States, are creating incentives to attract talented scientists to their universities and laboratories. China, India, Korea, and other countries with substantial scientific diasporas have developed programs to encourage engagement with their expatriate scientists and potentially draw them back home.
In the long run, the reputations of U.S. institutions alone will not be sufficient to maintain the nation’s current advantage. The decline in enrollments among international students after 9/11 shows how visa delays and immigration restrictions can affect students and researchers. As long as the United States continues to make international travel difficult for promising young scholars such as Alena Shkumatava, it is handicapping the future of U.S. science and the participation of U.S. researchers in international collaborations. Streamlining visa and immigration policies can make a vital contribution to ensuring the continued preeminence of U.S. science and technology in a globalized world. We should not allow that preeminence to be held hostage to the nation’s inability to enact comprehensive immigration reform.
Albert H. Teich ([email protected]) is research professor of science, technology, and international affairs at the Elliott School of International Affairs at George Washington University, Washington, DC. Notes and acknowledgements are available at http://alteich.com/visas/Notes.htm.