How the Candidates Compare On Employment Immigration

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Sep 16, 2016

Employment-based immigration isn’t just a recruitment option for U.S. employers. With the growing skills gap, it’s become a necessity to grow and keep operations afloat. And with diametrically opposed candidates campaigning for the White House, it’s apparent that U.S. immigration could change drastically depending on who takes office in January.

Which nominee has established proposals that are best for the future of U.S. business? Angela Banks, professor of law at William & Mary Law School, with a specialization in immigration policy, offers her take on what the candidates are proposing.

Hillary Clinton

Green Cards for International Students
A common argument for employment-based immigration

Image: Evan El-Amin /
Image: Evan El-Amin /

reform deals with the current treatment of international students. Currently, U.S. colleges and universities sponsor students from around the world using the F-1 Student Visa category. At each education level (undergraduate, graduate and doctorate), they’re eligible for at least 12 months of work authorization. After graduation, international students must seek continued work authorization in the United States through a work visa (the H-1B Person in Specialty Occupation visa is a common choice). If they don’t receive work authorization, they’re forced to leave the United States and return to their home countries.

Clinton proposes to end this problem. She wants to offer immediate green card sponsorship to science, technology, engineering and mathematics (STEM) master’s and Ph.D. recipients who’ve graduated from accredited institutions.

“To the extent that there actually is a shortage of available American workers, then providing green cards to international students who graduate with a Ph.D. or a master’s in the United States is a great idea,” Banks says. “If [the U.S. is] going to be a major player in educating individuals with Ph.D.’s and master’s degrees in the STEM areas, wouldn’t we also want our country to benefit from that skill set?”

The system as is, Banks believes, results in a form of brain drain that could negatively impact U.S. employers.

Startup Visas for Tech Entrepreneurs
Immigrants’ entrepreneurial spirit is no secret. In fact, it’s the subject of a recent study by the National Foundation for American Policy, which revealed 51% of billion-dollar startups had at least one immigrant founder. Wanting to continue the trend, Clinton wishes to create a start-up visa for foreign entrepreneurs who would build globally traded tech companies.

“We already have the EB-5 Investment visa and that was very much premised on this idea that we have a lot of foreign nationals that are interested in investing in the United States. We ought to have a visa that makes it easy for them to be able to come here and make those investments,” says Banks. “That visa hasn’t been utilized as much as people thought it would be, and it’s not clear in my mind whether that’s just because of the terms of the visa.”

Banks posits that the $1 million investment requirement may have been too high for many foreign entrepreneurs. “A lot of entrepreneurial activity that we might want to encourage doesn’t have those kind of resources in order to take advantage of that visa, which is why I think you see things like the Startup Act coming into play,” says Banks. “This idea is that individuals with certain skill sets are given a conditional green card to be in the United States for four to five years, in order to keep that entrepreneurial activity started and see if it gets legs. And if so, then they’ll get a permanent green card.”

Donald Trump


Image: Joseph Sohm /
Image: Joseph Sohm /

Nationwide E-verify


For years, the proposal of enacting a mandatory E-verify employment verification system has been highly debated as some believe companies shouldn’t be required to use the platform to confirm employees’ work authorization. Currently, E-verify is used by 600,000 employers in the United States. The online platform works by matching an employee’s I-9 information to information on file with the U.S. Department of Homeland Security and Social Security Administration.

Trump believes nationwide E-verify would protect jobs for unemployed Americans.

“E-verify does provide, ideally, a good approach to thinking about how to help employers ensure the individuals they’re hiring are lawfully present,” Banks says. “One of the challenges with E-verify is just the accuracy of the system.” The high error rate, she says, will be a serious problem if compliance becomes mandatory nation-wide. “You’re going to have some significant negative implications for particular segments of the immigrant population looking for work. If E-verify is going to be a national requirement, resources really need to be put into insuring that it’s going to be accurate.”

Increased Prevailing Wage

Prevailing wage is the standardized wage assessment used by the Department of Labor to ensure employers don’t attempt to undercut the local labor market by recruiting foreign workers at lower salaries. Trump believes employers should be required to pay foreign workers more than their U.S. counterparts to incentivize them to recruit locally.

But Banks questions whether the problem lies with the enforcement of current government hiring requirements, or the requirements themselves.

“I think some high profile abuse cases suggest that we need to redo the substantive criteria here,” she says. “But it may be that it’s not really a matter of if these employers had to pay more, then they would hire. What we hear often from industry is that no, it’s about the workers being available and having the necessary qualifications. It’s not that we prefer the foreign workers, or that we’re trying to pay them less, it’s just a matter of who’s there, and the law already requires us to pay the prevailing wage, which is supposed to be what American workers would be paid.”

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