U.S. Immigration Law: Do Political Tides Indicate a Talent Migration?

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In recent years, U.S. immigration law has resulted in an increased number of employment-based visas issued. For many HR leaders, this gave the ability to draw from a global talent pool for critical skill gaps. From an HR perspective, employment-based visas for permanent residency can solve severe skill shortages in technology and other STEM fields — without the strict limitations of the H1-B program.

While debates rage on about the extent and size of the U.S. talent gap, many organizations are feeling the pinch. Investopedia estimates that 10,000 baby boomers are retiring each day. And 25 percent of IT leaders believe their organization may have suffered a security incident due to cybersecurity skills shortages, notes the Enterprise Strategy Group. In some states, immigrant workers comprise over one-quarter of the STEM workforce, reports the Society for Human Resource Management.

What kind of changes are ahead? While the full impact of President Donald Trump's immigration policy remains to be seen, HR leaders are certainly wise to educate themselves on the state of U.S. immigration laws and how they could evolve in the next four years.

The State of U.S. Immigration Law

From a policy-based perspective, HR leaders most commonly encounter the EB, or employment-based class of visas. A total of 140,000 are issued each year, according to the American Immigration Council (Council), with 120,000 of these visas divided equally among:

  • EB-1 Priority Workers — individuals with skills in science, education, business, athletics or management
  • EB-2 Professionals with Advanced Degrees — individuals with advanced degrees or "exceptional abilities"
  • EB-3 Skilled Workers, Professionals and Unskilled Workers — individuals with two years experience or training, individuals with a higher degree or unskilled workers

The Council research also notes that visas issued have increased since 2009. A limited number of additional spots are issued for EB-4 and EB-5 candidates, according to the U.S. Citizenship and Immigration Services, which include religious workers, broadcasters, physicians and commercial investors.

During former president Barack Obama's final days in office, changes were made to immigration law for Cuban migrants and the price of the EB-5 visa for wealthy investors was raised. However, Obama's 2015 proposal to not count family members against EB visas issued had the potential for significant, long-term impact on total visas issued annually.

How Immigration Policy Could Change

As The New York Times notes, the Trump administration addressed immigration with an executive order and a pair of Department of Homeland Security memos, however no changes have been made to employment visas. Still, the Trump administration has acknowledged that employment-based policy could be impacted. According to Forbes, a statement by White House press secretary Sean Spicer noted that changes to the EB and H1-B program could play a role in "a larger immigration effort."

Changing the number of visas awarded through the H1-B lottery is up to Congress, Bloomberg notes. But President Trump could change visa allocation by country or employee skills. HR leaders should stay aware of any changes to the law that happen.

Are You Prepared for Possible Talent Migration?

Should HR leaders fear talent migration due to federal policy change in employment-based visa offerings? While the decision is largely in the hands of Congress, preparing for the potential of a drop in visas issued each year is likely wise. HR Morning notes that HR leaders should consider policy impact on their organization, including the importance of executing required I-9 forms for employees.

With any period of political change, there are few certainties. With a tightening talent force and increasing skills gap, HR leaders should consider how changes in immigration policy could affect their current talent and future hires. This may include working to understand who could be affected among existing employees and how immigration policy could impact staffing needs. HR leaders could also choose to develop a plan to be ready to help talent at risk of losing their visas.

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