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June 7 , 2005
Immigration and High Tech Industries – A Summary Overview

By Mark Ople

The immigration of foreign-born workers to the United States has long been a hot topic in this country, as well as in all industrialized countries of the world. An in-depth study of this topic is well beyond the scope of this article, nonetheless, this series of brief articles provides a general context and simplified information intended to assist current discussion of these issues. They can serve as a summary of certain salient aspects of modern U.S. immigration and, specifically, their relation to the high tech industries.

On February 17, 2005, the “2005 Economic Report of the President” was submitted to Congress, which highlighted the importance of immigration to the U.S. economy in general. The massive amount of data compiled in the report and the broad spectrum of resources used in this research, highlights the fact that immigration has become an essential element of growth in the U.S. labor force. Contrary to the conventional wisdom, the report states that immigrants provide a net fiscal benefit to the U.S. economy (Economic Report of the President, Washington, DC: U.S. Government Printing Office, February 2005, p. 93.). The report also states that current immigration policies have actually established limits that fall far below actual labor demand. The President has recommended comprehensive immigration reform in order to address the presently outdated U.S. immigration system and provides specific recommendations designed to better reflect the reality of the U.S. economy and labor market.

Unfortunately, one can find innumerable studies and reports “demonstrating” contradictory and conflicting conclusions regarding the effect of immigration on this country’s technology business sectors. It is easy to be confused, and misinformed, regarding the actual state of affairs in this area. Nonetheless, it is obvious that the high technology sector is an extremely competitive arena, and U.S. companies will continue to require the best workers (from whatever source) in order to maintain their strong position in the face of rapidly expanding high technology competitors around the globe (e.g. China, Japan, Korea). This country’s long-running economic growth trend can largely be credited to the extremely rapid growth of our high-tech industry. Foreign workers have always been an important component of this growth.

In recent years, business and technology leaders have taken the initiative to lobby for re-evaluating and amending current immigration policy and procedure to properly reflect the multi-faceted needs of their industries. At a Congressional panel discussion on April 27, Bill Gates was clear in stating his opinion that the current immigration system “does not make sense” with regard to the requirements of the high-tech industries and in light of the need for the U.S. to remain competitive and economically robust. Intelligent immigration reform is capable of addressing and satisfying the valid concerns of all parties regardless of their position in the immigration debate. Although the debate has generally focused on “low-skilled” workers, in reality, foreign-born college and university graduates are confronted with the most tightly regulated procedures for entry to the U.S. One reason for the slow convoluted process of hiring temporary foreign professional workers is the existence of the worker protections that are necessary and required to protect employment of U.S. workers.

Because of the complexity of the process, it would do well for all those interested in immigration and the high tech industries to be aware of the policies and procedures currently governing the legal immigration of foreign-born workers. Employers, in particular, must be aware of the basic processes and options regarding employment of foreign born workers. The process begins when a company in need of particular skills has identified a foreign worker and is ready to offer him or her a job in the U.S. A foreign born employee obtains authorization to live and work in the U.S. by obtaining an Employment-Based Nonimmigrant Visa. Once the employer has identified the potential hire, the employer must sponsor the individual’s application for a Nonimmigrant Visa.

There exists a wide variety of employment-based visa options for high-tech employers and employees. Once the employer and, in most cases, their legal counsel, have determined the most appropriate visa for the potential employee, the employer files an application with U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Upon approval of the application by USCIS, the employee can apply for the visa at his or her U.S. consulate in their home country. With the visa in hand, the individual is allowed to enter the U.S. to begin employment with the sponsoring company. This is, of course, an extremely simplified description of a detailed, and often complicated, process. In the next article, we will look more closely at the best options for businesses in need of foreign born workers and the basic steps involved in the application process.

In light of findings such as those in the 2005 Economic Report of the President and legitimate concerns that seem to diverge from such findings, we are still a long way from implementing intelligent immigration reform to fix what some call a “broken” system. Still, the fact is that regardless of which side one falls in this contentious debate, in order to remain economically competitive and vital, it is a business necessity for U.S. employers to stay abreast of ongoing developments in the area of U.S. employment-based immigration.



About The Author

Mark Ople has practiced employment and immigration law for the last ten years. He received his Bachelor’s Degree from Yale University, his Juris Doctor Degree from University of California, Berkeley – Boalt Hall, and is a member of the American Immigration Lawyers Association. The Law Office of Mark C. Ople, Esq. is located in San Diego, California, and Mr. Ople can be reached by phone at (858) 263-3360 or email at mark@theoplegroup.com.
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Law Office of Mark C. Ople, Esq.
9920 Pacific Heights Blvd.
Suite #150
San Diego, CA 92121

Telephone: (858) 263-3360
Facsimile: (858) 535-4876
mark@theoplegroup.com

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