All posts by Vipul Naik

My Q1 2022 donation to Free Migration Project

I’m planning to make a donation of 3,000 USD to Free Migration Project (FMP) in January 2022. This blog post goes in some detail on my reasoning.  [EDIT: The donation was formally made on Tuesday, January 4, 2022 via ACH, as planned.]

https://vipulnaik.com/blog/my-q1-2022-donation-to-free-migration-project/ is the post’s canonical location (but does not accept comments). I’m cross-posting to openborders.info here (given that FMP works in that area) as well as the EA Forum here (given that some of my decision-making process was guided by principles similar to effective altruist principles). Borrowing from Larks’ AI alignment reviews, I use #openborders and #eaforum for portions particularly relevant to the readerships of those sites.

Sections:

  • Background of where I am with respect to donations
  • Brief description of Free Migration Project
  • Some considerations specific to my relationship with Free Migration Project
  • Some background thinking motivating this donation
  • Reasons for amount
  • Reasons for timing
  • Potential future donations
  • Thoughts on fundraising dynamics

Background of where I am with respect to donations

In a November 11, 2021 post on another donation, I wrote extensively about where I currently am with respect to donations. The TL;DR is that right now, I’m only looking at time-sensitive donation opportunities that beat fallback donation targets (such as the EA Funds and the GiveWell Maximum Impact Fund), and I’m not being super-proactive in identifying these opportunities.

I am also limiting my budget to 1,000 USD per month starting July 2021. As of January 2022, the total amount I can spend would be $7,000 (for 7 months) of which I already spent $1,000 on the previous donation. My donation to FMP thus uses up $3,000 of the remaining $6,000, still leaving an unallocated $3,000 that would roll over to increase the budget for potential future donations.

Brief description of Free Migration Project

I’ll quote the entirety of FMP’s Mission and History page, rather than writing my own description which would likely be less accurate:

Free Migration Project represents immigrant clients in their legal proceedings, provides legal support and training to organizers and advocates, engages in public education and outreach, litigates in the public interest, and advocates for fair and open immigration laws.

Free Migration Project represents clients in public deportation defense campaigns and provides legal and strategic support to undocumented organizers fighting for immigrant rights. We believe that working with undocumented clients to elevate their stories and struggles has helped to educate the public and engender support for undocumented communities in Pennsylvania and beyond.

Free Migration Project envisions a world where free movement of people is the legal norm. We call for recognition of a human right to migrate and the abolition of deportation.

Founded in 2016, Free Migration Project is a 501(c)(3) nonprofit organization based in Philadelphia, Pennsylvania.

You can also take a look at FMP’s 2021 Annual Report for a more concrete picture of FMP’s program work.

Some considerations specific to my relationship with Free Migration Project

I served on the Free Migration Project board from May 2016 to December 2021 and have had past connections with its founder

I was one of the founding board members of Free Migration Project, attending its first board meeting in May 2016. I’m stepping down from the board at the end of December 2021, a little before my maximum of six years on the board would be completed.

I have known David (Dave) Bennion, FMP’s founder, since 2013. I also wrote the email introducing Dave to Alexander Berger, then Program Officer for U.S. Policy at Open Philanthropy; this would ultimately result in a $24,000 grant from Open Philanthropy. I don’t think the fact of me doing the introduction had much effect on FMP getting the grant (I also wasn’t the person who originally had the idea of connecting FMP to Open Philanthropy).

[#openborders] In the proposal that David Bennion submitted for FMP, he mentions discovering openborders.info in 2013 as one of the influences that led him to start FMP. I had originally started openborders.info back in March 2012.

[#openborders] Back in October, I posted an excerpt from Javier Hidalgo’s Unjust Borders that goes over some of this history rather coarsely, starting with Bryan Caplan’s blogging that influenced my decision to start openborders.info.

I donated in December 2019 to discharge my “board member” obligation

In December 2019, I made a $3,000 USD donation to Free Migration Project. I described my reasons for the donation on my donation history page:

I see it as the equivalent of sending $500/year for 6 years, which is the duration of my board tenure. There isn’t a very specific reason for the timing, other than the fact that at the end of the year, I’m thinking about donation opportunities and in particular looking at donations that I have some sense of “obligation” to make. […] I’m not planning to make a followup donation in the near future, since this donation discharges my responsibility; any further donation decisions will be based on the same sort of extensive analysis that I subjected my EA Hotel donation to.

As a board member, I have access to private information and this influences my decision somewhat

As a board member, I have had access to a lot of private information about Free Migration Project. None of this private information is inconsistent with, or even surprising given, public information. However, the private information does give me a clearer picture of the organization that outsiders don’t have, which gives me more confidence about some things.

In an ideal world, I might want to summarize the private information into nuggets that can be disclosed publicly and run them by FMP before publishing; however, the time constraints I currently have for this post don’t permit that. However, I can describe some of the kinds of information I have access to, that influence my decision to donate, that an outsider wouldn’t have access to:

  • Information on foundation funding received by FMP, including the names of foundations, and in many cases the amount and the timing of commitment and disbursement (only a subset of this information is public)
  • Access to FMP’s strategic plans and some of the legal and tax filings
  • Access to board meeting minutes (as well as my memory of having attended the board meetings) that includes summaries of FMP’s program work, fundraising challenges, and more, at various points in time over the past six years
  • Access to various evaluations done by board members and staff of the executive director
  • Information on FMP’s budget and finances

I will not have continued access to further board updates starting 2022, and any additional information I have access to will be through explicit sharing by FMP with me.

I would say the most crucial piece of private information I have is around the current financial state of the organization, which gives me a clearer sense of the value of marginal donations.

As a board member, I was asked (not required!) to contribute to FMP’s end-of-year fundraiser

For various reasons (increased staff size meaning a larger annual budget for 2022, some delays with foundation funding being disbursed), FMP is holding a larger end-of-year fundraiser than usual, targeting $20,000 (this is only a small portion of their annual operating expenses; it’s just an amount that was considered a reasonable goal for an end-of-year fundraiser). As a board member, I was asked to think of ways to contribute.

The most common, and the suggested, way for board members to contribute was to run fundraisers. For various reasons, my preferred mode of contribution was to donate directly rather than run a fundraiser; I describe my thinking on this point later in the post.

The “ask” made of board members did not significantly affect my decision to donate or of how much to donate. I feel that I have already discharged my basic financial obligations as a board member with my December 2019 donation, and if I had ultimately decided against the donation, I would not have felt bad about this. However, some of the backdrop (that led to the ask) did influence my decision.

Some background thinking motivating this donation

My reasons for thinking of FMP as worth supporting

[#openborders] My main reason for supporting Free Migration Project is that it is one of the few organizations (and the only one I clearly know) that supports freedom of movement as its core mission. As the person who started openborders.info, I think this is an important cause, and I think even the existence of FMP helps continue to generate visibility for this super-important cause. This provides a kind of lower bound on FMP’s value; even if I were completely unconvinced by the value of FMP’s program work, FMP’s total budget is so small in the grand scheme of things that it seems, from a big-picture philanthropic perspective, that it more than pays for itself.

[#openborders] In terms of activities, the main thing FMP does to directly promote open borders is organize the Open Borders Conference. I reviewed the 2021 conference and overall think the conference is pretty good. I did a little thought experiment a while ago — could something like the Open Borders Conference exist without FMP? I think it could, but it would probably be harder to organize, and it would likely fluctuate more year-to-year based on the whims of individuals involved, rather than being a steady part of the landscape.

Existence value and the Open Borders Conference are my two main reasons. I also mentioned a few other points in my Open Borders Action Group post, but I still haven’t fully wrapped my head around how to assess the direct, object-level impact of FMP’s legal representation work and its activism on beneficiaries. If you want to dig into this yourself based on public information, check out FMP’s 2021 annual report.

[#eaforum] I’m reasonably confident that the direct impact on beneficiaries is positive and cost-effective (in the crude sense that benefits to beneficiaries exceed costs of program work), but have no idea how it stacks up against other philanthropic activities that help people. In general, in my mind, justifications based solely on direct impact on beneficiaries need to clear a very high bar given the alternative of GiveWell top charities, for reasons similar to what Open Philanthropy described here. But I haven’t done too much analysis of FMP’s activities to the point where I could say anything concrete about them beyond these general priors.

For my donation, thus, I strictly considered only the two things I could get a grip on: existence value, and the Open Borders Conference.

FMP has room for more funding

FMP is a small organization and has a small budget. It currently has only three full-time employees. So it doesn’t need a lot of money.

However, as of the time of my donation, it is meaningfully short on funds. Part of this is due to some foundation funding that had been committed but not disbursed yet. Part of this is because FMP’s staff had expanded from a size of one (two years ago) to a size of three, and the fundraising operation had not scaled appropriately.

One other factor is that with the replacement of immigration hardliner Trump by the more moderate Biden, much of the money that would have funded migration-related activism has dried up, as donors have chosen to focus on other causes. Since my interest in free migration is more long-term and not related specifically to the margins of US federal politics, this seems like the right time for donors with my mindset to step in.

Reasons for amount

My donation budget

As I mentioned earlier in the post, I am accumulating a donation budget of 1,000 USD per month starting July 2021. By January 2022, I will have $7,000 accumulated, of which I’ve spent $1,000 so far, leaving $6,000. However, I’m making the decision and commitment in December, so in my mind I was really playing with only $6,000 – $1,000 = $5,000.

The donation budget sets an upper bound; I believe that there’s a decent chance that I will identify better donation targets in the coming months, and do want to leave some of my donation budget for those better targets. That partly explains why I am not spending the entirety of the $6,000 or $5,000.

I would say that my donation budget is one of the main reasons I didn’t donate more, but a greater donation budget wouldn’t translate directly to the same increase in how much of a donation I would make. I did a little thought experiment and estimated that I could go up to $5,000 if my donation budget were around $15,000, and up to $10,000 if my donation budget was around $50,000. This brings me to the next topic, the marginal value of funding. (Basically this is trading off the known value of FMP against the value of future opportunities and the likely funds I will need in order to be able to fund those opportunities).

Marginal value of funding for FMP

The amount I have chosen falls well within the range where marginal funding directly helps FMP with its goal of continued existence, which is necessary for its existence value and its ability to sponsor the Open Borders Conference (the two reasons I want to donate to it).

Since I limited my investigation to the range of values that I was actually likely to donate, I don’t have a very clear sense of the marginal value of substantially larger amounts of funding, nor is this the right post to go over that. But I can say the following:

  • I do suspect diminishing returns in donations to FMP to quite an extent (for my goals of existence value and ability to sponsor the Open Borders Conference), and I do think $3,000 is enough to see at least some meaningful change in the slope of the marginal value curve. So the first $3,000 I donated are much more valuable than the next $3,000.

  • The investigation I did would make me confident of donating up to $10,000 if my donation budget were not constrained, even taking into account other funds FMP expects to raise. After $10,000, I wouldn’t be sure this is a clearly time-sensitive opportunity that beats out fallback donation targets (which are actually pretty good value-for-money, so this is a high bar). To be clear, $10,000 is way less than the amount FMP needs for its budget. And also, my investigation scope was limited to looking at the kind of funds I actually expect to give.

One takeaway for other donors: if you’re fully aligned with me and less constrained than I am on donation budget, I think donating up to $7,000 total would be great. I don’t expect to influence more than 2-3 people, so donating up to $1,000 should be safe; even if 3 people ended up donating $1,000 based on this post it would still be well under the $7,000. If you’re thinking of donating more than $1,000, I recommend getting in touch with FMP and doing your own marginal value calculation based on the most up-to-date information at the time of your donation.

Reasons for timing

FMP’s financial situation

One of the main reasons for the timing is FMP’s financial situation. I already described some general aspects of this in an earlier section “FMP has room for more funding”. I can’t go into further details, but basically I do believe this is one of those relatively rare times in the organization’s history where the value of donations is high.

My donation budget accumulation

As I mentioned earlier in the post, I am accumulating a donation budget of 1,000 USD per month starting July 2021. By January 2022, I will have $7,000 accumulated, of which I’ve spent $1,000 so far, leaving $6,000. This gives me room to make donations.

My exit from the board

Even before being apprised of the financial situation, I had been considering making some sort of donation to mark my exit from the Free Migration Project board at the end of 2021, as a sort of “parting gift”. However, this consideration is minor in the scheme of things.

Maturing of background investigation

I have been thinking off and on about related topics and collecting information over the past few months. Around December, I felt I had enough information to make a case (to myself) for a donation.

[#openborders] My Open Borders Conference 2021 review can be thought of as one public-facing piece of such background investigation; so can my post on understanding Open Philanthropy’s migration policy work. My work on the timeline of immigration detention in the United States and the Berks County Residential Center was also for the loosely related goal of understanding the space. I also had a number of private conversations, mostly in November 2021, and most of them not directly related to FMP, to build understanding of the space.

Tax considerations favored deferring the donation to January

Content warning: technical section, highly specific to US income taxes, people in high-tax states, and people within some income brackets. This section can be skipped without loss of context.

My only donation in 2021 was not tax-deductible in the United States. Thanks to the SALT deduction cap of $10,000, and the fact that my California state taxes are over $10,000, the total deductions I can take if I itemize deductions are $10,000 + charitable donations. The standard deduction for 2021 is $12,550 and the standard deduction for 2022 is $12,950.

Donations to FMP are tax-deductible.

So we can run the two scenarios:

  • Scenario 1: I donate $3,000 to FMP in 2021. I get to itemize deductions, since my itemized deductions of $10,000 + $3,000 = $13,000 exceed the standard deduction of $12,550. I save $13,000 – $12,550 = $450 in taxable income (so something between $100 and $200 in taxes).

    However, for 2022, I start from scratch, and my first $2,950 of donations are not tax-free since that’s what’s needed to make my itemized deductions reach the standard deduction threshold.

  • Scenario 2: I donate $3,000 to FMP in 2022.

    In this case, for 2021, I just take the standard deduction of $12,550. I don’t get benefits of extra deductions.

    For 2022, since $10,000 + $3,000 = $13,000 exceeds the standard deduction of $12,950, I itemize my deductions. I save $50 in taxable income, which is between $10 and $20 in taxes — not a big deal. But now, all further donations in 2022 are tax-free.

So if I’m planning to donate $X in tax-deductible donations in 2022 (over and above this FMP donation), my total saving, across both years, over the standard deduction works out to:

Scenarios Case X < 2,950 Case X >= 2,950
Scenario 1 450 450 + (X – 2,950) = X – 2,500
Scenario 2 50 + X 50 + X

After some further math, we find that if X >= 400, then Scenario 2 is preferable to Scenario 1. So if I expect to donate at least $400 in 2022 (over and above this $3,000 FMP donation), I expect to save on taxes by deferring to 2022. The amount I save on taxable income is X – 400 for X up to 2,950, and for larger X it’s just 2,550 USD.

The intuitive explanation for this:

  • Let’s say that the standard deduction didn’t change across years. Then it would always make sense to engage in donation bunching (aka donation bundling), so that as much of your donations as possible are working to reduce your taxable income. Since I didn’t make other donations in 2021 but might in 2022, this argues for deferring to 2022.

  • However, the standard deduction increases each year, so that is an argument for donating earlier so as to benefit from having more of a reduction in taxable income from exceeding the standard deduction.

  • Combining both of these considerations, we see that the amount we plan to donate in 2022 needs to exceed the standard deduction increase from 2021 to 2022 (namely $400) in order for us to benefit from deferring to 2022.

Although I’m not totally sure, I actually do expect that I’m likely to donate at least $400 in 2022 excluding the FMP $3,000 donation, so it makes sense to defer. With that said, if I ended up donating less than $400, I would not be devastated. I’m unlikely to deliberately change my donation behavior to get past the $400 point just to prove my past self right.

I did confirm that deferring from December to January did not meaningfully affect FMP’s finances

In general, tax considerations are only a minor factor in my donation decisions. In fact, neither my Q1 2019 EA Hotel donation decision nor my most recent donation were tax-deductible for me, but I made them. FMP is tax-deductible, and if considerations on the FMP side led me to believe that there was a significant benefit from donating sooner, I would have done so.

However, based on the information I had, I concluded that donating in January — as long as I committed and communicated the donation in December — would be good enough.

Potential future donations

A lot depends on other donation opportunities I might find

It’s possible that over the coming months, I will find other donation opportunities that I consider a more meaningful use of my donation budget. I’m not committing anything to FMP beyond this donation; moreover, since I am exiting the board I won’t have any obligations of any sort.

I would want to understand FMP’s role in spreading the idea of free movement and open borders better

If I were to donate to FMP in the future, or to recommend to others to donate more to it, one thing I’d like to nail down is a better picture of how exactly FMP is spreading the idea of free migration and open borders, and how successful it has been. I might have further conversations with Dave on this point in the coming weeks and months, and might write more about this (even if I don’t make a further donation, as long as I think there’s enough value in what FMP is doing to be worth bringing to the attention of others).

Thoughts on fundraising dynamics

FMP’s overall fundraising strategy

[#eaforum #openborders]

I can’t comment too much on the details of FMP’s overall fundraising strategy, but I will say that the bulk of FMP’s funding at present does not seem to come from avid open borders believers or the effective altruist community or its penumbra. The funding pattern seems to be reasonably similar to what you would expect of a migrant rights organization; even more specifically, of a migrant rights organization based in the Philadelphia region.

Given FMP’s staff expansion in the last few years, the organization needs to, and is working to, expand its fundraising to keep pace with its size. I expect the bulk of this expansion to be with the same sort of donor base that has sustained FMP so far. Most of these donors have fairly different terminal values than I do; also, instrumentally, the fundraising techniques that will work with these donors will be different from the things that would appeal to me.

The role of donors more broadly similar to me (interested in open borders, some connections to effective altruism in the sense of interest in doing the most good) will likely depend on the extent to which FMP is able to make the case for how its activities help promote open borders more broadly. I expect to get a better understanding of this in 2022.

The alternative approach of running fundraisers

Many others on the board are running or considering running end-of-year fundraisers for FMP using Facebook fundraisers; I heard that other board members were using Stack for fundraisers. Here are two of the fundraisers: Jamila HammamiJasmine Rivera. Two of the board members are also running a trivia night fundraiser.

Doing a fundraiser did not personally sit well with me (though I wish the best of luck to those running them). I’m articulating below some of my reasons, that are partly personal and partly general epistemic considerations:

  • [#eaforum] I generally favor making fewer, larger donations that have a lot of thought in them, over several smaller donations: This is based on a more nuanced version of the one charity argument (amazingly enough, the linked post I wrote over 12 years ago, back when I was a much less sophisticated thinker, still seems to be one of the best expositions I know on the subject). The world of donations, in particular in the effective altruist sphere, has evolved a lot since that crude argument, but I think the general crux — the idea that we should keep directing donations to the top charity at the relevant margin until the margins change enough — still applies.

    While we can imagine some charities, such as the local soup kitchen, where the marginal calculus changes after a few hundred dollars, most moderate-sized charities won’t have the margin change at those small amounts. As a rule of thumb, I set a minimum of $1,000 per donation and generally think in multiples of thousand when thinking about how the marginal value of donations may change. If my donation budget were under $1,000 (which it isn’t right now, but was at some points in the past), I would allocate it all to at most one charity.

    I know of three kinds of exceptions to the rule favoring larger donations:

    • Donations as gifts: As I noted in my earlier post, I would cap such donations at three times the private benefit to me. Donating to FMP doesn’t really fit in this category.

    • Donations as compensation for effort answering questions: In the past, I’ve had cases where I talked to a nonprofit about donation, but became less excited about donation after thinking and talking more. However, I want to reimburse the nonprofit for the effort of talking to me. A donation of a few hundred dollars seems appropriate for this sort of case.

    • [#eaforum] Donations coordinated with multiple other donors, e.g., as part of something like a S-process: As Andrew Critch explains in a video, S-process funding with multiple funders takes turns allocating small portions of each funder’s budget in decreasing order of marginal value. For organizations that all funders are similarly excited about, this process spreads out the funding for the organization across funders. The key is that an individual funder isn’t going completely before or after other funders. So the marginal value of each additional unit of funding from an individual funder changes not just due to that funder but due to the funds from other funders.

      If there are several highly similar funders participating in a S-process, all of whom have very similar marginal value functions, this process could lead to smaller per-funder allocations from individual funders to the organization.

      This donation is not part of an explicit S-process, nor can I identify even any implicit S-process-like mechanism here. Also, I as a donor have very different marginal value functions from most of FMP’s donor base.

  • One possible argument for fundraisers is that they raise awareness of the organization (FMP), and some of those participating in the fundraiser may form a direct relationship with FMP and donate more in future years. I think this is plausible but unlikely if I ran a fundraiser (given my friend group), though the consideration might be more plausible for some of the others running fundraisers.

    However, I am trying to raise awareness in other ways; for instance, with my Open Borders Action Group post and with this blog post you’re reading right now. If anything, I think making a donation sends a more credible and convincing signal, though that was a very minor consideration for me when deciding to donate.

  • In some cases, the pressure to contribute to fundraisers works on a reciprocal basis: I donate to your fundraisers, you donate to mine. Since I generally don’t donate to others’ fundraisers, this reciprocal basis doesn’t really apply to me.

Conclusion

All in all, I am pretty satisfied with my decision to make a $3,000 donation to FMP after writing about it in more depth. I encourage highly aligned donors to make $1,000 donations even without further investigation, and to connect with FMP for the latest fundraising information if they are interested in donating more.

My next step would be understanding more clearly the role that FMP plays in spreading the message of open borders. Such an understanding might influence me to donate more in the future. I might also write more publicly about my understanding in 2022 or later as I acquire more understanding (even if I end up not donating further). However, it’s possible I become more interested in other donation opportunities in the future and decide not to investigate this further.

Understanding Open Philanthropy’s work on migration policy

NOTE: I sent a draft of this post to Open Philanthropy for comment. They wrote:

We may share an update on our plans for future work on this cause at some point, but don’t have anything we’re ready to discuss publicly just yet.

My co-blogger Sebastian wrote posts in 2015 and 2016 reviewing Open Philanthropy’s thinking and grantmaking work in the migration space. It’s now five years since the last post so I thought it’d be worth revisiting the body of work.

This post is structured a bit differently than Sebastian’s posts, which went into detail on the individual grants. Since we now have a larger set of grants (22 grants directly identified as being related to migration policy) it’s not that valuable to discuss them individually, or even the ones made since Sebastian’s last post. Instead, the post focuses on Open Philanthropy’s overall strategy changes, how these changes are rooted in their broader worldview and strategy, and the implications of these changes.

The post is structured as follows:

  • Evidence that Open Philanthropy is reducing its involvement in and commitments to migration policy
  • Factors influencing the reduced involvement
  • Discussion of the implications, both in terms of what we can learn from Open Philanthropy and what it means for the crowdedness or lack thereof of the space

General links for reference:

Evidence that Open Philanthropy is reducing its involvement in and commitments to migration policy

Implicit evidence from the pattern of grantmaking

A few lines of evidence are suggestive:

  • The grants database includes only one grant in 2021 (of $600,000 to the Federation of American Scientists, which is a different flavor than past grants) and otherwise no other grants since November 2020.

  • Open Philanthropy has been using exit grants as well as reducing levels of commitment even for grantees that they are continuing to support:

    • The March 2020 grant to the Center for Global Development for the migration program (led by Michael Clemens) appears to reduce ongoing support for the program from the $600,000/year for the previous grant to a funding level of $200,000/year (after one year at the old funding level) that “may be more sustainable for the long run.”

    • They exit-granted Labor Mobility Partnerships (LaMP) in November 2020 (see note below on the LaMP exit grant being a little different and possibly not evidence of general exit from the space) and Niskanen Center in January 2020.

    • They had previously exit-granted Protect the People back in 2016, though that exit grant was tied more to providing initial philanthropic funding to a project whose goal was to be sustainable. More details on Open Philanthropy’s learnings from the program are here.

The exit grant to LaMP is a little different from the other exit grants: I have it on good authority that Open Philanthropy did not intend, even at the time of incubation, to support LaMP in the long term — just to get it off the ground. The “exit grant” should therefore not be thought of as a reduction in a previous planned commitment, and therefore shouldn’t be thought of as a sign that Open Philanthropy is trying to exit the migration policy space. It is, however, tentative evidence suggesting that the level of future grantmaking may be less than the level of grantmaking in 2019 and 2020 (when LaMP was receiving grants).

A counterpoint to the narrative of exit is a look at the raw numbers which actually shows 2020 as the biggest year in terms of money donated for migration policy (at $3.7 million donated). That number alone is misleading because grants often have multi-year timeframes, and depending on when the first grant was made and what the periodicity is, the grants can sometimes bunch up in a year. Indeed, this was the case for 2020:

  • The March 2020 grant to the Center for Global Development happened at the end of the three-year timeframe of the previous March 2017 grant. The amount of the March 2020 grant was less than that of the previous March 2017 grant, as discussed above.

  • The January 2020 exit grant to Niskanen Center was at the end of the two-year timeframe of the previous January 2018 grant. The amount was also half — reflecting a shorter period of support, but the same rate per year.

  • The August 2020 exit grant to Labor Mobility Partnerships was a little before the end of the 1.5-year timeframe of the previous 1.5-year March 2019 incubation grant. The amount was also corresponding lower but at roughly the same rate per year.

Based on giving in 2020, the two main programs that Open Philanthropy seems interested in continuing to support on an ongoing basis are the Center for Global Development migration program (at $200,000/year) and the International Refugee Assistance Project general support (at $500,000/year).

One positive sign of increased giving was a grant to Mercy Corps for seasonal migration in Nigeria. Open Philanthropy has previously funded studies of migration around the world, and this seems in line with that past funding — but the magnitude of the Mercy Corps funding is significant at $1,000,000. It is unclear, however, if this was a one-off, and moreover, this is a bit outside what we normally think of as migration policy (as the barriers being addressed when promoting seasonal migration are more financial and educational than policy restrictions).

Explicit statements from Open Philanthropy

I could not find a lot of public discussion by Open Philanthropy of strategy changes tied to funding specifically in the migration policy space. However, grantmaking in migration policy is mentioned in their annual progress reports. These reports make clear that Open Philanthropy is interested in continuing to maintain support at relatively low levels in this cause area for now. What they don’t make clear is whether there are any changes to the relative importance over the years.

The 2017 progress / 2018 plans post says:

By default, we plan to continue with our relatively low level of effort and resources in other focus areas (e.g., macroeconomic stabilization policy, or “other” global catastrophic risks).

Although migration policy is not listed here, it is implicit, as becomes clear from the evaluation in the 2018 progress / 2019 plans post post:

We also wrote:

By default, we plan to continue with our relatively low level of effort and resources in other focus areas (e.g., macroeconomic stabilization policy, or “other” global catastrophic risks).

Other grants included the Center for Popular Democracy and the Economic Policy Institute (macroeconomic stabilization policy), the International Refugee Assistance Project (immigration reform), and California YIMBY (land use reform).

The 2018 progress / 2019 plans post sets a similar goal for 2019:

By default, we plan to continue with our relatively low level of focus and resource deployment in other areas (e.g., macroeconomic stabilization policy).

The 2019 progress / 2020 plans post confirms this:

We also wrote:

By default, we plan to continue with our relatively low level of focus and resource deployment in other areas (e.g., macroeconomic stabilization policy).

Other grants included the Center for Global Development (Global Health and Development), California YIMBY (Land Use Reform), the International Refugee Assistance (Immigration Policy), Employ America (Macroeconomic Stabilization Policy), and the Center for Election Science (other).

The 2019 progress / 2020 plans post sets a similar goal for 2020:

By default, we plan to continue with our relatively low level of focus and resource deployment in other areas (e.g., macroeconomic stabilization policy).

The 2020 progress / 2021 plans confirms this:

We also wrote:

By default, we plan to continue with our relatively low level of focus and resource deployment in other areas (e.g., macroeconomic stabilization policy).

Our giving in causes beyond those listed above remained at comparatively low levels. Grants in these areas included the Center for Global Development (Immigration Policy), Employ America (Macroeconomic Stabilization Policy), Mercy Corps (Immigration Policy), the International Refugee Assistance Project (Immigration Policy), and YIMBY Law (Land Use Reform).

And it says the same for 2021:

By default, we plan to continue with our relatively low level of grantmaking in other areas (e.g., macroeconomic stabilization policy).

How the evolution of grantmaking in migration policy compares with other cause areas

Certain cause areas have been prioritized by Open Philanthropy; this prioritization can be seen in the annual progress reports and is also reflected when we look at the pattern of grantmaking. Example areas include AI safetyanimal welfare, and biosecurity and pandemic preparedness. Some indicators of continued focus in these areas include:

  • At least a few grants in 2021.
  • Large amount of annual grantmaking (at least several million a year).
  • Diversity of grantees (large numbers of distinct grantees).
  • Identification as a high-priority area in blog posts and public materials.

Migration policy clearly isn’t in league with these. But perhaps it’s better to compare migration policy with other areas that are more structurally similar: land use reform and macroeconomic stabilization policy. Here is what the comparison indicates:

  • All three areas get a similar treatment in Open Philanthropy’s annual progress / plans report.

  • Migration policy has slightly higher overall spend across the years, though with the dubious distinction of a lot of exit grants, which is more evidence of Open Philanthropy scaling back in the area.

  • Land use reform, like migration policy, has had a relatively quiet last couple of years; although the amount donated hasn’t fallen much, the diversity of organizations receiving grants in recent years has reduced. However, it doesn’t seem to have had explicitly announced exit grants, and one of the factors causing infrequent granting is the long timeframes for grants (meaning less frequent renewal). So there isn’t that much change to the number of organizations being supported if you consider whether they are stilll within the timeframe of a previous grant. The graphic here helps visualize this.

  • Macroeconomic stabilization policy, relatively speaking, is teeming with activity in terms of diversity of grantees.

My overall assessment is that migration policy is pretty comparable with land use reform, though with slight pattern differences. Macroeconomic stabilization policy is a little ahead right now.

Factors influencing the reduced involvement

When Open Philanthropy published its Labor Mobility cause report back in May 2013, it considered the area to have high potential. Similar cause reports were published for other areas. Over time, some of these areas “took off” with Open Phil deciding to spend much more on them, and others, such as migration policy and land use reform, continued at maintenance levels. What happened in the intervening years that affected this? Let’s understand a bit about how Open Phil evaluates causes, and then look both at how their general thinking has evolved and their specific learnings in the migration policy space.

Importance, neglectedness, and tractability and BOTECs

Open Phil follows a framework similar to the framework of importance, neglectedness, and tractability: they want to pick important causes that have been neglected by other funders and are tractable.

The initial cause report established migration policy as important but was ambivalent about the questions of neglectedness and tractability. Over the years, Open Phil has acquired more evidence on neglectedness and tractability — particularly tractability of the kinds of areas where money can move things forward.

One of the practices followed commonly in Open Philanthropy’s internal grant writeups is that of BOTECs (back-of-the-envelope-calculations) that roughly estimate the cost-effectiveness of a grant. BOTECs incorporate the ideas of importance, neglectedness, and tractability all into a single formula.

In addition, beyond individual grants, Open Philanthropy uses similar cost-effectiveness calculations to inform how much to focus on particular cause areas.

Evolution of the “bar” for grants

In thinking about different buckets of money allocation, Open Philanthropy separates long-termist grantmaking from near-termist grantmaking (recently renamed global health and wellbeing), and further separates human-centric grantmaking from animal-centric grantmaking. The “near-termist, human-centric” group of grants includes several areas such as global health and development, scientific research, immigration policy, land use reform, and macroeconomic stabilization policy.

One key evolution in Open Philanthropy’s thinking, particularly as it applies to near-termist, human-centric grantmaking, is in the “bar” that grants must satisfy in terms of the cost-effectiveness multiplier expected. This evolution is described in detail in the 2019 blog post GiveWell’s Top Charities Are (Increasingly) Hard to Beat. As the blog post describes, Open Philanthropy’s original bar for cost-effectiveness was that it should beat out the 100x multiplier expected for unconditional cash transfers. However, by the time of the 2019 blog post, Open Philanthropy is considering a bar of 500-1,500x, comparable with GiveWell top charities.

The raising of the bar is a reflection of greater confidence in the cost-effectiveness estimates underlying GiveWell’s top charity selection, as well as more confidence that there is enough room for more funding for these charities to use up. In a review of past BOTECs, this led to the conclusion that out of 33 grants whose internal writeups including ex ante BOTECs, all passed the original 100x bar but only 8 of the 33 passed the 1000x bar.

A predicted consequence of this raising of the bar would be a reduction in grantmaking in near-termist, human-centric areas including criminal justice reform, migration policy, land use reform, and macroeconomic stabilization policy. However, the blog post disavows any immediate major changes to grantmaking patterns:

We are still in the process of thinking through the implications of these claims, and we are not planning any rapid changes to our grantmaking at this time. We currently plan to continue making grants in our current focus areas at approximately the same level as we have for the last few years while we try to come to more confident conclusions about the balance of considerations above. As Holden outlined in a recent blog post, a major priority for the next couple years is building out our impact evaluation function. We expect that will help us develop a more confident read on our impact in our most mature portfolio areas, and accordingly will place us in a better position to approach big programmatic decisions. We will hopefully improve the overall quality of our BOTECs in other ways as well.

If, after building out this impact evaluation function and applying it to our work to date, we decided to substantially reduce or wind down our giving in any of our current focus areas, we’d do so gradually and responsibly, with ample warning and at least a year or more of additional funding (as much as we feel is necessary for a responsible transition) to our key partner organizations. We have no current plans to do this, and we know funders communicating openly about this kind of uncertainty is unusual and can be unnerving, but our hope is that sharing our latest thinking will be useful for others.

More recent developments, however, suggest that Open Philanthropy is following through on its plans to scale back in areas of grantmaking where this bar is not met. The most salient example is the spinout of the criminal justice reform grantmaking to its own organization, Just Impact. While the scale of giving in migration policy is probably too small to justify a spinout to a separate organization, the general thinking around scaling back grantmaking may also apply to migration policy and other areas.

[Added after the original post]: Open Philanthropy reaffirms in a new post that it has been using the “roughly 1,000x” bar for funding new programs since the 2019 post:

As of 2019, we switched to tentatively thinking of “roughly 1,000x” as our bar for new programs, because that was roughly our estimate of the unfunded margin of the GiveWell top charities, and we thought we would be able to find enough other opportunities at that cost-effectiveness to hit our overall spending targets.

Specific learning by Open Philanthropy about migration

Combining information gleaned from various grant write-ups, the following are some learnings Open Philanthropy appears to have acquired about the migration space:

  • They have become a bit more bullish on refugee migration. Here’s a blurb found on a few recent refugee migration grants such as the 2019 IRAP grant:

    In the past, our immigration policy work has not focused much on refugee resettlement, which we had assumed would be more crowded than other aspects of immigration policy with funders aimed at supporting increased opportunities for people to move to the U.S. for humanitarian reasons. While we continue to believe that is directionally correct, our increased interest in supporting advocacy around refugee resettlement is partially based on learning more about the fairly limited foundation funding for advocacy around refugee resettlement.

    The largest ongoing commitment seems to be support for IRAP at a rate of $500,000/year.

  • They have struggled to find success in the space of influencing policy around labor mobility or migration more generally. They’ve exited the space in various ways, including exiting Niskanen Center, exiting Labor Mobility Partnerships after helping start it, and reducing ongoing commitment to the Center for Global Development’s migration program to $200,000/year.

  • Their efforts to fund programs that directly support worker visas (such as grants to the U.S. Association for International Migration and Protect the People for Haiti H-2A visas) didn’t give the desired magnitude of results. Though not mentioned in their write-ups, their efforts to create sustainable flows from Haiti got a big blow when Haiti was removed from the Eligible Countries List in January 2018. This was after they published their October 2017 retrospective.

Discussion of the implications, both in terms of what we can learn from Open Philanthropy and what it means for the crowdedness or lack thereof of the space

Open Philanthropy’s reasons for not focusing on migration policy are related to tractability

As best as I can make out, Open Philanthropy has not significantly changed its thinking on the importance of the issue or its neglectedness (with the exception of refugee migration where it has updated toward that area being more neglected). Rather, the biggest updates have been around tractability (where there was initially a lot of uncertainty). To break that down further, this is talking about the tractability of what Open Philanthropy and its grantees can accomplish, and not the tractability of what they could accomplish if they had the ability to directly write migration policies.

One important multiplier that significantly diminished tractability is the uncertainty of pushing desired changes through political systems. This applies particularly to political advocacy, think tank work, etc.

Another factor affecting tractability is that individual programs to navigate complex systems, such as the H-2A use by Haiti, can suffer from program design challenges and limitations. New patterns of migration tend to start slowly and grow over time, which also makes the evaluation of programs to push for these more complicated.

Neither of these reasons has much effect on our estimate of the value of changing migration policies themselves. It’s more about Open Philanthropy’s relative lack of power in affecting those changes.

This is an update of sorts against migration philanthropy for donors with a similar quantitative focus

Open Philanthropy is well-funded and has devoted a fair amount of time and energy to exploring possibilities in migration philanthropy. If they have not found strong opportunities for migration philanthropy, that suggests that such options are probably either not available or hard to find. So while this shouldn’t change our view on the moral justness or practical consequences of immigration restrictions, it should make us more pessimistic about the ability of philanthropy to meaningfully move this. For donors who are moderately cause-agnostic, it does look like, relative to other causes, migration policy may not be the right thing to focus on.

There is space for other donors passionate about migration policy to make donations

Even if we update against migration policy from a purely near-termist cost-effectiveness angle, there’s still plenty of room to donate in the space for donors who are interested both in helping people now and in shaping the long-term discourse.

Open Philanthropy has transformed spaces like animal welfare and AI safety by pumping huge amounts of money into these spaces. In animal welfare, they were a major source of funding for cage-free campaigns. With AI safety, they’re a major source of funding for several AI safety organizations (along with Jann Tallinn via the Survival and Flourishing Fund).

In contrast, because of the various reasons discussed in the post, they have not flooded the migration policy space with money. For donors who are not looking at immediate cost-effectiveness, and are passionate about this cause, the many opportunities — including ones that Open Phil has funded and ones it passed up on — would be worth looking into.

A comparison of different migration policy philanthropy options would be a separate post; I did one years ago collating comments on an EconLog post. I do have more updated thoughts on the matter, but it would take some time to write them up.

Conclusion

Although funding migration policy did not “take off” as a cause for Open Philanthropy, they don’t appear to have updated away from the importance or neglectedness of the issue. Rather, they have struggled to find philanthropic opportunities that are cost-effective. Donors with a similar mindset as Open Philanthropy should use this information to also update away from migration policy philanthropy; those who are passionate about migration policy per se should consider this evidence that the space is still uncrowded. We probably shouldn’t update much on the subject of free migration itself.

Open Borders Conference 2021 review

I recently attended the 2021 fully remote Open Borders Conference as I had announced when I bought the ticket. Last year I had attended 2020’s fully remote Open Borders Conference as well. In both years, the conference was quite engaging and informative. This post has an in-depth review of the 2021 conference, along with some notes on how it differs from 2020’s. I didn’t attend the in-person conferences of 2018 or 2019, primarily because attending them would have necessitated time and money costs of travel that were difficult for me to shoulder at the time.

This post goes into a lot of detail on several aspects of the conference. Although I don’t have a direct connection with the conference, I have network connections with the conference organizers and some of the participants; the key connections are described here. I’ll let the reader judge how this might color my views.

I cover several topics in this post:

  • Relevance and diversity of topics within the range of relevant topics: Both 2020 and 2021 scored reasonably well; 2020 had more content overall, but I skipped some of it that seemed less relevant. 2021 had less overall content but a larger proportion of it seemed relevant.
  • Ideological mix of participants and presentation of different ideologies: While the dominant perspective was significantly-left-of-center, there was some balance coming from libertarians as well as more mainstream viewpoints.
  • Quality of discussion and debate: I tended to find presenters and panelists who were more ideologically aligned with me to be pretty good. For others, I felt it was a mixed bag. However, one area that I would have liked to see more of was spirited debate on points of difference between participants (I felt that the 2020 Conference had more of this). However, I also see the case for greater harmony and less conflict in order to create a more positive experience.
  • Accessibility of the conference: very good for both 2020 and 2021! Forms of accessibility that were helpful to me: remote, held at a convenient time, low cost, videos available after the fact on YouTube (with closed captions). Forms of accessibility that were not helpful to me but might be for other participants: Spanish and American Sign Language (ASL) interpretation.
  • Value of attending the conference versus just watching the videos later: I attended the conference mostly because the timing was already convenient for me, and because I thought I might want to ask questions. I ended up not asking questions. Practically speaking, I think you don’t lose a lot by watching later, and if the timing of the conference doesn’t work for you then I suggest watching later.
  • General thoughts on the value of the conference and how it “fits in” with the advocacy and debate around open borders: These are more general musings on the conference not directly relevant to the decision of whether to attend or not.

I do not include review of individual videos of the 2020 or 2021 conference here (available in both English and Spanish, and for 2021, with ASL as well). I’m happy to do a post reviewing the individual videos if that turns out to be something people are interested in, but it’ll be a future post if so!

Relevance and diversity of topics within the range of relevant topics

There’s definitely an element of personal judgment here regarding what is and isn’t relevant to the open borders topic. So what I consider less-relevant to open borders, another person may consider more relevant. Therefore I encourage people to form their own judgments by looking at the conference programs (2020, 2021) rather than just relying on my word.

Overall, I felt that the bulk of the conference in both 2020 and 2021 was quite relevant, while still covering a wide range of angles. Rather than just discussing the case for open borders in the abstract, many of the keynotes and panels related it to other contemporary issues such as political and economic crises, climate change, COVID-19, surveillance technology, and violence at the border. I feel that the proportion of relevance was higher in 2021, with the only event that I felt didn’t have enough relevance for me (and that I skipped most of) being Karma Chavez’s keynote speech; the parts that I didn’t skip seemed to talk about the public health response to HIV/AIDS.

Within the broad range of relevant topics, I feel like 2020 did a better job of representing and discussing a more diverse range of geographical contexts of borders; 2021 was more focused on the U.S., which might just be a reflection of the 2021 program being shorter and having less space.

Ideological mix of participants and presentation of different ideologies

Ideologically, the conferences in both years were dominated by a significantly-left-of-center perspective that sees borders as being deeply linked to the twin evils of racism, capitalism, and imperialism. A co-blogger highlighted that this differs from the center-left as seen in mainstream politics in the United States, that sees capitalism as the only broad alternative and argues about the details of government intervention. The aspect of the significantly-left-of-center views I want to highlight is not just that many conference participants held them, but that in many cases they treated these as background facts that didn’t need justifying. This spoke not just to their views but to their assumptions about shared context with the audience.

Key related ideas that betrayed the left-of-center sensibility included “race to the bottom” framings, talk about how capital is mobile and labor isn’t, and a central role to the culpability of countries such as the United States in creating the problems that led to people migrating (on that last point, see this excellent post by my co-blogger John Lee, that I largely endorse, that says that such “reparations”-based arguments shouldn’t be the main driver or justification in arguing for a policy of free movement).

However, there were alternative perspectives presented at the conferences in both years. Notably, in both years, there was one keynote of a decidedly libertarian persuasion (Shikha Dalmia in 2020, Ilya Somin in 2021). Libertarian representation was also found on at least one panel in each year: Alex Nowrasteh in 2020, Jason Brennan and Michelangelo Landgrave in 2021.

While the libertarian keynotes and panelists did not reject the role of racial ideas in closing the borders, they also highlighted that even Canadians — racially and culturally similar to Americans — had to deal with a lot of challenges to immigrate to the United States. This point was raised by Jason Brennan and later brought up again by Michelangelo Landgrave.

It’s probably the case that many of the libertarians on the panel hold fairly radical views even outside the border question (for instance, some may even be anarcho-capitalists). However, I felt that their presentation of ideas in the conference was very much targeted at folks starting from mainstream views, and in most cases the place it took them to was pretty close to the mainstream albeit with freedom of movement.

In addition, there was also some representation from others such as immigration lawyers and policy wonks (probably many of them left-of-center similar to what’s seen in mainstream US politics) who provided a more practical perspective on how things worked.

Quality of discussion and debate

Overall, I felt (for 2021) that the individual keynotes and panelists were strong. The libertarian keynotes (Shikha Dalmia in 2020, Ilya Somin in 2021) seemed particularly good, though for the most part quite familiar to me. I liked several of the panelists.

Some of the non-libertarian keynotes were difficult for me to follow; a few in particular used a lot of academic jargon where (a) I didn’t connect with the jargon either cognitively or emotionally, and (b) I probably didn’t agree with the broader point anyway. I skipped one of the keynotes in 2020 (Harsha Walia — though I did end up watching parts of it on YouTube later) where I suffered from this issue, and skipped a large part of the 2021 keynote by Karma Chavez. For the 2020 keynote by Samah Sisay, while I did face this challenge somewhat, I still found it worthwhile to listen to, probably mainly because it didn’t feel too heavily like academic jargon.

I faced less of this sort of challenge in the panels, even when the panelists had very different views than I did. Part of this could be because of the relatively shorter sizes of each delivery by a panelist, and the more Q&A-centric nature of the panel, which forced the panelists to stay synced up with each other and the audience in terms of the topics of conversation and jargon used.

For the most part, however, I didn’t get a sense that there was as much meaningful interchange of ideas, or any debate or discussion that involved challenging or hashing things out. This was also my general impression for 2020, but overall I did feel that that year had had a bit more spirited debate; for instance the How National Emergencies Shape Immigration Policy debate.

But spirited debate can cut both ways: it can be illuminating for participants and the audience, but it can also be fatiguing. People may want to create a sense of harmony and generate good memories, and so I’m not sure whether to think of the lack of spirited debate as a plus. I did feel that there was some moderate pushback from panelists to implicit assumptions in questions, so it wasn’t complete avoidance of debate.

Accessibility of the conference

I use the term “accessibility” in a broader sense than the narrow technical use of the term that is often focused on populations with disabilities or access issues. Rather, I’m also thinking about making it easier to access for ordinary people.

Several things about the conference stood out as improving accessibility in ways that helped me:

  • Fully remote: Despite being interested in the material, I had not attended the 2018 and 2019 conference, partly because they were held far from where I lived, and the time and money cost of travel and possibly overnight remote stay did not seem worthwhile to me. The fully remote nature of the 2020 and 2021 conference made them economical for me to attend: there was no financial or time overhead of travel, so the only time cost was the time cost of actually attending the conference events. Moreover, as an attendee who did not have any presenting duties, I was able to multiplex the majority of this “attending” time with personal chores including eating and doing weekend cooking. The marginal time cost was therefore very little (probably less to actually attend the conference than to write this post!).
  • Convenient timing: The 2021 conference was on Saturday, November 6, 2021, with hours were from 10 AM to 6 PM Eastern Time, which translated to 7 AM to 3 PM Pacific Time (my timezone). A Saturday date was convenient for me because I’m off from work and don’t have any specific time commitments; the hours too were reasonable (7 AM would be a bit early if I were presenting, but as somebody just tuning in it’s not a problem). The conference was on a Saturday (November 21) last year as well, but the time range last year was longer: 8:45 AM to 8:30 PM Eastern Time, translating to 5:45 AM to 5:30 PM Pacific Time, which made it a bit more challenging to attend in full but I could still attend a large portion of it. Thanks to the generally convenient date and timing, I was able to multiplex large parts of attending the conference with food preparation and eating, helping to reduce the additional time spent on the conference. NOTE: The selection of timing works well not just for my time zone, but for a wide range of time zones in Europe and the Americas; however, it doesn’t work great for people in Asia. Still, at least it’s outside the work week for pretty much all locales. Last year’s conference was in that sense a little better for people in Asia (and also in Europe) as the early events were convenient for Europe and somewhat accessible time-wise for Asia.
  • Low cost: I paid the $15 standard registration cost, that seems reasonable for this conference (particularly since there is no additional cost overhead of travel, eating out, etc. that would be incurred even for an in-person conference in my geographical area). More low-cost options were also available (though I didn’t need them) and the videos are also made available on YouTube later — further reducing financial barriers.
  • Videos available after the fact on YouTube: The fact that the videos would be made available later on YouTube made me feel less stressed about catching the entirety of the conference in real time — I knew I could catch up later on any part that I had missed. The YouTube versions of many of the videos have closed captions available, which further improves their utility. However, the quality of closed captions can be quite variable, and for many videos closed captions aren’t even available in the language the video is in.

I want to highlight one other way that the conference promoted accessibility, that was not personally important to me but I think could be valuable to other attendees:

  • Live interpretation available in Spanish and in American Sign Language (ASL): The live interpretation could help people who wanted to follow live but were more comfortable in Spanish, or had hearing disabilities. Looking at the early chats, at least a few users did want the ASL interpretation — so it is meeting a real human need. I can’t directly speak to the quality of the Spanish and ASL interpretation, but surface indications suggest that they were fairly good. It would have also been good to have live closed-captioning (this could have played a similar role as ASL interpretation but would also have been useful to me as a backup method of understanding what was being said, since I don’t know ASL). But it looks like Zoom doesn’t offer live closed-captioning out of the box (Google Meet, a Zoom competitor does, but the automated closed captioning isn’t great).

Value of attending the conference versus just watching the videos later

Unlike in-person conferences, the remote conference structure offers attendees very little by way of benefits in terms of casual interaction. Presumably this is something that could be addressed or fixed if a lot of attendees are keen on online socialization opportunity, but at least this incarnation of the conference didn’t have much of that.

For instance, the Zoom link for the conference was turned off outside of the official conference events (so the Zoom link didn’t work during the 15-minute breaks and the lunch break). So conference attendees couldn’t hang out and bump into each other the way they might during a real — or a different sort of virtual — conference.

The main benefit of attending live, other than more immediate access to the material, was the ability to ask questions in the Q&A and have some sort of chance that, if moderators picked the question, then one could hear the opinion of the speaker or panelists on the issue. I thought I might make use of this benefit, but ended up not doing so.

The remaining benefits are more soft and intangible, so I’ll list them out:

  • It’s a kinda-sorta immersive experience: There’s a sense of excitement and connection at attending the event in real time, despite the limited participation and interaction opportunities. It may also be easier for people to muster up the energy to attend the event in real time rather than add it to a backlog of videos to watch. The extent to which this matters would vary from person to person (compared to others, I tend to value this sort of thing less, so considering that it was a salient consideration for me suggests it probably would be for others too).
  • There’s some benefit to showing solidarity by purchasing a ticket: The marginal cost of an additional attendee is close to zero for the organizers, so getting the revenue from the extra ticket helps defray the conference costs. It also sends a stronger signal to the conference organizers that people are interested.

General thoughts on the value of the conference and how it “fits in” with the advocacy and debate around open borders

For the first few years after Open Borders: The Case (the site you’re reading right now) was started in 2012 (see our site story), it was one of the central places for online discussion around open borders. It was also the place where a lot of the people met who would later play a role in the Open Borders Conference.

The initial website/blog nature of the discussion, as well as the interests and leanings of the founding team, led to specific focus areas and communication styles, that appealed to some sorts of people.

Over time, the initial bloggers at Open Borders: The Case (including me) reduced our posting frequency, until the blog was getting just a few posts a year, and the site as a whole fell into a maintenance mode. It was no longer an active discussion hub.

As this was happening, one of the places that took over the role of a discussion hub to keep the open borders conversation moving forward was the Open Borders Conference. The shape and structure of the conference was different from that of a blog. Events all happen on one particular day of the year. Rather than a gentle stream of year-round activity, it’s a sharp burst of activity. The kinds of topics discussed are also different (for instance, much more left-wing!) and so is the format. As a result it’s able to reach out to and engage people in different ways.

I don’t think the conference and the website/blog are perfect substitutes, but I’m happy that as the website/blog suffered from a decline in discussion, the conference was able to keep a wide-ranging discussion going. It would be great to have a world where we have both, but I’m happy for what the conference has been able to accomplish.

All in all, I appreciate the efforts by the conference organizers, keynotes, and panelists, and hope that the Open Borders Conference can continue for more years to come!

High-skilled hacks: a (very) brief overview of H-1Bs (more to follow)

This post is part of my “high-skilled hacks” series, focused on immigration to the United States. The series explores various workarounds and caveats to immigration law that high-skilled workers and their employers have discovered in order to further their own interests, at the expense of the original intent of immigration law. Through the series, I try to argue that, although these hacks are an improvement over an alternative where only the basic immigration system existed, freer migration for all would be simpler, fairer, more efficient, and more just. The introductory post of the series is here.

My primary purpose here is to provide information rather than push a viewpoint. Nonetheless, I do not claim to hide my perspective. Rather, the purpose here is to present information as seen from a particular viewpoint (something akin to historical revisionism). Later posts in this series may include more focused discussion of my viewpoint, as I delve deeper into the regulations.

In this respect, my writing here differs from the many Wikipedia pages related to the H-1B that I have created, where I strive to stick to facts and avoid revealing viewpoints. These pages include: Labor Condition Application, Form I-129, Premium Processing Service, H-1B-dependent employer, public access file, American Competitiveness and Workforce Improvement Act (ACWIA), American Competitiveness in the 21st Century Act, H-1B Visa Reform Act of 2004, and Employ American Workers Act. For full disclosure, I also paid for the creation of the pages on H-1A visa and H-1C visa.

The following topics related to the H-1B visa are covered in this post.

  • Steps to getting started in H-1B status. (more)
  • Relationship, similarity and differences between the H-1B and permanent immigration. (more)
  • Key stages in the legislative history of the H-1B. (more)
  • The H-1B annual cycle and cap. This is a very brief overview of the mechanics of the status. Workarounds, such as the use of Optional Practical Training and the use of other work visas as a temporary measure, are discussed. (more)
  • Comparing the stated purpose and real use of the H-1B program. Once again, this is a brief summary that will be elaborated on in future posts. (more)
  • How the H-1B compares with other options: L-1, TN-1, O-1, and H-2B (to name the most salient alternatives). (more)

The following are not covered in this post and will be the subject of future posts.

  • The role of H-1B1 and E-3, and their effects on the market of technology workers from Singapore, Chile, and Australia in the United States.
  • A deeper look at the different occupations, intended employment areas, and countries of origin for users of the H-1B program.
  • A full analysis of the educational credentialism in the H-1B system, contrasted with other temporary and permanent immigration categories. I discussed some of these points in an Open Borders Action Group post, that Bryan Capan reblogged on EconLog. But I intend to cover it in more depth.
  • A better overview of exactly how the H-1B lottery works. Basically, understanding what your chances are based on whether you have or don’t have a master’s degree.
  • The role of the H-4, the status for dependents of H-1B holders, and how the two H statuses interact.
  • Comparison with analogous statuses in other countries, i.e., with other generic temporary skilled work visa categories.
  • What the whole H-1B application process means for people who aspire to having a job (temporarily or permanently) in the United States, particularly people who are not from any of the treaty countries (Canada, Mexico, Australia, Singapore, and Chile). Note that the current post touches only briefly on the issue from the perspective of a job-seeker.
  • A detailed discussion of the Labor Condition Application and U.S. Department of Labor investigative authority. This will included discussion of H-1B-dependence, its current and past prevalence, and its implications for the mid-level tech workers who account for about 50% of H-1B use.
  • A full discussion of various criticisms leveled at the H-1B program, by people such as Norm Matloff, Michelle Malkin and John Miano in their book Sold Out, and labor unions and labor-advocacy think tanks such as the Economic Policy Institute (see for instance here). Either in the same post or in a different one, I will also look at the pro-H-1B rhetoric used by different groups ranging from immigration lawyers to liberal think tanks and advocacy centers to libertarian think tanks.

The list of things I don’t cover here also includes other stuff I haven’t yet even realized is important enough to be discussed! But the above list is already pretty daunting.

The H-1B: the most important work visa

One of the most important sources of high-skilled migration to the United States is the H-1B visa. The H-1B is significant in at least a few ways:

  • For many high-skilled workers who enter the United States for work, the H-1B is how they are able to first enter.
  • Even those who enter for work in other ways (such as the TN-visa, L-visa, or OPT on F student status) often transition to the H-1B when they get the opportunity.
  • While many who come to the US on H-1B status eventually leave, many others settle permanently in the United States. Some do so by applying for permanent residency through one of the EB visas (which has a long wait time, and the H-1B allows them to work as they wait for it to come through). Others find true love among US citizens and permanent residents, marry them, and transition to lawful permanent residency through the Immediate Relative or Family based quotas.
  • Those on the H-1B who do go back to their home countries often play a key role in facilitating technology transfer and outsourcing and the international spread of technology.

Later, we’ll talk more about why so many people want or need to switch from other temporary work statuses to the H-1B.

There are two other close cousins of the H-1B: the H-1B1 (for Singapore and Chile) and the E-3 (for Australia). We will not discuss these variants in the current post, but will review them later.

Steps to getting into H-1B status

The following is the sequence of steps for getting H-1B status.

  • First, the employer files a Labor Condition Application with the U. S. Department of Labor, showing that the worker to be hired will be paid the same wage (or a higher wage) compared to U.S. workers within the company doing the same job, as well as others in the geographic area. The LCA has other stipulations regarding working conditions, strikes and lockouts (most of which are irrelevant for most employers). Note that (with the exception of the case of H-1B-dependent employers or employers who have been found to be willful violators) the LCA does not need to assert that no qualified United States worker is available! UPDATE: David Bier has a blog post on the Congressional discussions around whether to impose the requirement, and the ultimate decision not to do so.
  • With an approved LCA and other supporting documentation, the employer files Form I-129 with the United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security. Approval of this form gives the employee permission to start employment under the employer at or after the start date of employment, and until the end date of employment. The employee must be with the employer for the entire duration of H-1B: even a day of unemployment nullifies H-1B status. The Form I-129 can be filed at most six months in advance. For cap-subject applications, prior to considering a H-1B application, USCIS makes sure that it has space in its annual quota. Since the quotas start every fiscal year (October 1), most H-1B applications occur in the beginning of April and set a start date of October 1.
  • With an approved Form I-129, the employee can start work with the employer if present in the United States already (in other words, Form I-129 also allows for change of non-immigrant status; there is no need to file a separate Form I-539). However, if not present in the United States, the employee needs to obtain a H-1B visa from a consular officer at a United States consulate. Consulates are under the U.S. Department of State. After obtaining a visa, the person may enter the United States at most 10 days in advance of the start date of the job. At the port of entry (the airport for people flying in), the person receives a Form I-94 from the U.S. Customs and Border Protection Office of Field Operations officer (CBP is under the Department of Homeland Security).

H-1B and “permanent” immigration

There is a lot of confusion about the role played by the H-1B and its relation to Lawful Permanent Resident status (getting a Green Card). H-1B status is a dual-intent non-immigrant status. Let’s unpack that. Here, “non-immigrant” means that the status is a temporary status to be in the United States (in this case, for work) and does not provide any automatic path to permanent residency. The “dual-intent” part says that it is okay for a person on H-1B to also be trying to transition to a Lawful Permanent Resident (LPR) status.

There are two main routes to LPR status (aka “immigrant” status): Employment-based (EB) and family-based (this includes Immediate Relative (IR) and Family (F) statuses). The initial USCIS form for EB(-1,2,3) statuses (the analogue of Form I-129) is Form I-140 and that for F and IR statuses is Form I-130. (These are not the only routes; there are Diversity Immigrant Visas, refugees and various special immigrant categories, and the EB-5 category for early Bitcoin Evolution investors and entrepreneurs; but let’s set all those aside since most of them aren’t very relevant to the sort of person who’s doing or considering a H-1B).

One key difference between LPR status and temporary statuses like H-1B is that, once LPR status is obtained, it is no longer necessary to maintain the connection (whether employment-based or family-based) that was the basis of getting the status.

In other words, once you have a green card, you can quit the job or divorce the spouse that helped you get the green card. LPR status can be revoked for various reasons (such as committing crimes or aggravated felonies, or being outside the United States for too long), but maintaining the original reason for acquiring the status is not required. LPR statuses also offer a path to citizenship: somebody who has been a LPR for five or more years can file Form N-400 for naturalization.

Another key difference between LPR status and temporary statuses is the complexity and time taken for the application process. There are actually two aspects to the time taken for this status, that operate in parallel (so the longer of these is the constraining factor). These are:

  • The processing time for applications: Processing times for Form I-140 applications can be quite long, varying from 5 months to a year. In addition, some EB categories require a separate process called PERM labor certification prior to filing Form I-140. PERM labor certification is similar to the LCA, but with much more onerous requirements, and can take several months to obtain. Essentially, the goal of PERM labor certification is to establish that the worker has truly unique skills and the company is unable to hire a qualified United States worker with those skills.
  • Independent of this processing time is the time taken for a visa number to be available. Permanent immigration is controlled by a complicated system of quotas introduced by the Immigration and Nationality Act of 1965, that controls the number of permanent immigration slots that are released every year by the preference category as well as the country of chargeability. The queues for these are managed by the Visa Reporting and Control Division and published in the Visa Bulletin. Particularly for large countries like India, China, and Mexico, these categories can be backlogged by over a decade. Note that the potentially indefinite backlogs for “permanent” migration are consistent with its meaning: whereas with temporary worker needs, it does not make sense to have the application queued for several years, this might make sense for a permanent worker or a family member.

The reason the total time taken is the maximum rather than the sum of these two wait times is that the priority date (that determines an application’s position in queue) is taken as the date the Form I-140 was received (and for applications with labor certification, the date the labor certification petition was received). (Note that the way the caps operate for EB status is different from the way they operate for H-1B: the H-1B quota is reset annually, and applied at the time Form I-129 is adjudicated, whereas the quota for EB status can extend indefinitely and therefore there is no upper limit on how far the backlog can grow).

In addition to the max of these two, there could be some processing time for the Form I-485 (Adjustment of Status application) if the employee is already in the United States in H-1B or another status, or to get an immigrant visa, if the employee is outside the United States. Generally, the processing for the Form I-485 or immigrant visa begins a little before the applicant’s priority date becomes current, so that the two finish in parallel.

The upshot of this is that getting an employee on an immigrant status is a process that can take somewhere between several months (if the employee happens to be from a country that doesn’t have huge backlogs) to decades (if the employee is from a country with huge backlogs). Regardless of how brilliant the employee is, therefore, this is not a very effective solution for most employers, who are operating at much shorter timescales with respect to their hiring needs. For this reason, even employers who are interested in sponsoring employees for a green card may initially hire them on a H-1B so that the employee can start working for them while the steps to transition to immigrant status are ongoing. This relationship has been implicitly acknowledged with the American Competitiveness in the 21st Century Act (AC21), where people with long-pending Form I-140 or Form I-485 applications can extend their H-1B while waiting for it to go through.

When the EB category and the current incarnation of H-1B were first introduced in 1990, the EB category started off without backlogs. Hence, those employers who sought workers on a more permanent basis went the EB route, and those who wanted temporary work went the H-1B route. As the EB category started developing backlogs, and demand for high-tech workers increased overall, the pressure on the H-1B status increased. Since it is extremely difficult to adjust the overall rate of permanent immigration (since that involves fundamental changes to the Immigration and Nationality Act), the EB category will likely continue to be severely limited, and the H-1B will continue to be the first step for many workers, including those who qualify for EB status.

Key pieces of legislation that have shaped the H-1B

H visas were originally introduced with the Immigration and Nationality Act of 1952, with a H-1 for skilled workers and a H-2 for unskilled workers. The Immigration Nursing Relief Act of 1989 (text) created a separate H-1A visa for nurses, and renamed the existing H-1 program to the H-1B program; however, the substantive structural changes to H-1B would occur with the Immigration Act of 1990 (described below). The H-1A would later be replaced by a H-1C visa, a status that was retired in 2009 and is no longer granted.

For more on the early history of the H-1 visa, prior to its splitting into the H-1A and H-1B, see the post A Legislative History of H-1B and Other Immigrant Work Visas by a blogger critical of the H-1B program.

Below are the key legislations affecting the H-1B:

  • Immigration Act of 1990 (IMMACT), passed by the 101st United States Congress and signed into law by President George H. W. Bush, introduced the basic rules of the H-1B: a three-year visa that could be extended another three years, an annual cap of 65,000, a Labor Condition Application with rules regarding prevailing wages, and a concept of Specialty Occupation. Surprisingly, every phrase of the preceding sentence continues to describe the H-1B regime today, even though, in practice, a number of hacks have led to far more H-1Bs effectively being available. But more on that later. Note that since this Act made it through the first stages of its legislative process in 1989, it is sometimes said that the H-1B was introduced in 1989, but its actual implementation (“going live”) happened only in 1990.
  • American Competitiveness and Workforce Improvement Act (ACWIA), passed by the 105th United States Congress and signed into law by President Bill Clinton on October 21, 1998, offered temporary reprieves from the caps, but otherwise was a victory for restrictionists and advocates of labor. Specifically, it introduced the concept of H-1B-dependence and imposed additional LCA attestation requirements (around displacement, secondary displacement, and recruitment and hiring) for H-1B-dependent employers and willful violators. With that said, there were discussions of imposing the requirement on all employers, but these were successfully defeated. For more, see Alex Nowrasteh’s post.
  • American Competitiveness in the 21st Century Act (AC21), passed by the 106th United States Congress and signed into law by President Bill Clinton on October 17, 2000, extended some temporary reprieves and introduced a number of hacks that effectively expanded H-1B availability, while offering some minor sops to the other side. These hacks will be discussed later in the piece.
  • H-1B Visa Reform Act of 2004, part of the Consolidated Appropriations Act, 2005. The main relevant provision here was to add 20,000 slots for people with graduate degrees every year. There were also some changes (in the direction of tightening, but also toward more standardization) to the process for the LCA.
  • The H-1B1 (for Singapore and Chile) and E-3 (for Australia) were created as a result of free trade agreements that happened between 2003 and 2005: Singapore–United States Free Trade Agreement (ratified 2003, effective January 1, 2004), Chile-United States Free Trade Agreement (ratified 2003, effective January 1, 2004), and Australia–United States Free Trade Agreement (ratified 2004, effective Janaury 1, 2005).

Since 2004, there does not appear to have been any new legislation regarding H-1Bs, with a few minor exceptions related to additional fees and attestations:

  • Employ American Workers Act (signed into law in February 2009 with a two-year sunset provision, not renewed): This basically treated any company that was a recipient of TARP and Federal Reserve Act Section 13 funds as a H-1B-dependent employer for the purposes of the LCA. These employers needed to make the additional attestations required. Once a company had paid back all the funds they were no longer subject to these requirements.
  • Public Law 111-230, that imposed an additional fee of $2,000 for H-1B petitions (Form I-129) between August 14, 2010 and September 30, 2014 (extended by Public Law 111-347 to September 30, 2015), in cases where employers had more than 50 H-1B workers and more than 50% of their workforce was H-1B workers. These filters were stricter than those for classifying an employer as H-1B-dependent. The fee has expired.
  • Public Law 114-113, that imposes an additional fee of $4,000 for H-1B petitions (Form I-129) filed between December 18, 2015 and September 30, 2025. This effectively doubled the Public Law 111-230 fees.

Loosely speaking, of the 1990-2015 H-1B regime, the latter half has been legislation-free. Changes have happened, but mostly at an administrative and executive level, with the United States Citizenship and Immigration Services (USCIS) issuing additional guidance on changing interpretations of existing provisions. This extreme stability is not indicative of anybody being satisfied with the status quo — there is general consensus within the Beltway that some liberalization in H-1Bs would be desirable. Rather, as I discussed in my introductory post, it’s a phenomenon of gridlock: high-skilled immigration is treated as a deal-sweetener that different sides want to tack on to their preferred bills to make them more palatable, but isn’t important enough or urgent enough for anybody to pass immediately.

The history of temporary migration of skilled workers prior to the H-1B is important to understand, and we’ll probably cover it in our origins of immigration restrictions series. However, for reasons of space and focus, we’ll restrict discussion here to the H-1B as it started in 1990.

The H-1B annual cycle, lottery, and workarounds

My overview here is not really intended as either a definitive description of law or an action guide. For a more definitive and legally accurate description, see the USCIS page about the H-1B cap season for Fiscal Year 2017. For something geared more to potential applicants, see the RedBus2US “All about H1B Visa Cap” guide.

There are two aspects of the H-1B that make it a fickle tool for employers, over and above the legal fees and administrative overhead involved.

First, the annual cycle. The H-1B cap is applied separately for each fiscal year. The cap applies only for the worker’s first H-1B at an institution that is not a nonprofit research institution (in other words, it doesn’t affect H-1Bs issued to professors and postdocs in academia). It also does not apply to workers transferring jobs, or extending beyond the first three years to another three years (or possibly more if the worker has a pending I-140 or I-485). It does apply for workers who leave after a H-1B is over and then return for a new H-1B.

The annual cap is set to 65,000 (of which 6,800 are set aside for the H-1B1, but unused H-1B1s are returned to the general pool the next year, so effectively the annual number of slots is pretty close). There are an additional 20,000 slots for people holding master’s degrees from accredited United States universities. That’s a total of 85,000. There are approximately 50,000 successful applications from nonprofit research institutions. A total of about 135,000 new H-1B Form I-129s are approved annually, 85,000 of them cap-subject.

The year for which the H-1B caps apply annually is the Fiscal Year (FY) and it starts October 1 of the preceding calendar year (for instance, FY 2017 starts October 1, 2016). Form I-129 petitions can be submitted at most six months in advance of the start date of employment. Thus, all cap-subject applications need to be made around April 1, with a start date of around October 1. The USCIS generally stops accepting applications after the first week of April. Note: While rereading, I realized that there have been many years, particularly those in the aftermath of the 2007–08 recession, when the quota has taken much longer than one week to be filled. However, it now appears to fairly consistently get exhausted in the first week. My guess is that the only thing that would make the quota extend out much further would be either a significant U.S. recession or other significant changes to the world economy. If you’re interested in data on what the cap was in different years and when it was reached, check out these two links on RedBus2US: H1B Visa Total Cap Stats from 1990 to 2017, Trend Plot until 2017 (information on the size of the cap and how it has varied) and H1B Visa Cap Reach Dates History 2000 to 2017 – Graph – USCIS Data (information on the date the cap was reached). The information in the links is all based on data available on the USCIS website but presented in an easier-to-digest format.

Of the 200,000 or so applications received, it runs two lotteries: one lottery picks 20,000 of the master’s degree applicants, and the second picks 65,000 from everybody in the pool who failed to make it to the first 20,000 (so master’s degree holders get effectively two shots, others get only one). [Slight note: USCIS conducts the lottery before adjudicating the petitions. So it actually gets slightly more petitions through the lottery than the annual cap. Essentially, it budgets how many to select in the lottery based on its estimated rejection rate. If it undershoots, it will announce that there are slots remaining, and accept more applications.]

There are some obvious problems with practical usability of this sort of system. An employer who realizes in December the need to hire a worker needs to wait until April to apply, and wait until October for the worker to start. Even worse, an employer who finds a worker to hire in June needs to wait till October of next year to have the worker actually start. And that’s ignoring the issue of the low chances in the lottery. For workers without master’s degrees from the United States, the lottery chances are less than 50% (more precise number-crunching in a later post, though naive estimates, such as those used in this San Francisco Chronicle piece, place the number at 25%). So in expectation the employer may have to wait till October of the year after next.

Admittedly, this isn’t as bad as the long wait times (both processing times and the queue wait times on account of visa number availability) for the EB category. However, it’s still not a very practical time horizon except for large companies that can afford to wait, or multinationals that have carefully built a business model to cope with the regulations. Multinationals (whether it’s high-tech companies like Google or mid-level companies like Infosys) that are already employing the person in another country and want to move the person to the US office can afford to wait: the person stays employed in the office abroad, and at the appropriate time, moves to the US. Note that multinationals that do this may also be able to use L visas in some cases, thereby avoiding the H-1B’s annual cycle. Small companies that are based only in the US, on the other hand, often find it harder to afford these time horizons.

One workaround is the use of other more temporary statuses to start employment and then transition to H-1B when one makes it through the lottery. One example I previously discussed was the use of Optional Practical Training. A just-graduated student can start working for an employer on OPT, and then transition to the H-1B status next year. The OPT is 12 months long, which is sometimes not enough to meet the H-1B’s annual cycle (for instance, for somebody who starts work in July) so the OPT has a cap gap extension for people with pending Form I-129 applications in cap-subject categories. There is also a 24-month STEM extension that can be used by a person with a STEM degree. With this STEM extension, plus the H-1B cap gap extension, it is possible to get three shots at the H-1B lottery while working using the OPT. For those with master’s or Ph.D. STEM degrees from United States universities, therefore, the combination of the STEM extension and the H-1B masters quota makes it quite likely that the person will be able to eventually secure the H-1B if the person gets an employer willing to sponsor him or her.

Other temporary and more restrictive visas people might use include the TN-1 (Canada), TN-2 (Mexico), and O-1 (all countries). These are discussed as full-fledged alternatives to the H-1B in a later section, but they are also useful as complements. The TN-1, in particular, is useful because it can be extended indefinitely in three-year increments, allowing a person to keep trying his or her chances at the H-1B lottery while continuing to work. An initial O-1 visa is granted for up to three years, also giving enough time to get a few shots at the H-1B lottery while working.

Note that the role OPT plays with relation to H-1B is similar to the role H-1B plays with respect to EB: as a potential temporary stop-gap while the other, slower status is still in process.

Interestingly, one of the ways that smaller companies end up hiring H-1B workers (in addition to the OPT route) is people who change jobs from big companies. Essentially, you start your H-1B at a big company, then subsequently move to a startup. The American Competitiveness in the 21st Century Act (AC21) exempts such cases from the H-1B cap, therefore avoiding both the lottery and waiting for the annual cycle (note, however, that the person does not get the full six years for the new H-1B but only whatever is still remaining of it). As it is, many people start out at a big company to make some money and get some experience before moving to a smaller company. For foreign workers, H-1B regulations offer yet another reason for this kind of trajectory.

The stated purpose, and real uses, of the H-1B

The stated goal of the H-1B is to temporarily employ foreigners when the supply of skilled workers in the United States falls short of employer needs. In other words, the H-1B is intended as a stop-gap measure to address temporary labor shortages for skilled workers. It is not intended to be a path to permanent migration (for that, there is the EB category, discussed earlier). It is also not meant to be restricted to cases of truly outstanding people (for whom, in addition to the EB-1 category, there is the O-1 category for temporary workers). It is also not intended as a means for technology transfer, i.e., the goal of the H-1B is not to train people for a few years in the United States so that they can return to their home country with increased productivity and better practices. Rather, it is meant to address cases where employers have a temporary need for additional workers and can’t find people in the United States fast enough, so they hire people from abroad briefly, and then once the supply of workers in the U.S. catches up, they replace the foreign workers with the now-appropriately-qualified U.S. workers. This stated goal of the H-1B is the justification for a fee on H-1B applications (of $750 or $1500 depending on the employer’s size) whose funds are used for improving science education and workforce training in the United States.

In the real world, employers don’t use the H-1B in that way. They do not “diligently search for a US worker and only reluctantly hire a foreigner.” Rather, the significant legal fees and loopholes around the H-1B lead to two broad kinds of use cases: multinationals that have built a business around arbitraging different strength profiles, income differences, and skillset differences between countries, as well as companies with enough deep need for specific skilled workers that they are willing to incur additional legal fees and the tyranny of the H-1B’s annual cycle to get a particular worker that they want.

Let’s examine these two use cases in a little more detail:

  • The most quantitatively significant (accounting for about half of H-1B use) is mid-level technology employees by large multinational technology/software firms to which other firms outsource their work. The Economic Policy Institute (a think tank that advocates the interests of labor, stereotypically construed) notes that the top ten users of the H-1B program, that account for half of H-1B use in the United States, all fit in this framework: Cognizant, Tata, Infosys, Wipro, Accenture, HCL America, Tech Mahindra SATYAM, IBM & IBM India, Larsen & Toubro, and Deloitte. Many of these have either their roots or significant operations in India, and that is a big part of how half of new H-1Bs are granted to people from India. Most of these workers don’t go on to transition to LPR status. Partly, this is because they don’t qualify for the higher bar set for EB status. Their short-term employment in the US office allows them to take back relevant technology and skills to their home countries, and, of course, to save money for their personal use. (For more information on the distribution of H-1B visas and approvals by country, industry, and employer, see the Wikipedia page section).
  • The other use case is high-skilled technology firms in sectors (programming, banking, quantitative finance) that need to hire workers. There are two main ways that these companies connect with the H-1B workers to fill these positions: some of the workers completed higher education in the United States and get on the job market at the end of their higher education. Others may be hired by the company at an office in another country and then transferred to the United States office (for instance, Google or Microsoft might hire a worker in Bangalore or Hyderabad, and when the worker later gets promoted or moved to a division in the company that is only at the company’s main headquarters in Mountain View or Redmond, sponsors a H-1B for the worker). The business model of the hiring companies is not built around the workers returning to their home countries; in fact, the hope is that the workers will be able to stay in the United States for as long as necessary. Many of these employees may later be sponsored for EB status if they are considered sufficiently valuable to the company. A good summary of this use case, in contrast with the preceding one, can be found on LinkedIn.

While the first use case has been decried (by the EPI as linked above, and by others) for the way technology transfer contributes to more offshoring of jobs, the second use case has been decried for creating more permanent competition in the market for skilled labor, leading to lower wages and reduced incentives for Americans to enter these sectors. With that said, not all critics of H-1B programs are critical of both kinds of use cases. Some people, like current U.S. Republican Presidential primary leader Donald Trump as well as Y Combinator co-founder Paul Graham, are critical of the first use case of the H-1B but supportive of the second. UPDATE: At the time I wrote this post, Trump hadn’t put out a formal set of immigration policies, so I was mostly going by remarks he had made. The most recent policies he has put out seem to suggest that he is opposed to both types of uses of the H-1B. For more, see David Bier’s post on the subject.

How does the H-1B compare with other options?

There are a number of alternatives to the H-1B, but none of them are good enough to render the H-1B unimportant. What the alternatives do help with is, in many cases, reducing the “pressure” on H-1B somewhat. So if you’re a H-1B applicant, you might want to thank the many other alternative visas for taking some of the competition out. A good place to check out the set of available work visas that make sense for each occupation is US Work Visas: Which One Shoud I Apply For? on VisaPro.

  • The L visas are visas available to multinationals that allow them to transfer people working for the same company but in another country.Advantages: Fewer restrictions on the type of occupation and educational qualifications, longer period (7 for the L-1A and 5 for the L-1B, as opposed to 3 + 3 for the H-1B.

    Disadvantages: Only available to multinational companies, which excludes many technology companies, particularly the smaller ones.

    Microsoft has been known to use L visas creatively: it first gets people to Canada on a work visa, whereby they can visit the Redmond office (in the United States, close to Seattle, Washington close to the Canadian border) with relative ease, and eventually transfers them over to the Redmond office.

    You can see more detailed comparisons here and here.

  • The TN-1 status for Canadians, and a similar but somewhat more restrictive TN-2 status for Mexicans, allows people from these countries to work in the US in renewable 3-year increments.Advantages: The TN-1 for Canadians is uncapped, and can in principle be renewed many many times.

    Disadvantages: The set of occupations that are eligible for TN-1 is narrower than for H-1B. For instance, Computer Systems Analysts are TN-eligible, but mere computer programmers aren’t. The application and renewal process for TN-1 is also less standardized, and even though multiple renewals are possible in principle, renewals are often rejected for unclear reasons.

    You can see more detailed comparisons here and here.

  • O (“Outstanding”) visas are available to “aliens of extraordinary ability in the sciences, arts (including television and motion pictures), business or athletics.”Advantages: No caps, unlike the annual 65,000 visa cap for H-1B. Also, students and exchange visitors who came to the United States on J status can get an O-1 visa but cannot apply for the H or L visa without completing the 2-year foreign residence requirement.

    Disadvantages: More documentation and proof needed of extraordinary ability, with a particular focus on credentialism and formal academic accomplishment. This makes many people ineligible. Many star programmers, who might command several hundred thousand dollars in salary, may not be able to qualify for this visa.

    You can see more detailed comparisons here and here.

  • H-2B visas: The H-2B is a temporary visa for low-skilled work. As best as I can understand the law, there is no restriction on using the H-2B for high-skilled work. However, also as best as I can make out, it is quite rare to use the H-2B for any job where the H-1B could be used. An example of a case where there may be genuine ambiguity regarding whether the H-1B or H-2B is most appropriate is the case of a chef or cook. Specialty chefs may be able to get H-1Bs, but “food preparation worker” is a typical H-2B occupation.Advantages: No need to file a Labor Condition Application. Suitable in cases where wages are lower. No need to demonstrate educational qualifications. Lower filing fees, and savings can be significant if hiring large numbers of workers together. Also, instead of an annual cap, there is a twice-a-year cap.

    Disadvantages: Additional work is needed to obtain a H-2B Temporary Labor Certification, which in turn requires posting a job order publicly with a State Workforce Agency. The application process can be initiated at most 75 days in advance, making it harder to plan ahead. Premium Processing is currently disabled. The H-2B is made initially available for at most one year, and can be extended in increments of at most a year, to a maximum duration of three years. This is less than the 3 + 3 for the H-1B. Also, whereas the H-1B can be extended while employment-based applications for lawful permanent resident (either the Form I-140 or the Adjustment of Status) are pending, there is no such provision for H-2B.

For better or worse, the majority of high-skilled immigrant workers and companies sponsoring them use the H-1B despite the uncertainty of the application process, largely because it has a relatively large quota, relatively low burdens of proof, and accessibility to people who don’t have a lot of bureaucratically determined academic credentials as well as to companies that aren’t multinationals with deep pockets.

PS: After drafting an initial version of this post, I Googled around for lists of common misconceptions related to the H-1B, and came across this article. I was pleased to see that the draft I had covered about half the myths directly, and alluded to the relevant material that addresses the remaining half. I also made some edits to add in more explicit mention of the material related to the myths I didn’t explicitly cover.

Full disclosure

  • I am currently working in H-1B status in the United States. I started work on this post while I was still in student status.
  • See the note at the beginning of the article on Wikipedia pages I created while researching for this post.

How did we get here? Chinese Exclusion Act buildup (1848-1872)

When co-blogger Chris Hendrix started off a series a couple of years ago on the origins of immigration restrictions, he fittingly began with the Chinese Exclusion Act (1882), looking at the arguments made for the act at the time. He examined them both the evidence available at the time and the evidence that has emerged since then. In a subsequent post in the series, I briefly examined the early years of the implementation of the Chinese Exclusion Act (1882-1910). While both these posts examined some aspects of the Chinese Exclusion Act in some detail, there is a lot about the history and aftermath of the Act that went unexplored.

Recently, I had the opportunity to create a number of Wikipedia pages on topics related to the Chinese Exclusion Act: Chae Chan Ping v. United States, Angell Treaty of 1880, Chy Lung v. Freeman, Fong Yue Ting v. United States, and others. As I worked on these pages, I familiarized myself more with the situation surrounding the Chinese Exclusion Act. I became more convinced that a more in-depth look at the Chinese Exclusion Act would help shed light on the modern border control regime.

I therefore intend to do at least three more posts on the subject. The current post will focus on the key developments and tug-of-wars that occurred until about 1872 (with passing mentions of trends that would continue into the late 1870s). A later post will discuss the more eventful years starting 1873. The year 1873 was marked by the Panic of 1873, the beginning of an economic downturn in the United States. The economic downturn was likely a contributing factor to increased anti-Chinese sentiment over the coming years, and key legislative and judicial developments related to immigration happened beginning 1875.

This post looks at the “keyhole solutions” used by state and local law enforcement in California before the federal government got on board with significantly restricting immigration.

Table of contents

Limitations of my analysis

Perhaps the biggest limiting factor to the quality of my analysis is the fact that such little data is maintained about that time period; in particular, about how ordinary people (both Chinese and the others in California) perceived the situation at the time. There is no Twitter, Tumblr, or Instagram to gauge public sentiment. There was no equivalent of Gallup polls. There were few newspapers and even those that existed don’t have all their archives available to peruse. Therefore, apart from actual legislative or judicial records, the main guidance present is various summaries provided by historians, who are in turn relying on observations penned by a few people, who may in turn have their own biases.

The lack of good resolution on who was thinking what leads to broad-brush generalizations in many parts of the text. I talk about the “Chinese” and “whites” but both groups were probably quite heterogeneous in terms of their habits, attitudes, beliefs about the other group, legislation they supported, etc. A more able historian with more time to research the issue and more space to devote to describing it would be able to pick nuances better. As such, please take any general statements I make about ethnic groups below with a large grain of salt: they are a third-hand summary of very incomplete data examined through possibly biased lenses.

How my thinking has evolved

Writing this post has led to some minor updates in my thinking. Here is a summary, that you can read without having to read the whole post.

  • As I had previously noted in “Why was immigration freer in 19th century USA?”, there were no restrictions on immigration till the late 19th century (the Page Act of 1875 being the first federal regulation, and the Chinese Exclusion Act was passed in 1882). Even then, the first restrictions applied only to Chinese immigration. But I now see that the sentiment to oppose and restrict migration existed far in advance of actual restrictions, and the reason that it took so long to restrict immigration was mostly the federal structure of governance combined with the poor connectivity of California with the rest of the United States.
  • This post also makes me more confident of observations I had made in my post on South-South migration and the natural state: despite the virulent and hostile response to Chinese immigration in California, migration remained freer and arguably closer to a state-of-nature than it does in the modern world.
  • My feelings on “keyhole solutions”, and in particular, on the question of their feasibility and stability, have evolved a bit. I am now more convinced that they are not a stable equilibrium that placates those favoring restrictions. One reason is that some keyhole solutions, particularly those involving taxes and tariffs, can hurt migrants so much that their subsequent impoverishment makes them look even worse on social indicators to the rest of the population (a point related to what co-blogger Nathan alluded to in his post the dark side of DRITI). Another is that keyhole solutions need to be extremely punitive (at risk of impoverishing migrants and making them look worse) to make a significant dent in migration trends, to the level that would satisfy those who seek restrictions. Keyhole solutions at an intermediate level can generate revenue for government and can address rationally calibrated concerns about immigration, but they can’t really solve the public’s general aversion to migration. Keyhole solutions might work better in quasi-democratic settings. In quasi-democratic settings, not every individual policy choice is debated. Rather, as long as the quasi-democratically elected leaders’ overall performance meets natives’ expectations, they buy into the policy package despite not liking parts of it. A country like Singapore might be an example.
  • Seeing the effects of migration isn’t guaranteed to drive one in favor of migration. In the case of events prior to the Chinese Exclusion Act, in fact, exposure to Chinese migrants led people to oppose it. California, which experienced the Chinese first, turned anti-migration first. Later, when the Chinese arrived in the Eastern cities, anti-Chinese sentiment also spread there. This does not mean that exposure to migrants always leads to anti-migration sentiment, nor does it mean that such anti-migration sentiment is factually grounded. Rather, we have to keep in mind existing narratives and biases that have been developed, in addition to the characteristics of migrants and natives, and results on sentiment towards migration could go in either direction. I don’t think nativist backlash is inevitable, but writing this post has led me to somewhat increase the importance I place on it as a force to reckon with.

First, they came for the Chinese

John’s post on tearing down Chesterton’s fence offers a good bird’s eye view of how immigration restrictions originated worldwide. While researching the subject, I noticed that in at least two other English-descended countries (Canada and Australia) the first significant immigration regulations appear to have been explicitly targeted at the Chinese, as I noted in an Open Borders Action Group post.

The situation in Australia closely paralleled the situation in California. In both cases, large numbers of Chinese moved to the area around 1850 in search of gold. In both cases, resistance to Chinese started off with native miners and labor unions of “natives” (i.e., whites, rather than the indigenous population), but gradually spread to the rest of society. Continue reading “How did we get here? Chinese Exclusion Act buildup (1848-1872)” »