Tag Archives: H-1B visa

Immigration Blog

Reforms That Would Help Employer-Sponsored Immigrants

Leave a comment

Indians wait longer than other potential employment-based immigrants. That means reforms to America’s employer-sponsored immigration system are likely to help many Indians, as well other skilled professionals. There are several actions Congress or the executive branch can take that will reduce wait times and provide substantial relief to employers and skilled immigrants.

STEM Exemption for Skilled Immigrants

First, Congress can exempt from the green card quotas immigrants with a master’s degree or higher from a U.S. university in a science, technology, engineering or math (STEM) field. This provision has been included in past legislation by Rep. Zoe Lofgren (D-CA) and some others. Congress could expand this measure to go beyond only degrees in those fields or to include individuals who received a Ph.D. in a technical field from abroad. Research has shown those who receive their degree abroad arrive in the United States with substantial human capital, garnered without any U.S. expense, but also may be among the finest in their fields.

Count Only Principals, Not Dependents, Toward Annual Quota

Second, a new law could count only the principal employment-based immigrants, not their dependents, against the 140,000 annual employment-based quota. One reason for the large green card backlogs is that annual H-1B temporary visa quotas count only the principal recipient of an H-1B visa, whereas about half of the 140,000 quota for employment-based immigrant visas is utilized by the dependents (spouse and/or children) of the sponsored immigrant. In addition, Congress could raise the 140,000 annual quota to a higher level.

Utilize Unused Employment-Based Green Cards

Third, lawmakers could provide additional green card relief by including numbers previously allocated by Congress that were not utilized in prior years, such as due to agency processing delays. The State Department estimates there are more than 300,000 unused employment-based green cards allocated in previous years that have never gone to recipients due to administrative issues.

Eliminate the Per Country Limit

Fourth, Congress could eliminate the per country limit on employment-based immigrants. H.R. 3012 would accomplish this feat over a four-year period. The legislation passed the House and, at least for now, is being delayed by a “hold” on the legislation by Senator Charles Grassley (R-IA). Liberalizing rules for employment-based green cards is less controversial than other proposed immigration reforms, as evidenced by the overwhelming vote in the House of Representatives on H.R. 3012.

Allow Filing of Adjustment of Status Before Priority Date

Fifth, allow individuals to file for Adjustment of Status (Form I-485) prior to when his or her immigrant visa become available. Currently, skilled foreign nationals mired in the employment-based green card backlog are often not able to accept promotions or change jobs without the risk of starting their green card applications again. For those waiting a long time the fear of waiting even longer is significant. That would change if early filing of Adjustment of Status were permitted.

If U.S. Citizenship and Immigration Services were to allow individuals waiting for green cards to file for Adjustment of Status even if their priority date has not been reached it would facilitate a more normal existence for those stuck in the green cad backlog. For example a spouse would likely become eligible to work legally in the United States. Also, it is likely the ability to travel in and out of America would become easier, helping people both personally and professionally.

Implementing any or all of the reforms recommended here would aid U.S. employers, immigrants and the American economy, keeping more talent and resources inside the country.

Immigration Blog

Responsible Ways to Increase Compliance with H-1B Visas

Leave a comment

While critics often overstate problems with H-1B temporary visas, it is good policy to eliminate H-1B visa fraud in a practical manner. Perhaps the best way is to empower the potential victims of such fraud – H-1B visa holders. To the extent the current legal regime is insufficient to protect H-1B professionals it can result in individuals being taken advantage of, which harms the H-1B visa holder and, potentially, American workers.

Even if the typical H-1B visa holder is not an indentured servant, as critics allege, situations can arise that leave an individual vulnerable to exploitation. For example, one type of case is when a professional enters the United States but goes a number of months without working or being paid. Such an employer has acted illegally, since it is explicitly against the law to “bench” or place someone in a nonproductive capacity and not pay the individual.

Recommendations

To address these and other situations a number of measures can be taken that would enhance protections for H-1B visa holders and, indirectly, U.S. professionals.

First, Congress, USCIS and DOL should explicitly protect the immigration status of any H-1B visa holder who files a complaint alleging a violation by his employer. Whistleblower protections exist under current law. However, these provisions are not widely known, carry a degree of ambiguity, and are virtually unpublicized by the Department of Labor and U.S. Citizenship and Immigration Services.

More explicit language by Congress can be combined with effective action by government agencies to protect the immigration status of whistleblowers. This should not require an employer to pay a salary to an individual simply because he or she filed a complaint that is pending, since that can easily be abused. And there should be discouragement in the law or regulations regarding the filing of frivolous claims. However, making it clear that an H-1B visa holder who files a complaint can stay in the United States in H-1B status (and seek other employment) while a complaint is adjudicated would increase protections for the individuals and the integrity of the H-1B visa process.

Second, a process should be in place for an H-1B visa holder to file for private arbitration, if necessary, to retrieve disputed wages owed. Such a dispute may not rise to the level of a formal complaint or perhaps an individual feels uncomfortable contacting federal authorities over a private wage issue. While government bureaucrats are not universally loved in America, they are loathed in other nations. The right to arbitration of a wage dispute, which could also carry protection of immigration status, would help provide greater employee-employer balance for a group of people concerned with their immigration status in the United States.

Third, increase employment-based green card quotas and eliminate the per country limit for skilled immigrants. The possibility one would need to re-start the process with a new employer can limit the mobility of someone in H-1B status, which would make them less likely to complain. While most employers only want people to work for them who wish to be there, some employers could take advantage of a situation created by Congress not increasing the quotas for employment-based green cards.

Fourth, all H-1B visa holders should receive the key documents relevant to their case and H-1B status. This includes a copy of the labor condition application, which carries wage information and, for example, the I-797 approval notice. USCIS and the Department of Labor should seek to ensure H-1B visa holders are receiving the documentation they are entitled to, as well as information related to protection of immigration status and how to file complaints.

Finally, Congress should avoid enacting measures that would be so restrictive as to encourage U.S. employers to hire skilled foreign nationals abroad rather than in the United States. Two such actions would be to apply “recruitment” and “nondisplacement” attestations to all U.S. employers. There is no evidence of a need to expand the scope or application of these attestations. In the days of flexible job functions and multiple locations such provisions can cause a General Counsel to conclude his or her company may be unlikely to be in compliance if they hire any H-1B professionals. The safer alternative would be to expand outside the United States rather than risk such legal liability.

Current Law Addresses Key Concerns

Current law already addresses the main concerns of critics. Under Section 413 of the American Competitiveness and Workforce Improvement Act (passed in 1998), a company found committing a “willful” violation of the law regulating the proper wages for H-1B visa holders and displacing a U.S. worker is barred for three years from hiring any foreign nationals in the United States and faces up to a $35,000 fine per violation.

The problem is that the solutions proposed by some critics are essentially thinly disguised efforts to prevent employers from obtaining H-1B visas for any skilled foreign nationals, not really an attempt to address abuse. If one were concerned with companies committing fraud, then strict new requirements would not impact businesses that already ignore the current rules but rather would affect those who obey the law.

Immigration Blog

Per Country Limit Bill Continues to Attract Attention

Leave a comment

H.R. 3012, “The Fairness to High-Skilled Immigrants Act,” is a small bill, anywhere from 1,000 to 2,000 pages shorter than the bills that normally attract a good deal of media attention. Yet H.R. 3012 continues to attract major editorial and news attention.

The bill, which passed the U.S. House of Representatives 389 to 15, would eliminate the per country limit for employment-based immigrants. That would especially help highly skilled individuals from India and China waiting a long time for green cards. The bill would also raise the per country limit from family-sponsored immigrants from 7 to 15 percent.

The Wall Street Journal editorial page used its powerful voice to call for Senate passage of the bill. “For businesses looking to hire advanced-degree candidates or skilled workers, the end of the cap is a good thing,” argued the editorial. “The 7% solution sought to make the American dream accessible to people from every nation. But today’s reality is that American universities are graduating a high number of foreign-born engineers, computer geeks, scientists, mathematicians and nurses that come from a narrow list of countries. The U.S. will be more prosperous by letting graduates who land jobs stay permanently.” (Find the editorial here, registration may be required.)

But the Wall Street Journal noted the legislation is not the ultimate solution to the employment-based green card problem: “The trouble is that the House bill does nothing to address the real problem: 140,000 green cards a year for advanced-degree and skilled workers is far too few. By refusing to increase the number, or to make a special category of green cards automatically available for American university graduates in science, technology, engineering and math, Congress is again delaying reform that could help the lackluster U.S. economy.”

In an editorial titled “Tinkering at Immigration’s Margins,” the Washington Post also weighed in on the bill, but not as favorably as the Wall Street Journal. “A bill passed by the House of Representatives last month would grant a few thousand more green cards annually to Indian and Chinese engineers, software designers and scientists, mostly at the expense of Korean, Filipino and Mexican engineers, software designers and scientists,” wrote the Washington Post. “Since the legislation makes no overall change in the paltry number of green cards available, hundreds of thousands of highly skilled employees already working in the United States on short-term visas will remain backlogged in the system, in many cases waiting for more than a decade to become legal, permanent residents. That’s what passes for immigration reform in Congress these days.”

Not surprisingly, the legislation has also made news in India. The Economic Times of India took a different tact from its American counterparts, focusing on the impact of current U.S. immigration law on the lives of individuals. (Find article here.) It cited the example of an Indian IT (information technology) specialist who came to the United States in 2003 on an H-1B visa. His employer filed for his green card in 2004 in the third preference and he is still waiting. “He is living in the U.S. under annual extensions of H1B, and every time he leaves the US, he has to apply for advance parole with the U.S. Citizenship and Immigration Services, so that he is not stopped from re-entering,” reports the newspaper. “Kumar doesn’t know when his application for green card will become current.”

The article notes it could take another 10 years or more. “Living in such uncertainty is tough. He had started toying with the idea of giving up the green card dream and returning to India. But that was till last week when the U.S. House of Representatives passed ‘The Fairness to High-Skilled Immigrants Act.’”

As of this writing, H.R. 3012 remains held up in the Senate by Senator Charles Grassley (R-IA). No one can be certain whether he intends simply to slow down the bill, force it through the committee process, or see that it never comes up for a vote.

Immigration Blog

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

Leave a comment

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

Indians and Illegal Immigration

Leave a comment

The vast majority of Indians come to the United States legally and stay here as legal visa holders. Many become permanent residents (green card holders) and then U.S. citizens. Indeed, in terms of income and education, it would be difficult to find a more successful immigrant group in U.S. history.

There are also Indians in the United States illegally. Such individuals remain a small part of the overall illegal immigrant population. Still, it is a segment worth exploring to help us better understand the immigration issue.

According to the US Department of Homeland Security (DHS), Indians made up only 1.9 percent of the illegal immigrant population in the United States as of January 2010. (Here is a link to that report.) There were approximately 200,000 Indians not in legal status in the U.S. out of a total illegal immigrant population of 10,790,000, according to a DHS report released in February 2011.

Table 1

Illegal Immigrant Population by Country (2010)

Country of Birth Estimated Unauthorized Immigrant Population (2010)
Mexico 6,640,000
El Salvador 620,000
Guatemala 520,000
Honduras 330,000
Philippines 280,000
India 200,000
Ecuador 180,000
Brazil 180,000
Korea 170,000
China 130,000
All Countries 10,790,000

                                               Source: Department of Homeland Security.

A Country by Country Look

One can see by examining Table 1 that Mexico dominates the overall illegal immigration population in the United States, representing over 60 percent, with 6.6 million. The next three countries have far smaller numbers of illegal immigrants in America: El Salvador with 620,000, Guatemala with 520,000 and Honduras with 330,000. These figures are as of January 2010, which means it’s possible newer data could yield slightly different results.

The Philippines has the fifth most illegal immigrants with 280,000, followed by India in 6th place with 200,000. Illegal immigrants from the Philippines and India largely come to the United States legally on visas and then overstay their visas. Unlike Mexicans, Indians cannot simply cross a border and find themselves in the United States. While it is possible some may have gone to Canada or Mexico and entered America illegally, it is more likely Indian illegal immigrants were once in some type of legal status and lost that status.

Changes in Indian Unauthorized Immigrant Population Over Time

In 1990, Indians made up an estimated 0.8 percent of the unauthorized immigrant population, with only 28,000 illegal immigrants, according to the then Immigration and Naturalization Service (INS). It’s possible the 28,000 figure is a low estimate of the number of illegal immigrants from India in 1990. That is because an initial INS estimate of the number of Indians in the country illegally in the year 2000 was only 70,000. However, a few years later that figure was revised to 120,000.

Measuring the number of illegal immigrants in the United States is, by definition, not easy. It is even harder to make accurate estimates of smaller subsets of that population. Table 2 shows the overall number of Indians in the United States in the “unauthorized immigrant population” – the term used by the Department of Homeland Security – in 1990, 2000 and 2010. The numbers indicate the Indian population not in legal status has risen from 28,000 in 1990 to 200,000 in 2000.

Table 2

                                         Indian Unauthorized Immigrant Population: 1990 to 2010

Year Indian Percentage of Total
1990 28,000 0.8 percent
2000 120,000 1.4 percent
2010 200,000 1.9 percent

                   Source: Department of Homeland Security, Immigration and Naturalization Service.

Illegal Immigration Issue Remains Important

Whether someone is waiting for a green card or is an employer of immigrants, it would do well to remember that illegal immigration remains important in the American public’s mind. It drives the overall debate on immigration. In past years, disagreement on whether or not to provide legal status to the illegal immigrant population scuttled attempts to provide more green cards for high-skilled immigrants, including many Indians. The issue of illegal immigration is not going away.