shutterstock_167669732In last week’s Republican debate, a significant challenge to American businesses was raised – the annual limit  or “cap” on the number of H-1B visas issued – a limit imposed twenty-five years ago, before the Internet and mobile phones and “Big Data” were parts of everyday vocabulary. This issue isn’t a newly discovered problem, it is something that has stymied business growth and innovation for years. The next generation of technologists needed to run our technology infrastructure and continue our world-leading development environment often are international students on F-1 visas – a source of vitality in the U.S. tech sector, and a key part of maintaining America’s leadership in the technology fields. Conservatives and liberals, Republicans and Democrats, have long thought that our country needs to provide a path for these graduates, beyond the H-1B visa. In fact, a bipartisan rallying cry in recent years has been to “staple a green card to their diplomas.” And yet, Congress has not acted.

Because of the challenges in keeping these international students employed in the United States under the antiquated H-1B cap, President Bush caused a regulation to be promulgated to extend the time of these student’s F-1 visas, which President Obama recently caused to be extended further. Not only governmental efforts have been made, however, to keep these students employed in the United States instead of taking their new businesses to Canada, India, or elsewhere. The New York Times recently profiled efforts by the City of New York, the universities in New York, and entrepreneurial international students to develop architectures in which those students could create their businesses in partnership with universities, and thus in the United States. Another article recently profiled how enterprising students and their business partners have had to leverage the visa process to create businesses that qualify for H-1B visas, again making efforts to build those businesses in the United States, rather than abroad.

Senate Judiciary Committee Chairman Charles Grassley (R-IA), unfortunately, does not see these efforts as ways to work with a system designed at a time when cell phones were the size of phone books. What I would call “creative advocacy to deal with an antiquated system Chairman Grassley refuses to reform,” he instead criticized in a letter to U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez. In his written statement for a recent hearing on high-skilled immigration, he indicated that creative use of the H-1B visa to keep a business in the United States was a “scheme to abuse” the visa regulations.

If Chairman Grassley really cares about growing the economy and moving our country forward, it makes no sense to attack job creation and innovation. These H-1B petitions are completely proper under the complicated rules created by USCIS in a 2010 memorandum to show the existence of an employer-employee relationship the H-1B visa category requires. In its memo, USCIS narrowed its traditional view of the employer-employee relationship by making it more difficult, but not impossible, for an entrepreneur be eligible for an H-1B visa. Essentially, the memo requires an entrepreneur to cede significant control of the business over to a corporate board or other management entity in order to qualify for H-1B status.

But let’s take a step back for a moment to look at the big picture and ask, why are we trying to keep these entrepreneurs out of the U.S. in the first place? Of course the bona fides of the entrepreneur and his or her ideas must be established, but once they are it makes little sense to keep a potential job creator out of our country. The “true purpose” of the entrepreneur is to create a successful business. If successful, this business would have a positive impact on our economy. In 2010, according to a report from the Partnership for a New American Economy, 90 of the Fortune 500 companies were founded by immigrants. House Speaker Paul Ryan takes the view that: “Most countries use immigration to strengthen their economies—but we don’t. We should reform our immigration system because it will help America. … [I]mmigration reform will boost per capita income by $1,700 over ten years and reduce the federal deficit by $2.7 trillion.”

The bottom line is immigrant entrepreneurs and innovators play a vital role in our economy and we should be doing everything we can to bring these people into the United States and allow them to build their businesses here.

Written by William Stock, AILA President-Elect