All posts by Stuart Anderson

Stuart Anderson is the author of the book Immigration (Greenwood, 2010) and a researcher on trade and immigration issues. From August 2001 to January 2003, Stuart served as Executive Associate Commissioner for Policy and Planning and Counselor to the Commissioner at the Immigration and Naturalization Service. Before that he spent four and a half years on Capitol Hill on the Senate Immigration Subcommittee, first for Senator Spencer Abraham and then as Staff Director of the subcommittee for Senator Sam Brownback. Stuart has published articles in the Wall Street Journal, New York Times, and other publications. The views expressed in this blog are not intended to support specific pieces of legislation or candidates.
Immigration Blog

Small House Bill on Per Country Limits Could Mean Big Changes

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Out of the more than 300 million people residing in the United States, it is likely fewer than 1 percent realize highly skilled foreign nationals endure long waits for green cards. On the other hand, those aware of the long waits likely are personally affected, either because they or a family member are the ones waiting. For those waiting the longest for green cards, on a scale of 1 to 10 the issue is an off the charts “50.”

Sponsored by Rep. Jason Chaffetz (R-UT), HR 3012, “The Fairness for High-Skilled Immigrants Act,” is a small bill by any standards. In recent years, various bills to change U.S. health care or immigration policy have reached lengths of 500 to 1,000 pages. In contrast, H.R. 3012 is barely 6 pages in length. Yet since it may have a legitimate chance of becoming law, it could have a bigger impact on people’s lives than bills 100 times greater in length. (A copy of H.R. 3012 can be found here.)

What Would the Bill Do?

After a transition lasting three years, HR 3012 would eliminate the per country limit for employment-based immigrants. Under the law, employment-based immigration is limited annually to 140,000. In addition, per country caps generally limit the number of employment-based immigrants to 7 percent of the total (except if immigrant visas would otherwise go unused). Because of their large populations, India and China are most negatively affected by these limits. As a result, highly educated Indian and Chinese nationals wait longer for employment-based green cards than their peers from other countries.

Under H.R. 3012, in fiscal years 2012, 2013 and 2014, no more than 85 percent of employment-based immigrant visas could go to nationals of one country. That was designed to prevent Indian nationals, who as a group have been waiting the longest, from potentially using up all the employment-based green cards. Still, Indian and Chinese nationals will be the greatest beneficiaries of the legislation.

The legislation would also increase the per country limit for family-sponsored immigrants to 15 percent (from the current 7 percent). That will primarily benefit nationals from Mexico and the Philippines, many waiting more than a decade in the sibling and adult children categories.

Likely Impact

The bill is likely to shorten the wait times for Indians and Chinese in both the employment-based second preference (EB-2) and employment-based third preference (EB-3). A recent analysis by the National Foundation for American Policy (found here) concluded: “A key part of any solution to reducing wait times is to eliminate the per country limit for employment-based immigrants . . . Eliminating the per country limit would reduce the typical wait for Indians applying today in the EB-3 category from 70 to 12 years. While 12 years is still too long, it would be a welcome reform that would provide green cards for Indian and Chinese professionals waiting the longest in the EB-3 and EB-2 (employment second preference) categories and equalize the wait times in the EB-2 category at about two to three years without regard to country of origin (as opposed to potential waits of 6 years or more for Chinese and Indian nationals in the EB-2 category).”

The House Markup

For a bill to move forward in the legislative process it usually must be “marked up” in committee. In an October 27, 2011 House Judiciary Committee mark-up, H.R. 3012 passed by a voice vote. (That means it had sufficient support that no registered vote was deemed necessary.) Some amendments were ruled out of order and no significant amendments passed to change the core of the bill. The full transcript of the House markup can be found here.

Next Steps

The next step for the legislation is to be voted on by the entire House of Representatives. If the bill passes the House, it would then go to the US Senate. If H.R. 3012 passes the Senate, it would be the first bill to improve high-skill immigration to pass Congress in several years.

Immigration Blog

A Thanksgiving Special: Immigration to America in the Days Before H-1Bs, Green Cards and Illegal Immigration

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Immigration policy in America is difficult to understand. But it is a little easier to understand if one knows about the early history of U.S. immigration. To help people comprehend better what the world was like before the days of H-1Bs and Green Cards, below is a brief history of immigration during the decades before and after the first Thanksgiving.

Opposition to Immigration

Opposition to immigration has always existed in America, with the degree of practical obstacles to those immigrating influenced by the country’s economic circumstances and Americans’ perceptions of international events. A political cartoon once showed two Native American (Indians) on a shore watching the Pilgrims arrive at Plymouth Rock. One knowingly says to the other: “Illegal immigrants.”

Although the first settlers to America at Jamestown and Plymouth were immigrants they were not breaking any immigration laws, since none existed. In fact, it would be a long time before those coming to America would face any serious impediments or legal restrictions.

Early History

In 1607, the first immigrant-settlers to America arrived in Jamestown. To say these first settlers experienced hardship would understate the case. “The hard winter of the Starving Time [1608] reduced a population of about 500 to barely sixty . . . Everything from the horses . . . to rats, snakes, mice and roots dug from the forest were consumed, and emaciated survivors took to eating the dead.”

In 1610, the surviving settlers decided to abandon Jamestown but were soon met at sea by ships with supplies and new settlers and chose to return to the colony. The settlement became important as an example of self-government. While King James and later his son, Charles I, retained the authority to enact laws and govern the colony, the settlers had the right, they believed, to decide purely local matters and established an assembly of burgess.

Plymouth Rock

The first immigrants at Plymouth Rock endured many hardships. Unlike the Jamestown settlement, which was organized by the Virginia Company, the Pilgrims sailed to America as a group of like-minded religious individuals and families seeking freedom to worship without interference from governmental authority. “The First Thanksgiving marked the conclusion of a remarkable year. Eleven months earlier the Pilgrims had arrived at the tip of Cape Cod, fearful and uninformed,” writes Nathaniel Philbrick, author of Mayflower. “They had spent the next month alienating and angering every Native American they happened to come across. By all rights, none of the Pilgrims should have emerged from the first winter alive . . . ”

The immigrants quickly learned a lesson about food production and private property that three centuries later Joseph Stalin and Mao Zedong failed to grasp, resulting in the unfortunate deaths of millions in 20th century China and the Soviet Union. The lesson was simple – people work harder when they own property and can enjoy the fruits of their labor for themselves and their families.

Nathan Philbrick explained: “The fall of 1623 marked the end of Plymouth’s debilitating food shortages. For the last two planting seasons, the Pilgrims had grown crops communally – the approach first used at Jamestown and other English settlements. But as the disastrous harvest of the previous fall had shown, something drastic needed to be done to increase the yield. In April, Bradford had decided that each household should be assigned its own plot to cultivate, with the understanding that each family kept whatever it grew. The change in attitude was stunning. Families were now willing to work much harder than they had ever worked before . . . The Pilgrims had stumbled on the power of capitalism. Although the fortunes of the colony still teetered precariously in the years ahead, the inhabitants never again starved.”

Early Colonial Period

Historian Bernard Bailyn estimates total migration to Colonial America between the founding of the Jamestown colony and 1760 of “at least 700,000,” including slaves forced to America against their will. The scale of immigration from 1630 to 1775 was large given the population size of America and the sending countries. Even in the 1630s and 1640s, concerns about religious persecution sent another 21,000 Puritan immigrants to New England. Between 1630 and 1660, an estimated 210,000 British immigrants came to America. Approximately 75,000 German immigrants arrived between 1727 and 1760, while about 100,000 to 150,000 Scotch-Irish came to the colonies from 1717 to 1760.

The pace of immigration increased after 1760. Bailyn calculates approximately 221,500 arrivals between 1760 and 1775, an average of about 15,000 a year compared to about 5,000 annually in earlier decades. And here is an amazing figure: about 3 percent of Scotland (40,000 people) and 2.3 percent of Ireland (55,000) came to the colonies from 1760 to 1775.

A Correct Prediction of How Immigration Would Transform America Into a World Power

A prescient writer in the London Chronicle in 1773 understood the significance of the large flow of migrants from Britain: “America will, in less than half a century, form a state much more numerous and powerful than their mother-country…”

And this turned out to be true. As we now know, the early immigrants and their descendants became the people who fought for American independence, giving us the country we have today.

Immigration Blog

EB-2 Green Card Situation Improves for High-Skilled Indians and Chinese

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The new State Department Visa Bulletin indicates the availability of green cards is improving slightly for Indian and Chinese nationals sponsored in the employment-based second preference, known as EB-2. (A copy of the latest visa bulletin can be found here.)

How the Law Works

Under the law, there are 5 employment-based preferences: First Preference (EB-1, priority workers); Second Preference (EB-2, worker with advanced degrees or exceptional ability); Third Preference (EB-3, professionals, skilled workers and other workers); Fourth Preference (EB-4, special workers, such as religious workers); and the Fifth Preference (EB-5, employment creation or investor visas).

A total of 40,040, or 28.6 percent of the 140,000 annual quota is used by each of the first, second and third preferences. The second preference can use any numbers not utilized by EB-1, while EB-3, the third preference, can use any visa numbers not utilized by the EB-2 category. For the employment-based second preference, generally the employer needs to require the position to be filled by someone with a masters degree or higher and the individual possesses such a degree.

The employment-based immigrant categories have per country limits, which makes the waits longer for nationals from large countries. India and China are most affected by those limits in the employment categories.

Priority Dates

The setting of priority dates is used to manage the flow of immigrant visas within the limits set by Congress. A visa number generally is “available” for an individual with a priority date earlier than the date listed in the State Department’s most recent Visa Bulletin. A priority date is usually triggered by the date a labor certification application or an immigrant petition is received by the federal government.

In the December 2011 Visa Bulletin, just published online, the priority date for EB-2 is March 15, 2008.  In the November 2011 Visa Bulletin, the priority date for the employment-based second preference was November 1, 2007. This type of movement in a short period is used to encourage more applicants to help ensure the quota is close to fully utilized without going over the annual limit.

The Situation for EB-2 Applicants

In recent years, because of the fall down of immigrant visas from the EB-1 category, about 50,000 immigrant visas a year have been available in the employment-based second preference. Nationals from India and China can exceed the per country limit allocation for their respective countries if otherwise immigrant visas within a category would go unused.

A brief analysis of the EB-2 situation can be found here on the website of the law firm Berry Appleman & Leiden. The analysis notes, “A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.” It goes on to explain: “The DOS [Department of State] has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions.  Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.”

The attorneys at Berry Appleman & Leiden also offer this advice: “While we cannot predict whether movement will occur in the Visa Bulletin, it is important that any Indian or Chinese national with a current priority date files the last step of the green card process as soon as the priority date is current in December.  If visa numbers regress before the application has been filed, the foreign national will lose the opportunity to apply for permanent residence, which would negatively affect dependent children who are close to turning 21.”

The Bottom Line

The bottom line is that absent Congressional changes to employment-based immigrant quotas and the per country limit improvement in green card availability for highly educated Indian nationals may only be short-lived.

Immigration Blog

H-1B Visas Are Almost Gone – Then What?

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Many employers and foreign nationals hoping to work in America have been happy that the supply of H-1B visas did not evaporate rapidly this fiscal year. That happiness may soon change.

The News Isn’t Good

The news from U.S. Citizenship and Immigration Services (USCIS) is that the supply of new H-1B visas for fiscal year 2012 will soon be a thing of the past. (Find link here.)

Contrary to popular belief there is not one but two caps on H-1B visas. The first cap of 65,000 is available to all foreign nationals who qualify for H-1B status and receive a petition. The second cap is a 20,000 allotment for foreign nationals who attain a masters degree or higher from a U.S. university.

U.S. Citizenship and Immigration Services began accepting applications for H-1Bs on April 1, 2011, even though individuals with approved petitions could not legally begin working in H-1B status until October 1st. Earlier this year, the 20,000 “masters exemption” was exhausted. Now, USCIS reports that as of November 14, 2011, 56,300 petitions that count against the 65,000 cap have been utilized. At the current pace, it is possible the remaining cap will be exhausted by the end of the 2011 calendar year.

The Only Practical Way to Hire

Lost in the debate over H-1B visas is a simple fact – an H-1B is generally the only practical way for an employer to hire a foreign-born professional to work long-term in the United States. Factoring in the initial stage of labor certification, the wait for an employment-based green card can range from a few years to even decades, depending on the category and country of origin. And the waits are longest for Indian nationals because of the per country limit.

Available Options

Without the possibility for a skilled foreign national to obtain a new H-1B petition, the options will grow limited for both employers and potential employees. Hiring by universities and non-profit research institutes are exempt from the H-1B numerical limits, which presents one avenue of employment for a skilled foreign national. Another option is that an employer may decide to hire someone outside the country. After a year, if the individual possesses “specialized knowledge” or is a manager or an executive, it may be possible for that individual to transfer into the United States on an L-1 visa.

Another option for an employer is to hire the individual outside the United States and file a new H-1B petition in April 1, 2012, although the individual could not start working in the U.S. until October 1, 2012 (the beginning of the new fiscal year). In short, there are no good options. The closest to a “good” option is for an international student at a U.S. university to determine if he or she qualifies for Optional Practical Training (OPT), which would allow the student to stay in the United States and obtain training while working for an employer for up to a maximum of 29 months.

The Prospects for Legislation

Realistically, it is unlikely Congress will pass an expansion of the H-1B quota in 2011 or during the first half of 2012. Any legislation passed after that time would not help individuals in the short term who need to be hired in H-1B status to work legally in the United States. A new supply of H-1Bs would become available on October 1, 2012.

It is possible that a small expansion of H-1Bs or an expansion of the 20,000 “masters exemption” could be part of another piece of immigration legislation. Yet it is unlikely an expansion of H-1Bs would pass without at least some legislative debate over whether to include new restrictions on H-1B visas in such a bill. In the meantime, the best bet for employers and potential hires who require an H-1B visa is to get one while supplies last.

Immigration Blog

L-1 Visas Issued in India Declined by 28 Percent in 2011

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Given the significant and increasing ties between the US and Indian economies, it is not surprising that companies with offices in India seek to transfer personnel into the United States. However, to do so is not a simple matter, especially over the past year.

Recently, I obtained data from the State Department that show L-1 visas (used for intracompany transfers) issued by U.S. posts in India declined by 28 percent between 2010 and 2011. Yet during the same time period, L-1 visas issued at U.S. diplomatic posts in the rest of the world increased by 15 percent. (See the report here.)

L1 visas are used by companies to transfer from overseas to the United States executives, managers and professionals with “specialized knowledge.” It is believed one of the reasons for the increase in denials centers around consular officers in India adopting a new, stricter interpretation of “specialized knowledge.” Immigration law defines “specialized knowledge” as “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” A company must have employed the L-1 applicant for one year or more continuously within the past 3 years.

Request for Information

On October 25, 2011, the U.S. embassy in New Delhi issued a press release with the headline, “US Mission to India Reports 24% Year-on-Year Increase in H-1B Visas Issued.” The press release stated, “The U.S. Mission to India saw H-1B (specialized skills work visa) issuances in India increase 24% between the U.S. Government’s Fiscal Year (FY) 2011 and FY 2010 . . . This 24% increase is tied to the highest ever H-1B application and issuance rates in the history of the US Mission to India, and illustrates the booming nature of US-India business relations.”

Something appeared to be missing from the press release – information on whether L1 visa issuance increased or decreased in 2011. Curiously, the press release contained only a single reference to L-1 visas, stating: “India also remains the leader in issuances of L1 (intracompany transfer) visas, issuing more than 25,000 L-1s in FY 2011 – or 37% of issuances worldwide.”

Yet without the exact figure on 2011 or the data on 2010, there would be no way of knowing what happened to L1 visas over the past year. Many companies had been reporting increased denials but hard data from the US Department of State remained elusive.

The Data on L-1 Visas

In response to a request for data, the State Department sent me the information on L1 visas issued at U.S. posts in India in 2010 and 2011, as well as L1 visas issued at other posts around the world. The results appear in Tables 1 and 2.

L1 visa data table

 Why Is India Different?

The data appear to be proof that something strange is going on in the L1 visa issuing process in India, which the State Department in the past has denied. The release of the data is likely to spur additional inquiries into why L1 visa issuance is declining in India, while in the rest of the world it is rising. Since every U.S. diplomatic post operates under the same set of laws there is so far no easy answer to the question:

Why are U.S. consular officers in India apparently denying a higher proportion of the L-1 visa applications that come to them than consular officers in other countries?