An
Arendtian Critique of U.S. STEM Immigration Policy
By Zachary C.
Myers
“If you catch me at the border, I
got visas in my name.
If you come around here, I make 'em
all day!
Get one done in a second if you
wait.”
--M.I.A.
“The
fundamental deprivation of human rights is manifested first and above all in
the deprivation of a place in the world which makes opinions significant and
actions effective.”
--Hannah Arendt
I.
INTRODUCTION
American businesses want to hire
more foreign-born workers trained in Science, Technology, Engineering, and
Mathematics (“STEM”).
Microsoft CEO, Bill Gates, has personally entreated Congress to increase the
number of employment based visas available for such workers.
A representative from Facebook reported that it nearly outsourced a project
when it thought it would be unable to obtain a visa for a critical member of
its team.
Approximately forty-percent of the
nation’s STEM graduate students are foreign nationals.
In some fields the proportion is even higher.
For example, in electrical engineering, 70.3% of all graduate students are
foreign nationals. If
these foreign nationals are unable to immigrate to the United States, the
country may suffer a “brain drain” as large numbers of U.S.-educated STEM
graduates are forced to leave the country.
The U.S. legislature has responded
to the desire of businesses to hire foreign-born STEM workers, and to the risk
of brain-drain from U.S. universities, by proposing several bills to increase
the number of foreign-born STEM professionals that are permitted to live in the
United States.
STEM workers that seek to immigrate
to the United States are generally highly educated individuals.
Many of them have been educated in the United States, and consider this their
home.
Because these highly educated individuals are accustomed to the “human
artifice” that is unique to the United States, they suffer a great deal when
they are denied participation in public life.
However, STEM graduates are often discussed in a way that focuses on their
usefulness as workers in U.S. society.
This narrow focus on “work” ignores the other components of the human condition
of immigrants. Specifically,
this paper will argue, that by emphasizing immigrants work, U.S. immigration
policy fails to maximize STEM immigrants participation in public affairs.
Susan F. Martin, believes it is a
priority to maximize immigrant participation in the public affairs of their
adopted communities.
Martin is the Director for the Study of International Migration in the School
of Foreign Service at Georgetown University, and the former Executive Director
of the U.S. Commission on Immigration Reform, where she advised Congress and
the President on immigration policy.
For Martin, the key policy question facing the nation is not whether to open-up
immigration, but how to integrate immigrants into a national community.
Martin uses a three-part descriptive
system to explain her ideas. She uses the early immigration policies of
colonial Pennsylvania,
Massachusetts, and Virginia as archetypes of immigration policy. The Pennsylvania system
was the most inclusive immigration system, and provided relatively diverse
immigrants with roughly equal rights. Massachusetts, on the other hand, had a
more exclusive immigration policy, which excluded people based on ideology, and
permanently excluded outsiders from participation in political affairs.
Virginia, was more like Pennsylvania than Massachusetts, in that it encouraged
immigration; however, unlike Pennsylvania, it did so in order to exploit
immigrants as cheap labor.
Like
Martin, the renowned philosopher, Hannah Arendt has developed a three-part
system to describe why it is important for people to participate in public
institutions.
This is an interesting coincidence that yields fruitful comparisons.
Arendt
three-part descriptive-system involves the following categories of human
activity: “labor,” “work,” and “action.” The first category, labor,
is any activity which sustains biological life. The second category, work,
is any activity in which humans create durable objects that are not intended
primarily for consumption. The third category, action,
is any public act that discloses an individual personality and has the
potential to give birth to something entirely new. These three conditions
are all necessary conditions for human
life (as opposed to animal or supernatural life). Of the three categories,
action is the most important, because it is the activity that gives meaning to
individual human lives.
Arendt’s
conditions of human life—labor, work, and action—correspond somewhat with Susan
Martin’s three type immigration systems—Virginia, Massachusetts, and
Pennsylvania—because Virginia’s system exploited immigrants for their labor
(especially in the form of slavery); whereas, Pennsylvania expanded immigrants
opportunities for action, by giving them access to the public life of the
community.
Therefore, the immigration system of Pennsylvania best realizes Hannah Arendt’s
ideal of maximizing participation in action. For Arendt, individuals
must have opportunities to reveal their character in public spaces, or else
they will not live full and complete lives. Therefore, an opportunity
to participate in politics is extremely important.
In
order to increase access to civic institutions, legislative proposals should be
viewed through the lens of the Pennsylvania, Massachusetts, and Virginia models
of immigration.
The best proposals for increasing the availability of foreign born STEM workers
move our immigration system closer to the more inclusive Pennsylvania model,
because this model maximizes participation in public life. U.S. lawmakers should use
the Pennsylvania model as a guide to prevent STEM workers from being exploited
for their work, and to allow them to lead meaningful lives.
II.
ARENDT’S THREE
CATEGORIES OF THE HUMAN CONDITION
According to Hannah Arendt
the human condition is made-up of three activities: labor, work, and action. All three activities,
labor, work, and action, are necessary components of “human” life. It is unclear whether
Arendt believes that a person would be able to live a life that is completely
lacking labor, or work, or action. However, if it is
possible, then such a life would be something other than “human.”
a.
The Human Condition of Labor
The
human condition of labor relates to the biological process of human life. Examples of labor include
toiling to produce food, eating, and sleeping. Despite the negative connotation
associated with “labor,” for Arendt, labor can actually be quite pleasurable,
and is necessary for happiness. One who toils to produce
food and is able to savor the fruit of her labors, will feel satisfied and
physically nourished. The pleasures and pain
involved in labor are sensations that humans share with animals: the pleasure
of reproductive sex, along with the pain of childbirth; the pain of toiling for
food, along with the pleasure of a hearty meal. Arendt describes people
caught-up in labor as “animal laborans.” Because labor relates to
the biological process, and is shared with all animals, it unites people with
nature and with nature’s earth.
Labor
is an essential component of a happy human life. “There is no lasting happiness
outside the prescribed cycle of painful exhaustion and pleasurable
regeneration.”
The deprivation of labor comes in two forms: (1) people can be deprived of
physical needs, and waste in misery and hunger or, (2) they can have their
needs satisfied so readily that there is no need for exertion. “Great riches and an
entirely effortless life where boredom takes the place of exhaustion and where
the mills of necessity, of consumption and digestion, grind an impotent human
body mercilessly and barrenly to death—ruins the elemental happiness that comes
from being alive.” A life without labor,
whether because of deprivation or because of overindulgence, is a miserable
existence.
While
labor is an essential component of a fulfilling existence, on its own, labor
will not produce a meaningful human life. Labor is ruled by necessity. Humans must eat to
survive. Seeds must be planted in the spring, watered during the summer, and
harvested in the fall. Therefore, while labor can be pleasurable, it is never
freedom. One does not choose to eat. One must eat. Because labor is always
governed by necessity, it is never a free act. A person who merely
labors, like an animal, does not have a bios,
or life story.
They are merely producing and consuming, feeding the incessant cycle of
biological life.
Therefore, those whose lives are spent exclusively in labor are mere biological
animals, at one with nature, but not participating in a human life. In order to have a human
life, a person must be removed from nature and participate in the world, which
is the space of human affairs.
b.
The Human Condition of Work
The
activity that removes humans from nature and places them in the world is work.
The
human condition of work relates to the creation of durable goods that form a
world in which people interact. Examples of work include
fabricating tools, reproducing books, and building dwellings and monuments. By
engaging in work, human beings create durable objects, which relate human
beings to one another. Additionally, durable
objects permit human words and deeds to live on long after the author is dead.
By
creating durable objects that will outlive their creators, work removes humans
from nature and allows them to participate in immortality. Without work, human
beings would be no different than animal life, living and dying following the
cyclical repetition of nature. By creating a world
(separate from nature’s earth) work elevates and separates the animal laborans from nature and makes
them human.
This world both connects and separates individuals—allowing them to relate to
each other through it, and also distinguish themselves as individuals by
retrieving their identity in relation to
specific durable objects:
“[T]he things of the world have the
function of stabilizing human life, and their objectivity lies in the fact
that—in contradiction to the Heraclitean saying that the same man can never
enter the same stream—men their ever-changing nature notwithstanding, can
retrieve their sameness, that is their identity, by being related to the same
chair and the same table.”
Nature
is constantly in flux. Without a durable world,
humans would be caught in that flux and unable to distinguish themselves as
individuals.
Arendt does not outright criticize nomadic life, but clearly finds a durable,
demarcated world, stabilized by “property,” to be an ideal. (Property here is similar
to Radin’s concept property, where personhood is established through a relation
to places and objects. Consumptive goods do not
qualify as property, because consumption is actually destructive of the
relationship between personhood and stable objects.)
Work’s
guiding principle is usefulness. Work relates to
Aristotle’s techne, or technology. For Arendt, like
Aristotle, durable objects each have a telos,
or end purpose.
The purpose of each object is its use by people. The products of work have
an “objectivity” based on this telos. Every product of work
exists in the mind’s eye of the fabricator, or homo faber, based on its useful purpose. If an object is not
useful, then the worker has failed. For instance, an object
that is not useful for sitting cannot be called a chair. Therefore, work creates
the object-ivity of the world—the use
of objects permit humans to interact and relate to each other.
Work
produces objective forms in the mind’s eye of people as homo faber, but work does not give birth to anything new. It is strictly regulated
by utility.
(If an object is not useful, than the worker has failed.) Because work is regulated
by utility, the activity of the work is not free.
Additionally,
because work is techne, a life of
work is highly susceptible to critique based on the problems inherent in
technology.
Technology destroys the meaningfulness of natural objects. Work removes material
from nature, and robs them of their meaning as natural objects. Everything is mere
material for fabrication, or “standing-reserve,” in the hand of people as homo faber.
Like
labor, work is necessary component of a human life. However, a life filled with work alone is not
meaningful, because work done solely for the sake of utility collapses into a
self-referential void. Arendt states that “[t]he
perplexity of utilitarianism is that it gets caught in the unending chain of
means and ends without ever arriving at some principle which could justify the
category of means and end, that is, of utility itself.” Work does not supply a
reason for working. Unlike labor, which is
done out of necessity, work is done merely because it is useful, but there is
no use for usefulness. Something else must
supply a purpose for which a thing is useful. There must be something
“for the sake of” which work is done, which must come from something other than
work. A life that is spent
being useful in order to be useful is not meaningful.
Because
work cannot supply meaning to human life, and actually tends to destroy the
meaningfulness of the natural world, the activity of homo faber is not sufficient on its own to constitute a meaningful
human life.
c.
The Human Condition of Action
Action
gives meaning to human life. Actions are words and deeds that are done in
public that reveal a person’s character. Because action is done
publicly, and other people are able to respond to one’s action, it always has
the potential to give birth to something entirely new. One of the clearest
examples of action in Arendt’s work is making and keeping promises in order to
constitute public bodies. The revelatory and
spontaneous character of action makes it the most meaningful component of human
life.
Action
does not include all words and deeds, but are instead the words and deeds that
constitute a person’s life story, which will live-on after they have died. They constitute a
person’s bios, or social and
biographical life, and are opposed to zoē,
or mere biological life. Actions are “at home in
everlastingness,” because they are worthy of being remembered. Through action, individual
human lives become permanently fixed in eternity. Unlike the circular
progression of the stars, the changing of the seasons, and the continuous death
and rebirth of animals in nature, which all follow a cyclical pattern, an
individual human life is linear. It has a beginning and an
end. It is a singularity, which cuts across nature’s cycles. It is only because humans
participate in action that their lives have this quality. A person who did
nothing but toil for food and shelter, sleep, and fuck, without engaging in
thought, word, or deed, would not be properly human at all, but would be a mere
animal laborans, completely caught in
nature’s cycle.
Similarly, a solitary worker who had no words or deeds would not be a human,
but a god, building a world in which other humans can act, but without herself
acting in that world. Only by virtue of one’s
“active life” is a linear bios
created in the world, which can cut across the circular progression of nature.
Action
is not reactive and is different than mere “behavior.” An example of action is
forgiveness:
“In contrast to revenge, which is the
natural, automatic re-action to transgression, and which because of the irreversibility of the action
process can be expected and even calculated, the act of forgiving can never be
predicted; it is the only reaction that acts in an unexpected way and thus
retains, though being a reaction, something of the original character of
action.”
Forgiveness
breaks the chain reaction of revenge, an eye for an eye, and has the potential
to give birth to something new. Therefore, forgiveness
is a uniquely human act that reveals an individual character. This example helps
illustrates the narrowness of Arendt’s concept of action. Most human activity is
merely “behavior,” which is predictable and reactive and does not reveal
individuality, personal character, or distinction. Action, on the other
hand, is a narrow category of revelatory acts worthy of being recorded, because
they reveal a human will.
Action
is strictly separated from labor and work. Unlike labor, and work,
action is not motivated by necessity
or usefulness. Nothing necessary or
useful has the requisite spontaneity and mark of individuality to be called
action, because actions are unique to humans as individuals, and express an
individual character.
Even
though action is never labor or work, it is dependent on both labor and work.
Before an individual can act without regard to necessity, biological necessity
must be satisfied. Therefore, labor, which
satisfies biological necessity, is a precondition to action. Likewise, action
requires a shared world, within which people can interact and publicly reveal
their character. By constituting a world
of durable goods, work creates the stage, and the conditions, for action.
Because
labor and work are necessary conditions for action, the three categories
roughly corresponds with the higher categories of need in Maslow’s hierarchy of
needs.
Like love, esteem, and self-actualization (Maslow); actions (Arendt) are not
possible if a person is constantly preoccupied with “physiological needs”
(Maslow) or labor (Arendt). Like love, esteem, and
self-actualization, which are extremely threatened by loss of freedom, action
also requires the negative freedoms, such as freedom of movement, and speech. Additionally, action is
only possible where there is a community of equals. (A competitive community
of equals).
Therefore, action is not possible under conditions of violence or bondage.
However,
action is not synonymous with the higher categories of need. Love, esteem, and
self-actualization can be developed privately by oneself, or among intimate
friends or lovers. These needs are
generally not a matter of public concern. Action, on the other
hand, is always public. Additionally, Maslow’s “needs”
cannot be harmonized with Arendt’s concept of action, because action is never
taken in response to a necessity (“need”), but is a pure expression of an
individual character, or will.
In
order to become free from necessity, a precondition for action, the ancients
used violence. Violence was used to
force one person to care for another person’s biological needs, i.e. to force
one’s “labor” onto another. Arendt describes this
“violence” as “the prepolitical act of liberating oneself from the necessity of
life for the freedom of the world.” Arendt does not consider
violence a political action. However, while violence
is not action, it was a necessary condition for action for ancient humans. By subjugating and
ruling over other people, ancient Greeks were able to overcome necessity and
usefulness and engage in action. Arendt goes so far as to
say that “because all human beings are subject to necessity, they are entitled
to violence towards others.” This is a perplexing
statement. No person is “entitled” to the labor of another through violence. Furthermore, Arendt
approves of the peoples’ councils formed by laborers and workers, such as early
soviets in Russia, popular societies in
France,
townhalls in North America, and workers’ councils in
Hungary.
She recognizes these as authentic sites of action. People who are members
of a laboring class often have ample leisure to speak, reason together, and
make promises, i.e. act, when they have
completed their day’s labor. Therefore, it is unclear
why only a ruling class that has subjugated a laboring class can be freed from
necessity sufficient to engage in action.
However,
if a laboring class’s labor is too burdensome, individuals will not have time
to organize and act among each other. Furthermore, the
soviets, popular societies, townhalls, and workers’ councils were short-lived
and appeared during revolutionary periods when everyday life was interrupted. When the initial
revolution ended, the laboring class went home. Therefore, Arendt took
seriously the idea that only an elite class will be able to engage in action. However, others have
argued that some of the most genuine sites of action today exist in conditions
of poverty, and can continue to exist so long as they are not subjugated by
force.
Arendt may have mistaken a historical reality—that free people have often
enjoyed extra leisure at the expense of a laboring class—for a historical
necessity—that freedom is only possible after one group has subjugated another
in order to provide ample leisure. Action is possible
wherever people gather together as equals without being dominated by necessity
or usefulness.
Regardless
of whether Arendt believes subjugation of a laboring class is a necessary
condition to elevate a ruling class to a site of action, it is clear that
“slavish” meaning a life ruled by labor and necessity is undesirable. “The slave’s degradation
was a blow of fate and a fate worse than death, because it carried with it a
metamorphosis of man into something akin to a tame animal.” A life ruled by labor
was not “worse than death” because it was difficult, but because it was not
free.
This is not solely, or even primarily, a negative freedom in terms of free
movement and commerce, but a positive freedom to reveal one’s character through
word and deed.
“A poor free man preferred the insecurity of a daily-changing labor market to
regular assured work, which, because it restricted his freedom to do as he
pleased every day, was already felt to be servitude (douleia), and even harsh, painful labor was preferred to the easy
life of many household slaves.” Not only was grueling
labor preferred to servitude, day wages, which were a less stable source of
revenue, were preferred to continuous employment. The ancients Greeks
understood that an agent of another person is not able to reveal her personal
character.
The ancient attitude toward freedom was such that a free workman was also
willing to do much more arduous work, and avoid stable employment, in order to
maintain the dignity of free action.
Not everything that is said or done in public
deserves to be called ‘action.’ A true act must be some
form of word or deed that reveals a person’s character, is not done out of
necessity or usefulness, has the potential to give birth to something entirely
new, and is at home in everlastingness. Despite being a narrow category of activity,
action gives meaning to human life.
“The
unexamined life is not worth living for a human being.” A meaningful human life
requires action. However, action requires a “stage” upon which individuals can
publicly reveal their character. Arendt calls these
stages “spaces of freedom” and compares them to “islands in a sea or as oases
in a desert.”
The challenge for policy-makers is to maximize these “spaces of freedom,” and
enlarge participation in public life.
III.
MARTIN’S MODELS OF IMMIGRATION
Martin has developed a descriptive
theory of immigration policy based on the colonial immigration policies of Virginia,
Massachusetts, and Pennsylvania.
None of Fuchs’s & Martin’s models are ‘anti’-immigration; Martin avoids the
‘anti’/‘pro’-immigration binary. Instead, her theory addresses not whether STEM workers should be admitted
to the United States, but instead how
they should be admitted?
a.
Virginia
The Virginia model represents the
wrong way to admit immigrants to the United States. Virginia’s immigration
policy was solely concerned with obtaining cheap, reliable laborers.
Immigration policies in Virginia encouraged the importation of labor using the
most inexpensive means possible, and then permitted exploitation of laborers.
Virginia permitted the exploitation of cheap labor using three programs: (1) indentured servitude, (2) the importation
of convicts and debtors to the colony, and, (3) through slavery.
Slavery, in particular, epitomized the Virginia models focus on cheap labor
without regard for immigrant welfare.
Yet, treatment of indentured servants and convicts was also extremely harsh.
Many died as a result of this treatment.
Virginia was not interested in creating a tolerant, pluralistic society;
instead, they were focused on creating a pliant, reliable, non-citizen workforce
for the plantations.
The
Virginia Model of immigration is related to the human condition of labor. Like
the system employed by ancient Greeks, the entrepreneurs of the Virginia colony
relied on an underclass to provide labor, so that they were freed to pursue
other pursuits.
For instance, Thomas Jefferson is one of Arendt’s classic examples of a man of
action;
He was also a man of slaves.
While slavery elevated several men to a position where they were empowered to
live active lives, full of great words and deeds, their slaves were subject to
a “fate worse than death.”
“[T]he institution of slavery carries an obscurity even blacker than the
obscurity of poverty; the slave, not the poor man, was ‘wholly overlooked.’”
Slaves lived their lives in ignominy, and died without having had an
opportunity to participate in public civic institutions.
b.
Massachusetts
While Pennsylvania’s immigration
model fostered ideological pluralism, the Massachusetts’s model maintained an
ideologically ‘pure’ population.
“Membership in the Massachusetts Bay Company was based on religious
qualifications.”
Massachusetts, led by John Winthrop, recruited like-minded individuals in an
effort to create “a city upon a hill,” a society of true, Puritan believers.
Massachusetts even resorted to exclusionary policies to cultivate this ideal,
by expelling people with whom they did not agree.
Dissenters, like Roger Williams and Anne Hutchinson, were expelled from the
community and deported.
Unlike immigrants to Pennsylvania,
immigrants to Massachusetts were only extended membership if they met certain
rigid ideological categories.
There were four categories of colonists in Massachusetts:
“First
were the freemen, who alone could vote for governor, magistrates, and colony as
a whole. Second were church members who did not become freeman. … Third were
those who were neither church members nor freemen but took an oath of fidelity
to the colony and shared its aims... Fourth were those who did not take an oath
of fidelity; they were … ‘in the colony but not of it.’”
Ideological exclusion and
deportation characterized the immigration model of Massachusetts.
Massachusetts
is related to the human condition of work. Unlike, Virginia, which very
explicitly created a laboring class which lived in ignominy, Massachusetts
permitted citizens to participate in the colony as workers.
Skilled craftsmen were free to build durable goods and contributed to separate
the Puritan colony from nature, but they were not permitted to participate in
the governance of the colony.
Because
immigrants to Massachusetts enjoyed a great deal more negative freedom, such as
freedom of movement, and freedom to participate in the economics of the colony,
the immigrants to Massachusetts were much better off compared to immigrants in
Virginia.
Yet, Massachusetts immigrants were still excluded from the public square. Only
the men with puritan credentials were permitted to join the council of
“freemen” who met together in a community of equals to speak in public, make
promises (and compacts) together, and take part in what Arendt called the “good
life.” Because
non-puritan immigrants were free to participate in the community as skilled
workers, but were not given full rights as citizens, immigrants were
essentially consigned to the position of homo
faber (mere workers).
c.
Pennsylvania
The Pennsylvania model did not share
the Massachusetts’s models focus on religious purity.
Instead, the immigration policy of colonial Pennsylvania was integrative, and
generally did not discriminate based on ideology.
William Penn used immigration policy in Pennsylvania to test his ideas about
religious tolerance.
He recruited immigrants from all across Europe to populate Pennsylvania.
By actively recruiting and accepting immigrants from all of Europe, Penn
created a pluralistic society.
In order to incentivize immigration, and integrate immigrants into the colony,
Pennsylvania offered immigrants roughly equal treatment and rights, including the
right to citizenship.
Penn’s model was both open to a diverse group of immigrants, and focused on
making them long-term permanent residents through integration, and
naturalization.
The Pennsylvania model is related to
the human condition of action. Under the Pennsylvania model, immigrants are
accepted as individuals and are given an opportunity to participate in public
affairs. By facilitating
participation in publicly visible spaces, the Pennsylvania model maximizes
human potential for action. Because this model
increases access to “spaces of freedom,” it makes it more likely that
individuals will be able to live full and complete lives.
Arendt
actually strongly doubts that the political institutions that currently exist
in the United States are up to the task of providing “spaces of freedom” for
anyone other than a super-elite group—primarily senators and congresspeople. However, opening up
access to whatever limited “oases” of freedom that exist in the United States
should be an important policy goal for the sake of maximizing human dignity.
Pennsylvania,
Massachusetts, and Virginia are useful archetypes for comparing different
immigration policy moves. Pennsylvania
arises as the preferred immigration model,
because it does not rely on ideological restrictions or exploitative labor
practices, and it fosters an open pluralistic society of worker-citizens and
maximizes freedom through participation in government.
IV.
SURVEY OF EXISTING LAW
U.S. employers have two options for
sponsoring the entrance to the United States of foreign-born STEM workers: they
can sponsor them as “immigrants” or as “non-immigrants.” “Non-immigrants,” are
defined by a laundry list of categories of people seeking entrance to the United
States on a temporary basis.
Working backwards from this definition, “an immigrant” is anyone seeking
entrance to the United States with the intention to remain indefinitely, i.e.
to establish permanent residence.
In a case involving an employer sponsoring an alien for admission to the United
States for the purpose of employment, applicants can usually apply for entrance
as both an immigrant and a non-immigrant.
a.
Entrance as an Immigrant
Once admitted and inspected an
immigrant is a lawful permanent resident (“LPR”) and is permitted to live and
work in the United States indefinitely, provided that they do not commit certain
crimes.
Additionally, an LPR can petition for admittance of family members as
immigrants.
They can also leave the U.S. for extended period of time (up to a year), and
return, without having to apply for readmission.
Finally, after five years residence, an LPR can apply for naturalization to
obtain full citizenship.
Because entering the United States as an immigrant affords general work
authorization, indefinite residence status, the ability to petition for the
entrance of family members, travel rights, and a clear path to citizenship, STEM
workers may prefer to enter the United States as immigrants.
Entering the United States as an
immigrant affords fairly robust rights to STEM workers, but this route is not
always immediately available to those seeking to work in this country. Annual
caps limit the number of employment-based immigrants (and family members) that
are permitted to move to the United States.
Only 65,918 employer-sponsored immigrants (along with their spouses and
children) were admitted in 2013.
These limited immigration opportunities are allocated according to a priority
system.
Most STEM workers fall under the second or third priority categories (EB-2 and
EB-3) for “aliens who are members of the professions holding advanced degrees
or aliens of exceptional ability” and “skilled workers, professionals, and
other workers.”
EB-2 and EB-3 applicants are each guaranteed approximately 40,000 spots per
year (in addition to any spots that are not used by higher priority categories)—80,000
spots out of 140,000.
Limits based on country of origin also
restrict access to immigrant status. No group of immigrants from any one
country can receive more than seven percent of the employment-based immigration
spots in a given year.
Because visa demand from a few countries greatly exceeds seven percent per
year, the national origin restriction has created a bottleneck in the employment-based
immigration system. The affected countries are China, India, Mexico, and the
Philippines.
A STEM worker from China currently faces a backlog of applications going back
six years before they can get permanent resident status.
Applicants from India face even longer backlogs—applicants that became eligible
for immigrant status in March 2013 waited over eleven years for that chance.
U.S. employers are highly unlikely to wait eleven years in order to hire an
employee through the immigrant process.
As a result, eligibility backlogs, and processing times,
make it “virtually impossible to hire an individual” through this system. As a
result, most STEM workers enter the United
States as non-immigrants.
b.
Entrance as a “Non-immigrant”
Employers are much more likely to
hire STEM workers as temporary, non-immigrant, workers,
but non-immigrants do not have the robust rights afforded immigrants.
Non-immigrant admission statuses are limited to specific times and purposes.
There are many non-immigrant statuses,
but the two that are most relevant to STEM workers may enter the United States
for a temporary period to study at a U.S. University or to work in a “specialty
occupation” at a U.S. company.
Failure to maintain a full course load or failure to remain employed to a
sponsoring employer may violate the terms of a non-immigrant’s admission to the
United States, making her removable.
Because non-immigrant admission only
authorizes temporary residence, many non-immigrant STEM workers attempt to
become lawful permanent residents by way of a process called “adjustment of
status.”
However, backlogs in the employment-based (“EB”) system prevent many
non-immigrants from adjusting status for many years.
Largely because the EB system fails
to accommodate many people seeking adjustment of status, measures are in place
to extend non-immigrant students and temporary workers stays in the United
States. Changes have been made to make it easier for non-immigrants to change
U.S. employers, by allowing them to ‘port’ their H-1B status from one sponsor
to the next without waiting for authorization from INS.
However, h-1b non-immigrants seeking to change employers still face a
significant risk that they will lose lawful status by quitting their job.
Non-immigrants admitted to the United States for the purpose of studying at a
U.S. University may choose to extend their stay by one year through program
called optional practical training (“OPT”). Most students are eligible for a
12-month extension under OPT.
STEM students are permitted an even longer extension—17 months.
These stop-gap measures have undoubtedly enabled many STEM immigrants to adjust
status who would not have been able to do so otherwise,
but large backlogs of people seeking adjustment of status continue to be a
problem.
H-1b has become the vehicle of
choice for employers seeking to hire foreign-born STEM workers.
However, demand currently outstrips the number of h-1b non-immigrants admitted
each year. Demand
exceeds the number of applicants admitted, because H-1b admissions have been
capped at 65,000 per year.
In 2000, in an effort to “clear out the backlog of pending” h-1b applications,
Congress increased the cap to 195,000 people per year for three years.
However, after three years, the cap reverted to 65,000 admissions.
This year the INS stopped giving out visas in June, three months after the
start of the season.
V.
CRITIQUE OF THE STATUS QUO
In order to admit STEM workers to
the United States the temporary employment system should be disfavored in favor
of the much less used, EB system of immigration, because immigrants under the
temporary employment system have limited rights that do not permit them to
assimilate into public life and engage in action.
Immigrant STEM workers may be in
high demand because they are easier to exploit.
As explained previously temporary workers have limited rights in the United
States. They do not have complete freedom of movement; instead, they are tied
to a single U.S. employer, and must obtain special permission in order to
change jobs.
Because temporary workers immigration rights are tied to continued employment,
they have a strong incentive to maintain their job, because losing a job could
mean being forced to leave the country.
As a result, foreign-born temporary workers are credited with being more
“loyal” to their employers compared to native workers.
The threat of losing immigration status motivates temporary workers to stay at
job longer, regardless of working conditions or relative pay.
Some commentators have described
temporary work immigration statuses, such as the h-1b, as a form of indentured
servitude. “Be
wary of H1-B visas in the USA—you basically get shackled to a company . . . being
a non-American in the USA is almost like being a second-class citizen,” stated
an Australian worker who worked in the United States under the H1-B status.
Immigrant STEM workers are not integrated as equals into public life, but are
instead relegated to a secondary status, similar to the immigrants in colonial
Massachusetts.
Temporary work status immigrants do
not occupy “spaces of freedom.” They do not enjoy basic rights to movement.
They are not secure in their position in the United States, and could be forced
to leave simply because they leave their employer or are fired.
As a result, they are not able to engage in action.
“[T]he
faculty of action … can be actualized only in one of the many manifold forms of
human community.” The law separates the members of a community from nature.
Temporary workers are neither inside, nor outside this community, because they
are not permanent members of the community in which they reside. A temporary
worker is a “a
human being or homo in the original
sense of the word, indicating someone outside the range of the law and the body
politic of the citizens, as for instance a slave—but certainly a politically
irrelevant being.” They are thus stripped of legal personality and exist as
mere bare life.
Their biological life, work, and labor, are of political significance, but
their human life, and action, are irrelevant:
“[T]heir
freedom of movement, if they have it at all, gives them no right to residence[,]
which even the jailed criminal enjoys as a matter of course; and their freedom
of opinion is a fool’s freedom, for nothing they think matters anyhow… The
fundamental deprivation of human rights is manifested first and above all in
the deprivation of a place in the world which makes opinions significant and
actions effective… They are deprived not of the right to freedom but of a right
to action; not of the right to think whatever they please, but of the right to
opinion.”
Because
temporary workers are not fully part of their communities, their actions are
rendered irrelevant.
Immigrants in this status cannot participate in an open
market for their services (because they are tied to one employer);
they cannot engage in civil disobedience because they can be deported for
illegal activity;
they can organize, but these organizations are politically irrelevant. Therefore, they cannot exercise
power, or freely act. As a result, individuals and the country are deprived of
potentialities that might otherwise be opened by these highly educated (and
often highly Americanized) individuals.
Additionally, there is no reason to record or remember the actions of temporary
workers, because they are largely irrelevant to the community.
Because their lives are less likely to be remembered, the lives of temporary
STEM workers have less meaning than would otherwise be possible if they were
full members of the United States.
Because the words and deeds of temporary workers are largely
irrelevant, even if the working conditions and treatment of temporary workers
happened to be better than the working conditions of U.S. citizens, temporary
work status would still be a “fate worse than death,” because, temporary
workers would still lead ignominious lives outside the public realm of the
United States.
They do not have access to spaces of freedom where they could disclose
themselves and have a bios.
There are competing explanations for
the high demand for foreign born STEM workers in the United States. Foreign
born STEM workers may be in high demand because they are easier to exploit.
However, foreign-born STEM workers may fill critical niche positions at
high-tech companies that cannot be supplied by the domestic labor market.
Some STEM workers come to the United States with no intent to permanently
immigrate, and are simply filling a temporary technological niche that is
desperately needed by a corporation.
Such workers may actually have greater mobility than the average American, and
the appropriate context for them to exercise freedom of action will be among
their peers in their country of origin.
Therefore, there likely is an appropriate use for the H1-B, and other temporary
worker, non-immigrant statuses.
However, because of the potential damaging effects of temporary work status on
the lives of immigrants seeking long-term residence in the United States, the
temporary work program should be disfavored.
a.
PROPOSALS FOR
CHANGE
In
order to address the apparent demand for foreign-born STEM workers, several bills
have been advanced in Congress, which increase the number of STEM workers that
are permitted to reside and work in the United States. Two of the most recent
proposals are the Border Security, Economic Opportunity, and Immigration
Modernization Act (“Immigration Modernization Act”) and the Immigration
Innovation Act of 2013 (“Immigration Innovation Act). Both acts would expand the
amount of STEM workers that would be permitted to permanently immigrate to the
United States.
i. Border Security, Economic Opportunity, and Immigration
Modernization Act (“Immigration Modernization Act”).
The
Immigration Modernization Act is intended to be a “comprehensive” immigration
reform.
The text of the most current version of the bill is almost twelve-hundred pages
long.
It includes provisions that would utilize National Guard units to assist border
patrol, create a non-immigrant category for low-skilled temporary workers and a
point-based system to allocate permanent resident status, and of relevance to
this paper, it creates a new employment-based immigration category for workers
with advanced STEM degrees from U.S. educational institutions.
Under
this proposal, STEM workers that have advanced degrees (masters or doctorates)
from qualifying U.S. Universities and have offers of employment from U.S.
employers will almost be guaranteed permanent residence. Instead of being subject
to numerical limitations under the second or third employment-based immigration
preference category (EB-2 or EB-3), STEM workers will be exempted from
numerical limitations. As a result, a great
deal more STEM workers will be eligible for permanent residence than are permitted
to become LPRs under the status quo.
In
addition to permitting unlimited immigrant statuses for STEM workers that
graduated with advanced degrees from US educational institutions, the Immigration
Modernization Act also eliminates per country limits on employment-based
immigration.
Therefore, immigrants from countries with a large number of applicants, such as
India and China, will not be subject to separate limits to immigration. All immigrants will be
treated the same regardless of their place of origin. Along with eliminating
per country limits, the Immigration Modernization Act also increases (or
decreases) the overall employment-based immigration limit based on demand from
the previous year. Depending on demand the
overall limit could increase to as much as 250,000 people per year. This would greatly
reduce the backlog of immigrants seeking LPR status in other categories, such
as EB-2 “aliens who are members of the
professions holding advanced degrees or aliens of exceptional ability”
By
providing unlimited LPR statuses to STEM workers that graduate from U.S.
educational institutions, and dramatically increasing the number of LPR
statuses that will be granted to other employment-based immigrants, the
Immigration Modernization Act greatly increases the amount of STEM workers that
can come to the United States as permanent residents.
ii. The Immigration Innovation Act of 2013 (“Immigration
Innovation Act”)
Like
the Immigration Modernization Act, the Immigration Innovation Act provides
expanded opportunities to STEM workers by creating a new immigration category
for STEM workers. However, the special
category for STEM workers created by the Immigration Innovation Act is much
more limited than the category created under the Immigration Modernization Act,
because it is both numerically limited and has additional requirements that STEM
workers must meet.
The
Immigration Innovation Act creates a new immigration status for STEM workers
called “conditional permanent residence.” Conditional permanent
residence under this category is limited to fifty-thousand STEM graduates per
year.
Such STEM graduates must have graduated with an advanced degree from a
qualified U.S. education institution (same as under the Immigration Modernization
Act).
Once an individual obtains residence under this category, their residence is
limited to either (1) “1 year after the expiration of the alien's student visa
… if the alien is diligently searching for an opportunity to become actively
engaged in a STEM field;” or (2) for as long as “the alien remains actively
engaged in a STEM field.” A STEM worker’s
residence in the U.S. under this provision requires active engagement in a STEM
field.
The term “actively engaged in a STEM field” is not defined; therefore it is not
clear how rigorous this requirement will be in practice. Regardless of how strict
the requirement of active engagement in a STEM field is in practice,
conditional permanent residence is more limited than ordinary LPR-status.
Additionally, conditional permanent residents are not
eligible for “unemployment compensation … or [] any Federal means-tested public
benefit.” Conditional
permanent residents are not entitled the same benefits as permanent
residents generally.
After
five years of active engagement in a STEM field, conditional permanent
residents would automatically be converted into ordinary LPRs, if the Immigration
Innovation Act became the law of the land.
Like
the Immigration Modernization Act, the Immigration Innovation Act also
eliminates per country limits on employment-based immigration. Therefore, this
proposal, like the last, would alleviate the backlogs of permanent residence
applications from high-volume employment-based immigration countries, such as
India and China.
VI.
ANALYSIS OF PROPOSED LEGISLATION REGARDING STEM IMMIGRANTS
a.
Improved
Opportunities for Action
Both
immigration categories, under the Immigration Modernization Act and the
Immigration Innovation Act, make it much more likely that STEM immigrants will
be able to lead active, meaningful lives. By providing STEM workers with much
greater access to immigrant status (i.e. permanent residence) STEM workers will
have basic rights of movement that are not available to temporary workers. As LPRs
STEM workers will be able to reside in the United States indefinitely; their
legal residence will not be conditioned on maintaining a specific job or course
of study.
While extending LPR status to an
immigrant increases their rights of movement and economic rights, these
economic rights do not perfectly maximize action, because “the faculty of
action … can be actualized only in one of the many manifold forms of human
community.”
Permanent residents are not complete members of a community composed of
citizens. They cannot vote, and they’re ability to engage in civil disobedience
is limited, because they can be deported for committing crimes.
Even
though permanent residence is not complete membership, being granted immigrant
status puts STEM workers on a path to full integration through citizenship. After residing in the
United States for five years, LPRs are eligible to apply for citizenship. By including immigrants
in its community, the Pennsylvania model maximizes the potential for immigrants
to engage in action. As citizens, STEM workers will have more opportunity to
engage in action and have meaningful lives. They will have equal opportunity to
vote, organize politically, and serve in political offices. They will even be
able to engage in civil disobedience, without risk of being expelled from the
community. They will be complete members, with full access to whatever limited
public institutions the U.S. has to offer. Because both the Immigration
Modernization Act and the Immigration Innovation Act would increase the
opportunity for STEM workers to fully integrate into U.S. citizenry, both
proposals bring the U.S. closer to the Pennsylvania model of immigration.
The
Immigration Modernization Act is particularly good in this regard. It provides
unlimited immigration statuses to individuals that graduate with advanced STEM
degrees from U.S. universities, and drastically increases the number of other
employment-based workers that will be able to obtain immigrant status in the
United States. In this way it could
change the U.S. employment immigration system from one that relies heavily on
(potentially exploitative) temporary worker statuses, into one that actively
integrates employment-based immigrants through permanent residence, and
eventual citizenship.
The
Immigration Innovation Act is a weaker proposal than the Immigration
Modernization Act. The numerical limits on immigration under the Immigration
Innovation Act have the potential to push many STEM immigrants into temporary
work statuses, such as the H1-B. Living under a temporary
work status makes it much less likely that STEM immigrants will be able to have
“active” lives, because their legal status in the country will be unstable
(“conditional”). Even if STEM workers are
able to obtain conditional permanent residence, the additional conditions for
permanent residence undermine the potential for STEM immigrants to have active
lives, because residence is conditioned on active engagement in a STEM field.
The ambiguity regarding what it means to be “actively engaged in a STEM field”
may limit STEM immigrants’ choices and activities; forcing them into a
condition similar to temporary workers, where they cannot act freely for fear
of losing their employment and their residence status.
Additionally,
the unequal treatment of conditional permanent residents in regard to
government benefits is not like the Pennsylvania model of full integration, and
is instead closer to the Virginia model. Conditional permanent residents must
work in their field in order to remain in the United States, and are not given
access to the social safety net of the community. This is an exploitative,
rather than integrative, policy. Rather than limiting the rights of STEM
immigrants to the United States (as per the Virginia model), STEM immigrants
should be given rights that are roughly equal to those of citizens. By
welcoming, and integrating, rather than exploiting STEM immigrants, the U.S.
system can move in close alignment with the Pennsylvania model of immigration.
VII.
CONCLUSION
Employment-based
immigration policy can be improved by reducing or eliminating gaps in the
process of integration that can permanently relegate immigrants (even highly
skilled immigrants) to a pre-political position in society, where action—the
content of a meaningful life—is denied. For this reason, the U.S. reliance on a
system of temporary work statuses should be eliminated. The proposals regarding
STEM graduates analyzed here are both better than the status quo in the United
States, but the more comprehensive Immigration Modernization Act is superior to
the piecemeal Immigration Innovation Act. It is a more consistent application
of the Pennsylvania model, because it actively integrates immigrants by
providing them robust rights as immigrants and an opportunity to obtain full
membership in the community.
Jose
Pagliery, America's
Brain Drain Dilemma: Immigrant Students Who Leave, CNN Money
(February 1, 2013), http://money.cnn.com/2013/01/31/smallbusiness/stem-immigrants/;
Stuart Anderson, Nat’l Found. for Am.
Policy, NFAP Policy Brief July 2013: The Importance of International Students
to America 1-2 (2013).
See
Immigration Innovation Act of 2013, S. 169, 113th Cong.
(2013); STEM Jobs Act of 2012, H.R. 6429, 112th Cong. (2012) (as passed by
House of Representatives, November 30, 2012); Benefits to Research and American
Innovation through Nationality Statutes Act of 2012 (“BRAINS Act”), S. 3553,
112th Cong. (2012); Attracting the Best and Brightest Act of 2012, H.R. 6412,
112th Cong. (2012); Startup Act 3.0, H.R. 714, 113th Cong. (2013) (as
introduced in H.R., February 14, 2013); White
House Office of the Press Secretary, Fact Sheet: Fixing our Broken Immigration
System so Everyone Plays by the Rules (2013) (available at http://www.whitehouse.gov/the-press-office/2013/01/29/fact-sheet-fixing-our-broken-immigration-system-so-everyone-plays-rules) (endorsing
legislation to “‘Staple’ green cards to advanced STEM diplomas” and create a
“Startup visa”).
Arendt, Imperialism at 301 (“The more highly
developed a civilization, the more accomplished the world it has produced, the
more at home men feel within the human artifice—the more they will resent
everything they have not produced, everything that is merely and mysteriously
given them. The human being who has lost his place in a community, his
political status in the struggle of his time, and the legal personality which
makes his actions and part of his destiny a consistent whole, is left with
those qualities which usually can become articulate only in the sphere of
private life and must remain unqualified, mere existence in all matters of
public concern.”).
See generally Susan F. Martin, A Nation of
Immigrants (2011); see also Lawrence H.
Fuchs, The American Kaleidoscope: Race, Ethnicity, and the Civic Culture
8-17 (1990);
See Martin,
supra note 47 at 41, 56, 59; On Revolution 282 (“The trouble lies in the lack of
public spaces to which people at large would have entrance and from which an elite
could be selected, or rather, where it could select itself.”)
Martin, supra note 47 at 4, 287-309.
See INA § 101(a)(15), 8 U.S.C. § 1101(a)(15) (1952), § 214(b), 8 U.S.C. § 1184(b) (2000); see also Steel
on Immigration Law § 3:1 (2d ed.).
See id.; 1
Immigr. Law and Defense § 3:1 (2013 ed.).
Id. Typically, each preference category
uses its full allotment. Ruth Ellen
Wasem, Cong. Research Serv., Numerical
Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings 5
(2011) (available at http://www.fas.org/sgp/crs/homesec/R42048.pdf).
Jeanne Batalova, Migration Policy Inst., The Growing
Connection Between Temporary and Permanent Immigration Systems 5-6 (2006); see also Lauren
E. Sasser, Waiting in Immigration Limbo:
The Federal Court Split over Suits to Compel Action on Stalled Adjustment of
Status Applications, 76 Fordham L.
Rev. 2511, 2519 (2008).
See e.g. Matloff, supra note 12 at 855 (2003).
H. Ronald Klasko,
American Competitiveness in the 21st Century: H-1bs and Much More, 77 No. 47 Interpreter
Releases 1689 (“The new law addresses the delay issue by allowing the
new employer to commence employment of the foreign national upon the filing
of the new petition rather than upon its approval…”); “American Competitiveness in the Twenty-first Century Act of 2000,” Pub.L. 106–313,
Title I, Oct. 17, 2000, 114 Stat. 1251 § 105, INA § 214(n) 8 U.S.C. § 1184(m)
(200).
Christopher Fulmer, A
Critical Look at the H-1b Visa Program and Its Effects on U.S. and Foreign
Workers: A Controversial Program Unhinged from Its Original Intent, 13 Lewis & Clark L. Rev. 823, 857
(2009).
Joseph Weiner, The
Specialty Occupation Requirement for the H-1b Visa, L.A. Law., September 2010, at 14; Batalova, supra note
__.
U.S.
Citizenship and Immigration Servs., USCIS
Reaches Fiscal Year 2013 H-1B Cap (June 12,
2012), http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.5af9bb95919f35e66f614176-543f6d1a/?vgnextoid=ee9f3f93131e7310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
West Group, Congress Clears H-1b Legislation in Surprise Move; President Clinton
Expected to Sign, 77 NO. 39 Interpreter Releases 1437, 1438; “American Competitiveness in the Twenty-first Century Act of 2000,” Pub.L. 106–313,
Title I, Oct. 17, 2000, 114 Stat. 1251 § 102 (amending INA § 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(a)).
Norman Matloff, On the
Need for Reform of the H-1b Non-Immigrant Work Visa in Computer-Related
Occupations, 36 U. Mich. J.L. Reform 815,
817 (2003).
See e.g. Christopher
Fulmer, A Critical Look at the H-1b Visa Program and
Its Effects on U.S. and Foreign Workers-A Controversial Program Unhinged from
Its Original Intent, 13 Lewis &
Clark L. Rev. 823, 857 (2009); Norman Matloff, On the
Needfor Reform of the H-JB Non-Immigrant Work Visa in Computer-Related
Occupations, 36 U. Mich. J.L. Reform
815, 868-69 (2003).
INA §
101(a)(15)(F)(i), 8 U.S.C. § 1101(a)(15)(F)(i) (2006); 8 C.F.R. § 214.2(f)(6)
(2011); Norman Matloff, On the Need for Reform of the H-1b Non-Immigrant Work Visa in
Computer-Related Occupations, 36 U.
Mich. J.L. Reform 815, 817 (2003); 6 Richard Freeman, “The Market for
Scientists and Engineers,” NBER Reporter, no. 3 (Summer 2007).
Ilana J.
Drummond, Hiring International Workers in
Today's Economy: New Challenges and Strategies, Employing International Workers, 2010
Edition: Leading Lawyers on Understanding Recent Immigration Trends, Navigating the Visa Process, and Meeting
Compliance Requirements 69 (Aspatore ed. 2010).
Ilana J.
Drummond, Hiring International Workers in
Today's Economy: New Challenges and Strategies, Employing International Workers, 2010
Edition: Leading Lawyers on Understanding Recent Immigration Trends, Navigating the Visa Process, and Meeting
Compliance Requirements 69 (Aspatore ed. 2010).
See e.g. STEM Jobs Act of 2012,
H.R. 6429, 112th Cong. (2012) (as passed by House of Representatives, November
30, 2012); Immigration Innovation Act of 2013,
S. 169, 113th Cong. (2013); Benefits to Research and American Innovation through
Nationality Statutes Act of 2012 (“BRAINS Act”), S. 3553, 112th Cong. (2012);
Attracting the Best and Brightest Act of 2012, H.R. 6412, 112th Cong. (2012);
Startup Act 3.0, H.R. 714, 113th Cong. (2013) (as introduced in H.R., February
14, 2013); Border Security, Economic Opportunity, and Immigration Modernization
Act, S. 744, 113th Cong. (2013-2014) (as
passed by Senate June 27, 2013).
