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Immigrant visa reform poised to complicate hiring plans

Legislators plan to act on a bill that will remove per-country caps for immigrant workers, making it more difficult for companies to hire skilled employees from certain countries.

The U.S. House of Representatives has passed legislation to make it easier for workers from India to get permanent residency status. This green card reform bill has big implications for employers of immigrant visa workers, making it harder to hire people from countries other than India. 

The U.S. House, in a strongly bipartisan 365-65 vote, recently agreed to end the per-country cap for employment-based green cards. No country today gets more than 7% of the available employment-based visas. But as many as 75% of the high-skill workers are from India.

Because of the per-country cap, workers from India can wait eight years, a decade, or more for permanent residency. That's not true for workers from most other countries.

Take South Korea. The number of workers from that country seeking residency usually falls below the cap. A South Korean student who earns a STEM degree from a U.S. university can work for several years on their student visa under the Optional Practical Training (OPT) program. In the meantime, their employer can sponsor this worker for an employment-based green card. Workers from India don't have that option. Because of per-country caps, the employer will typically sponsor the employee for an H-1B temporary work visa and then hope they win the visa lottery.

The green card reform bill, called the Fairness for High-Skilled Immigrants Act of 2019, replaces the per-country caps with a first-come, first-served system. This means everyone, no matter what country they are from, must now stand in a multiyear line for a green card. And all employers may have to seek an H-1B visa as a step toward a green card.

Green card reform bill fairness in question

"It's called a fairness bill -- is it fair?" said Margo Chernysheva, chair of the immigration law practice group at Fennemore Craig P.C. in Las Vegas. "In my opinion, it depends on who you are talking to."

Margo Chernysheva,immigration attorney.Margo Chernysheva

If you recruit most of your professional workers from countries other than India or China, "then you could all of a sudden see longer backlogs where today there are none," said Andrew Greenfield, managing partner of the Washington, D.C., office of the immigration law firm Fragomen, Del Rey, Bernsen & Loewy LLP.

Those that argue for maintaining the present system maintain that "it permits the greatest diversity of immigrants to the U.S.," Greenfield said. But others said the current system is unfair because it puts India, with a population of 1.3 billion, on par with a country such as Iceland, with a population of 300,000, he said.

Andrew Greenfield, immigration attorney Andrew Greenfield

The Senate is considering a similar green card reform bill. No action is expected on it until September. It's unclear whether President Trump will approve it if it reaches his desk.

The H-1B visa is good for up to six years, and people can continue to work past that date if they are being sponsored for a green card. But until they get permanent residency, these workers can't easily switch jobs. Employers have a lot of power over visa workers.

Without a green card, an immigrant worker who loses a job and doesn't find another visa sponsoring employer quickly may be forced to leave the country, said Meghna Sabharwal, an associate professor at The University of Texas at Dallas and program head of its Public and Nonprofit Management program.

"They've been educated in the U.S., they've contributed to the nation, they want to continue here working, but the immigration system has pushed some of them back to their home countries," Sabharwal said. She is conducting a National Science Foundation-sponsored research on what's called reverse brain drain.

The tech industry has lobbied hard for the fairness bill, HR 1044, sponsored by Zoe Lofgren (D-Calif.). Firms that have registered as lobbying on this bill include Intel, Cognizant Technology Solutions, Deloitte LLP, Facebook Inc., Hewlett Packard Enterprise, IBM, Microsoft and business groups, according to OpenSecrets data.

It's called a fairness bill -- is it fair?
Margo ChernyshevaChair, Fennemore Craig P.C.

The legislation has yet to receive a hearing. If the bill gets a Senate hearing, familiar arguments may be raised about high-skill visa policy, as well as some new ones.

The National Iranian American Council, for instance, said the bill "would add nearly a decade in additional processing time for Iranians" and other countries underrepresented in the cap. There is long-standing opposition from tech workers who have lost jobs, in particular, to offshore outsourcing firms. And arguments, as well, that the U.S. produces enough STEM workers.

Under immigrant visa rules, a person may be a naturalized citizen of Canada, but if they were born in India or some other country, they are included in the India cap, Greenfield said.

The total number of employment-based green cards issued in any year is 140,000. But those aren't all workers. A spouse and children are also counted under this cap along with the visa holder.

H-1B will become a 13-year visa

Daniel Costa, director of immigration law and policy research at the Economic Policy Institute in Washington, D.C., said the estimates are that employment-based green card wait times will even out for everyone to around seven or eight years.

permanent green card

"H-1Bs will essentially become 13- or 14-year visas for people in the green card line," Costa said, and it "will nearly be impossible to get sponsored by an employer from abroad for an employment-based green card directly."

"The bill would more or less double the H-1B indenture period in that scenario," Costa said. But, "at present, the indenture period for Indians is virtually infinity."

Costa would rather see broader reforms, including enforceable labor certification for H-1B workers at the start of the process, instead of the certification required at the end of the process for green card workers. Labor certification is a process where employers have to show they were unable to find a domestic worker for the job. He also argues for changes to make the H-1B workers less indentured.

"Fixing H-1B should come first, otherwise we will continue to have absurd results -- but at the same time, it's impossible to not have a lot of sympathy for the people stuck and indentured in the backlog who would benefit," Costa said.

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