The Trump administration is not even a month old, and has already overwhelmed the news, social media and many private discussions. To cap off his first week in office, the president signed an executive order he called “Protecting the Nation From Foreign Terrorist Entry into the United States.” Most of the attention to that order focused on the complete ban of entry to nationals of seven majority-Muslim countries, including refugees, Iraqi nationals who worked with the U.S. military, and even long-time green card holders. Similarly, much ink has been spilled over the botched rollout of the order (it took two days for the administration to clarify that while covered by the order, green card holders and Iraqi special immigrant visa holders would generally have their exclusion waived) and about the subsequent legal challenge and temporary restraining order issued by a federal judge in Washington (recently upheld by the U.S. Court of Appeals for the Ninth Circuit).
After a tumultuous two weeks of coverage of the president’s authority to suspend entry “of any aliens or of any class of aliens” and whether that authority is “completely unreviewable” or subject to the limitations of the First Amendment’s establishment clause, some of the broader consequences of the executive order in our local area are becoming clearer.
In the last few years—with relatively little fanfare—Philadelphia has been greatly improving its tech startup scene. That scene even caught the attention of Huffington Post writers last year, who ranked Philadelphia as tied for fourth place with New York as a destination for tech startups, behind only Austin, San Jose and San Francisco. The city is gaining valuable incubator space, with the Comcast Innovation Center in Center City and the new Science Center in University City under construction, joining university-hosted incubators at Penn and Temple and a host of co-working spaces around Old City.
That innovation, along with continued expansion by the city’s major employers, has increased tech employment in the city. According to Bureau of Labor Statistics data, employment growth in Philadelphia was 4.6 percent in the professional and business services sector in 2016. The city’s tech scene includes a broad range of technologies, including life sciences, big data/marketing analytics, medical devices and pharmaceuticals, in addition to information technology.
An important part of the city’s tech scene is the contributions that immigrants make to that employment growth. Many immigrant tech workers in the city are graduates of the area’s many universities and colleges, which they attend on F-1 student visas. Following their education, they are allowed to participate in a program known as optional practical training, or OPT. That program allows international students to work for up to one year after they graduate in their field of study. The OPT program meshes well with Philadelphia’s broader effort to keep new college graduates in the city, allowing international students to be recruited along with their American classmates to begin building their careers in Philadelphia.
The chaotic rollout of the administration’s travel ban, and its clear demonstration of the power of anti-immigration voices within the president’s close circle of advisers, has caused anxiety about the future of all legal immigration programs. The travel ban swept legal immigrants, including medical residents, physicians, tech workers and students into its scope, in spite of a complete absence of evidence of security threats from those groups. This order signaled that the administration—or at least a significant group of the president’s advisers—was willing to disrupt lives of otherwise law-abiding immigrants in pursuit of an agenda of economic nationalism and immigration restriction.
Philadelphia’s many tech employers and their immigrant employees fear they will be targeted next. As of 2005, for example, President George W. Bush allowed international students in the STEM fields (science, technology, engineering and mathematics) to obtain a further 18 months of OPT work authorization, which benefits our region’s tech employers as they seek to obtain H-1B working visas for those graduates. In 2014, President Barack Obama oversaw a regulation to extend that STEM OPT period from 18 months to 24 months. Another regulatory initiative from the last administration would authorize the use of the executive branch’s “parole” authority to allow entrepreneurs working for startups to seek permission to remain in the United States. Both of these initiatives, according to leaked preliminary drafts of another executive order on legal immigration programs, are targeted for rollback under the new administration.
In this environment of anxiety, immigration lawyers are having to educate employers and employees about the ways in which many of the systems they rely on in planning for their workforce needs and their careers are creatures of statute, which can only be changed by Congress, or of regulation, which could be changed by the administration but only by going through the notice and comment process of the Administrative Procedures Act. At the same time, lawyers have to be honest with their clients that the voices of immigration restriction have gained new traction in Washington, and that the new administration has pulled staffers from anti-immigration advocacy groups into policy positions within the Department of Homeland Security and the agencies responsible for immigration benefits adjudication.
The anti-immigration voices given a platform by the administration have already caused anxiety about the future in Philadelphia. Philadelphia’s tech scene is growing and vibrant, beginning to attract attention from around the country and around the world. The policy debate over legal immigration in the new administration will not just affect Silicon Valley and Seattle, but will also affect the ability of tech employers in Philadelphia—to say nothing of Allentown and Harrisburg and State College and Pittsburgh—to attract and retain workers with the STEM skills they need.
Making America less open to legal immigration will hurt the progress Philadelphia is making toward being an innovation hub, as employers and venture capitalists wind up needing to look abroad for the cities where talent is gathered and robust startup ecosystems can be created. In the months ahead, the startup community will need to make its voice heard on Capitol Hill, during the regulatory process, and by telling its story to the broader community if it wishes to continue to have legal immigrant workers participating in it.
Reprinted with permission from the February 14, 2017 edition of the The Legal Intelligencer© 2017 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
