President Obama Should Fix the H-1B Program on His Own

With House Republicans increasingly looking like they will again block immigration reform this year, pressure is growing on President Obama to use his executive authority to block further deportations of most unauthorized immigrants. I have an additional suggestion: use that same executive authority to expand admission of highly-educated temporary migrants to help boost the U.S. economy.

It took just a week this year to reach the annual quota on skilled immigrants under the H-1B program, once again shutting the door until next April. While not without its flaws, the H-1B visa is the primary way in which highly-educated migrants are first able to work in the United States. Most applicants are required to have at least a bachelor’s degree, and special preference is given to foreign students who graduate from a U.S. university with a master’s degree or higher. The visa offers a temporary, three-year work permit which can be extended, but for many the goal is permanent migration to the United States.

But there aren’t very many of them handed out each year. The current quota set by Congress is just 65,000, with another 20,000 reserved for those with advanced U.S. degrees. That quota has been reached every year for the past decade, even during the depths of the recession that followed the 2008 financial crisis. In the last two years, it has been reached within the first week, which requires that the U.S. government hold a lottery to select the winners.

It's been obvious for years that the number of visas is too small, and numerous academic studies suggest that a larger H-1B program would be good for the U.S. economy. And there is widespread agreement in both the Senate and the House that having such a rigid quota on skilled migrants hurts the economy. The Democratic-led Senate’s comprehensive immigration reform bill, passed last year, would raise that cap to as high as 180,000, depending on market conditions. The Republican House Judiciary Committee last year passed the Skills Act, which would raise the quota to 155,000, along with 40,000 for graduates with higher degrees. Both bills would also make important reforms to the program by enabling spouses to get work permits, making it easier for H-1B holders to change jobs, and cracking down on fraud.

In his State of the Union address in January, President Obama said that, while he would try to keep working with Congress, where Congress is stalled he would “take executive actions and administrative actions that move the ball forward.” Expanding the H-1B program is a perfect opportunity to make good on that promise.

Critics of course would accuse him of trampling on the constitution. I am neither a constitutional nor an immigration lawyer, but what I have read suggests to me that both the constitution and various court rulings are at least unclear on the subject. While it is generally accepted that the federal government has complete authority over immigration laws, the division between the congressional and executive branches is less clear. Among the enumerated powers explicitly given to the Congress under the constitution is the power to establish a “uniform rule of naturalization.” But an H-1B visa does not grant citizenship, only a temporary right to live and work in the United States. The Commerce Clause, which gives Congress the power to “regulate Commerce with foreign nations” is also cited as authority for Congress to establish immigration quotas, though temporary migration is not obviously a form of “commerce.”

Such ambiguities are precisely what allowed the White House to halt deportation and offer work permits to the young immigrants who otherwise have no right to remain in the United States, the so-called DREAMers. President Obama is now said to be considering an even broader use of his “prosecutorial discretion” to halt removal and give working papers to most of the more than 11 million unauthorized migrants in the United States. There is no good reason that same power could not be stretched to give more temporary work permits to highly-educated immigrants who would help the U.S. economy.

A radical idea? Sure. And it would almost certainly invite a court challenge. But with Congress paralyzed, some new approaches are clearly needed. In an economy increasingly dependent on innovation, the economic cost of continuing to drive away tens of thousands of talented young would-be immigrants is enormous. If President Obama is finally prepared to flex his muscles on immigration, he could create a program far better suited to the needs of a modern economy. There is no question it would be preferable for Congress to act. But given the broad consensus among members of Congress on the need to expand high-skilled migration, the White House should take a serious look at finally doing for them what they have been unable to achieve themselves.