Tag Archives: Green Card

Immigration Blog

America Lacks An Immigrant Entrepreneur Visa

Leave a comment

It would surprise many people that there really is no good way for a foreign national from India or elsewhere to gain permanent residence (a green card) by starting a new company. In fact, it is difficult to even gain a temporary visa as the founder of a new business.

EB-5 Is Not a True Immigrant Entrepreneur Visa

The closest America has today to an immigrant entrepreneur visa is the EB-5 (employment-based fifth preference) immigrant investor visa. The immigrant investor visa became part of the Immigration and Nationality Act in 1990. To receive such a visa, which awards permanent residence (a green card), an individual must invest either $1 million or $500,000 (if in a Regional Center) and create at least 10 jobs. “Approximately 90 to 95 percent of individual Form I-526 petitions filed each year are filed by Alien Investors who are investing in Regional Center-affiliated commercial enterprises,” according to U.S. Citizenship and Immigration Services. While it is clear attracting capital to the United States is positive, EB-5 primarily helps existing projects, rather than facilitates or rewards startup activity.

In addition, Congress and agency regulations have not made it easy for potential immigrant investor visa holders. This is one reason the EB-5 category has never come close to utilizing fully the 10,000 allocation of immigrant visas available under the statute.

American Tradition Favors Establishing an Entrepreneur Visa

While there is no reason to eliminate the immigrant investor visa category – and, in fact, there is a strong case to be made for streamlining its requirements to making it more accessible to potential investors – it goes against America’s tradition to reward cash investments but not entrepreneurial talent in U.S. immigration law. For a long time, the United States favored talent and hard work over cash. An entire genre of literature, the Horatio Alger stories, featured rags to riches heroes. The stories of many of today’s immigrants who become successful entrepreneurs illustrate that talent is a better indicator of success than a healthy bank balance.

Bills in Congress

A number of bills in Congress have been introduced that would establish an immigrant entrepreneur visa. The Startup Act (S. 1965), introduced by Senators Jerry Moran (R-KS) and Mark Warner (D-VA), would create a new green card category for entrepreneurs, focusing on highly-skilled foreign nationals with an existing tie to the United States. The bill “creates a new visa for up to 75,000 immigrant entrepreneurs who hold an H-1B visa or have completed graduate level work in a STEM [science, technology, engineering and math] field, and who during the 1-year period after the new visa is issued register at least one new business entity which employs at least two full-time, non-family member employees, and invests or raises capital investments of at least $100,000,” according to a summary of the legislation provided by the bill’s authors. “If these requirements are satisfied, the entrepreneur would have three additional years to remain in the U.S. and operate his or her business. During the three-year period, the entrepreneur must employ at least five, full-time, non-family members for the business entity. At the end of the three years, a recipient may apply to remove the conditional status.”

The Startup Visa Act of 2011 (S. 565), introduced by Senators John Kerry (D-MA) and Richard Lugar (R-IN), would make an immigrant visa available to a foreign national who raises at least $100,000 from a “qualified venture capitalist, a qualified super angel investor, or a qualified government entity” and creates five full time jobs in the United States (other than for a spouse, son or daughter), raises $500,000 in capital investment, or has an unexpired H-1B visa or a graduate degree in a STEM field from a U.S. university and attracts $20,000 in investment from a qualified investor and creates at least three jobs and generates revenue, or raises capital of, $100,000 within two years.

Legislation by Rep. Zoe Lofgren (D-CA), H.R. 2161 (The IDEA Act) contains similar provisions on establishing an immigrant entrepreneur visa to those contained in S. 565 and S. 1965. However, it also contains a section that eschews capital requirements and enables a foreign-born entrepreneur to receive an immigrant visa if he or she creates 10 or more full-time U.S. jobs within two years, without regard to the amount of outside capital raised.

It is unclear whether Congress will act on any of these bills. Legislative measures that place less emphasis on the amount of capital a foreign national invests or raises fit best within the American tradition of entrepreneurship. It also conforms to today’s reality of how businesses get started. Giving foreign nationals who start new companies deserve an opportunity to follow through on their dreams and, in the process, create jobs and wealth in America.

Immigration Blog

Understanding the Potentially Decades-Long Waits for Indian Professionals in the Most Common Employment-Based Green Card Category

Leave a comment

Today, hundreds of thousands of highly skilled foreign nationals, particularly Indians, are languishing in immigration backlogs, waiting years for the chance to obtain permanent residence (also known as a green card). The lack of employment-based green cards harms the competitiveness of U.S. employers and exacts a large personal toll on those who must wait.

Understanding the Indian Green Card Backlog

The long waits for employment-based green cards are caused by two primary factors. First, the 140,000 annual quota is too low to accommodate the number of skilled foreign nationals able to be absorbed successfully in an economy the size of America’s. The 140,000 annual limit includes both the principal and dependent family members. For example, in 2009, dependents utilized more than half of the slots for employment-based visas – 76,935 of 140,903.

In addition to the 140,000 overall annual limit on employment-based green cards, there is also a per country limit, which has a disparate impact on immigrants from countries with a large population of highly educated professionals, particularly India and China. The Immigration and Nationality Act, in Section 202(a), details the per country limit: “[T]he total number of immigrant visas made available to natives of any single foreign state . . . may not exceed 7 percent . . . of the total number of such visas made available under such subsections in that fiscal year.” That would limit employment-based immigrants from one country to approximately 10,000 a year (out of the 140,000 quota), although another provision permits nationals of a country to exceed this ceiling if additional employment-based visas are available. Still, in general, in the most common employment-based category, fewer than 3,000 Indians per year can immigrate.

The Indian Backlog in the Employment-Based Third Preference (EB-3)

The reason Indian nationals will continue to wait a long time for employment-based green cards in the employment-based third preference (EB-3), the most common employment category, is the demand for their labor combined with the per country limit has created a large Indian backlog.

The backlog of Indians in the employment-based third preference could be as large as 210,000. One can estimate the backlog of Indians in the EB-3 category from available data. Earlier in 2010, the U.S. Department of State listed 49,850 Indians on the waiting list in the third preference category with a priority date prior to January 1, 2007. Priority dates normally coincide with the filing of a petition or of labor certification, an early stage in the employment-based green card process. However, that 49,850 figure does not include all the cases at various stages in the process at U.S. Citizenship and Immigration Services with a priority date prior to January 1, 2007. Rounding that figure upwards would get to at least 60,000 (and it could be higher).

To reach another 150,000 Indians for fiscal years 2007 through 2011 requires only about 15,000 individual Indian professionals sponsored for green cards each year for 5 years, with each averaging one dependent, another 15,000, for a total of 30,000 a year for 5 years or 150,000. To illustrate why an estimate of at least 15,000 Indians sponsored for green cards annually in EB-3 is reasonable, consider that 61,739 new H-1B petitions (for initial employment) were approved for Indians in FY 2008, and 33,961 Indians were approved for new H-1B petitions in FY 2009. A large proportion of H-1B visa holders are sponsored for green cards. In addition, employers frequently sponsor for green cards skilled foreign nationals already inside the country in another temporary status, such as L-1 (for intracompany transferees). Attorneys estimate 20 percent of those waiting for employment-based green cards are in a status other than H-1B.

Backlog is Large and Few Are Removed From Backlog Each Year

With no change to current law, an Indian-born professional sponsored today could wait decades for an employment-based green card. Due to the per country limit, generally no more than 2,800 Indians can receive permanent residence in the EB-3 category each year. Indians averaged fewer than 3,000 green cards annually in that category in 2009 and 2010, according to U.S. Citizenship and Immigration Services.

If, as discussed above, the potential backlog in the EB-3 category is 210,000 for Indians (principals and dependents) and 3,000 or fewer Indians can receive permanent residence in the category each year, then that means the theoretical wait for Indian professionals sponsored today in EB-3 is 70 years.

Nobody Will Wait 70 Years for a Green Card

In practice, no one can wait 70 years for a green card. That holds important implications for whether highly skilled foreign nationals from India will be able to stay long-term in the United States without changes to the law. Foreign nationals would have concerns that children included as part of the immigration petition would “age out” and not be allowed to become permanent residents. Moreover, generally speaking, spouses are not able to work. The numbers provide an illustration of how long the waits for permanent residence could be absent action by Congress. Eliminating the per country limit for employment-based green cards and raising the quotas for skilled immigrants will have a significant impact on reducing the time Indians wait for green cards.

Immigration Blog

New Research Reveals Benefits of High Skill Immigration

Leave a comment

The main argument made against providing more green cards or temporary visas for high skilled immigrants is that it would mean fewer jobs for U.S. workers. Such concern is based on the mistaken impression that there is only a fixed number of jobs and the entry of any newcomer to the labor market must mean bad news for an incumbent jobholder. Of course, that concern does not reflect how a market economy functions.

Now there is new evidence from a respected economist that high skilled foreign nationals create more jobs for Americans. The report from American Enterprise Institute and the Partnership for a New American Economy – a copy of the study can be found here – was conducted by Madeline Zavodny, a professor of economics at Agnes Scott College and former research economist at the Federal Reserve Bank of Atlanta.

The report carried four main conclusions. First, that immigrants with advanced degrees, particularly in STEM (science, technology, engineering or math) fields create more jobs for U.S.-born workers. According to Zavodny, “The data comparing employment among the fifty states and the District of Columbia show that from 2000 to 2007, an additional 100 foreign-born workers in STEM fields with advanced degrees from U.S. universities is associated with an additional 262 jobs among U.S. natives.”

Second, the study found positive employment benefits from both low skill (H-2B) and high skill (H-1B) temporary visas. “The data show that states with greater numbers of temporary workers in the H-1B program for skilled workers and H-2B program for less-skilled nonagricultural workers had higher employment among U.S. natives. Specifically, adding 100 H-1B workers results in an additional 183 jobs among U.S. natives. Adding 100 H-2B workers results in an additional 464 jobs for U.S. natives,” according to the analysis.

Third, the research addresses concerns that more immigrants entering the labor force hurt U.S. workers. The study concluded, “The analysis yields no evidence that foreign-born workers, taken in the aggregate, hurt U.S. employment.”

Fourth, immigrants with a high education level are major fiscal contributors to the United States. Zavodny writes, “In 2009, the average foreign-born adult with an advanced degree paid over $22,500 in federal, state, and Federal Insurance Contributions Act (FICA, or Social Security and Medicare) taxes, while their families received benefits one-tenth that size through government transfer programs like cash welfare, unemployment benefits, and Medicaid.”

Zavodny believes it’s possible the research underestimated the benefits of high skill immigration. “There are two reasons to think that this study, which uses annual, state-level data over a ten-year period, may actually underestimate the job-creating effects of highly skilled immigrants. First, it does not capture long-run effects if the economy benefits more from immigrants in the long run than in the short run (as suggested by other recent research). Second, it does not capture ‘spillover effects’ if immigrants create jobs in states other than the one where they work (for example, more immigration in California leads businesses to also create new jobs at a subsidiary in Indiana).”

The study was praised by elected officials who favor more liberalized immigration policies. “At a time when job creation should be our highest priority, the study released today casts light on some of the greatest potential areas for growth, at no cost to taxpayers,” said New York City Mayor Michael R. Bloomberg, co-chair of the Partnership for a New American Economy. “It’s time for Washington to restart the conversation on immigration reform – and to center it on our economic needs.”

While the research is not likely to cause critics of immigration to throw up their hands and concede defeat, the study represents important evidence that America and Americans gain from being open to immigrants.

Immigration Blog

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

8 Comments

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

Will A New Bill Aid International Students with Ph.D.s – and Others?

Leave a comment

The Wall Street Journal has reported that House Judiciary Committee Chair Lamar Smith (R-TX) plans to introduce legislation to provide extra green cards for certain international students. (Find article here, registration required.)

As described, the legislation would likely have a positive impact on skilled immigrants.

For several years there has been great interest in the high tech community in exempting graduates of U.S. universities from employment-based green card quotas. In particular, the focus has been on individuals with advanced degrees from U.S. universities in science, technology, engineering or mathematics (STEM) fields. Some high tech executives have referred to such legislation as stapling a green card to the diploma of certain international students. In fact, a bill by Rep. Jeff Flake (R-AZ) is called the STAPLE Act (H.R. 399).

What Would New Legislation Likely Include?

The Wall Street Journal summarizes the likely contents of a new bill aimed at international students with Ph.D.s: “Rep. Lamar Smith (R., Texas), chairman of the House Judiciary Committee, said he plans to introduce legislation providing up to 10,000 visas a year to foreign students graduating from US universities with doctorates in engineering, information technology and the natural sciences.”

It is unclear from the description whether the intention is to create a new category or an exemption from the current 140,000 annual quota for employment-based green cards.

Which Universities Would Be Eligible?

A key question in any proposed legislation is whether degrees from all universities will allow international students to qualify. One concern expressed by lawmakers is a “diploma mill” could come into operation seeking to attract students by offering a way to gain a green card easier. For that reason any legislation is likely to restrict degrees to those obtained from universities in operation for a number of years and possibly only “research” universities. The definition of research universities and how many would be included in such a definition will remain an issue.

Which Degrees Would Be Eligible?

Another issue is whether legislation would be restricted to only Ph.D.s or to include recipients of masters degrees as well. Based on the Wall Street Journal article, it appears Rep. Smith would like to limit any bill to Ph.D.s. only.

A related matter is Ph.D.s in which fields. Members of Congress have focused on degrees in science, technology, engineering or mathematics (STEM) fields. It is possible Rep. Smith’s legislation would be narrower. In the interview with the Wall Street Journal, Rep. Smith mentioned engineering, information technology and the natural sciences as eligible areas.

Job Offer

It is likely any legislation would require the individual receive a job offer from an employer before being eligible for a green card.

Labor Certification

One of the most burdensome aspects of the employment-based immigration process is labor certification. That is a process that can cost employers several thousand dollars and can take 6 months to two years to gain approval from the U.S. Department of Labor. The process is meant to show no other qualified American is available to fill the job. Proving that often involves paying for advertisements and showing the results to the Department of Labor. Any exemption or special visa would be much more desirable if the applicant did not have to endure the labor certification process.

Likely Impact

Legislation limited to Ph.D. recipients would have a two-fold impact. First, it would likely allow for a green card to be received in a timely fashion for such individuals without regard to country of origin. (One assumes any legislation would exempt the recipients from the per country limit.) Even individuals who earn a Ph.D. could wait years for a green card in the employment-based second preference category if they are born in India or China. Second, adding extra visas to the employment-based immigrant category would free up numbers even for individuals who are not eligible, thereby reducing overall waiting times by a modest amount.

Rep. Smith’s bill would be notable because a bill introduced by the chairman of the committee with jurisdiction, in this case the House Judiciary Committee, has a far greater chance of moving through the legislative process than bills introduced by other members of Congress. Once introduced, it will be legislation worth watching.