Why Immigration Lawyers Shouldn’t Do Math

I’m obsessed with the “ACWIA Fee.” You know that one right? Created in 1998 via the American Competitiveness and Workforce Improvement Act (hence the catchy acronym), this fee is paid each time employers sponsor H-1B foreign workers. The ACWIA fee reflects a compromise between proponents of broader immigration access and those who saw the H-1B work visa as a threat to American workers. And it’s brilliant! Every time an H-1B is filed, the employer pays into a pot that supports scholarships and training for American workers in STEM fields. It’s a hefty fee that only an employer without the option of an equally qualified American worker would ever pay.

For years I’ve been doing the math on these fees. I’ve taken into account the fact that the fees were initially set at $500 and then raised to $1000, then raised again to the current $750/$1500 split depending on the size of the company. I’ve calculated the numbers of H-1Bs filed each year under the fluctuating H-1B limits as they skidded from 65,000 to 195,000 then back to 65,000 before being raised to the current 85,000 with a special allotment for U.S. graduate degree holders. I’ve looked at governmental reports on the total number of H-1Bs filed that included filings not subject to the annual limit, such as H-1Bs filed by universities. And my math led me to the ballpark figure of “hundreds of millions of dollars” over the past 20 years. And, until this past April, the public had no idea where this vast pot of money was going.

I found out this April that my math was off. By BILLIONS of dollars. Since 1999, when the ACWIA fee went into effect, it has raised nearly $5 billion that has funded myriad STEM programs for American students, educators and workers, including nearly 90,000 college scholarships in science and engineering, as well as funding for more than one million K-12 students and 50,000 teachers to receive support and training to enter science fields. This information has not been shouted from the rooftops by the Clinton, Bush, Obama or Trump administrations. In fact, the data we have access to seems haphazardly collected and is incomplete. In a recent interview by NPR’s Marketplace, one such recipient was shocked to hear the source of her program’s H-1B-derived funding. The only reason we have this consolidated data is because the nonpartisan National Foundation for American Policy (NAFP) recently engaged in an extensive investigation into these funds in response to the proposal by the Administration that the ACWIA fee be raised yet again.

The ACWIA fee has been a source for compromise on high-skilled immigration for two decades. With each increase in H-1B visas, the ACWIA fee has been correspondingly increased. This unpublicized compromise reflects a thoughtful, policy-driven approach to legislating immigration law and nonetheless, opponents of any immigration ignore its existence and instead continue to rant about foreign workers displacing American workers. Allow me to briefly get onto my soapbox and remind readers that the economy is not a zero-sum game, and immigrants are statistically more likely to create new jobs once here. NFAP research also shows that immigrants have started more than half of American startup companies valued at $1 billion or more. Regardless, there is a direct one-for-one correlation between each H-1B petition filed and direct funding for American workers in areas where we see a high concentration of H-1B talent – the STEM professions.

Here is my suggestion. Let’s be honest about the needs of the American economy. Let’s continue to leverage the ACWIA fee openly and boldly, tracking not just fund allocation but also outcomes of the recipients. Let’s conceptualize this fee as a way for the immigration system to directly support and embolden American workers instead of demonizing the H-1B program without all the facts. In this era where thoughtful compromise seems impossible, I would love to see a path forward that mitigates the idiosyncrasies in the H-1B program that drive immigration lawyers like me insane at the same time that it addresses the concerns of immigration restrictionists in a way that truly supports their constituents as well as the American workers whose personal success is the entire nation’s success.

by Sandra Feist