Outdated Employment Based Immigration System

By Rahul Reddy & Emily Neumann, Attorneys at Law, www.rnlawgroup.com; This email address is being protected from spambots. You need JavaScript enabled to view it.

 

The Employment-Based Immigration system by which U.S. companies seek top talent globally is just as broken as border security, yet it gets little attention in the current immigration debate. Legal immigration is a highly regulated and tightly controlled bureaucratic system that should serve our national interest by providing U.S. employers with access to workers with the specific skills necessary to strengthen the economy and remain competitive in the global economy. Immigration laws need to be revised to ensure that American businesses have access to essential workers without having to overcome the current hurdles, such as:

Up To 18-month Delay to Hire H-1B Worker:

Congress has limited the number of new H-1B visas available each year to only 65,000, a number that was reached within only 5 days this past April. Even the additional 20,000 that are exempt from the cap for U.S. master’s degree holders were used up immediately. This has led to an 18-month hiatus for businesses that must wait from April 2013 untilOctober 1, 2014 to employ an H-1B worker who did not make this year’s cut. If this year is any indication of what is to come, even after waiting up to 18 months, an employer must hope that the worker gets selected in the lottery because there are not enough slots for all of the applications filed. The H-1B cap should be immediately raised to 180,000 and future years should allow for additional increases to keep in line with demand.

Inconsistent Adjudications:

In addition to getting past the hurdle created by the unreasonably low number of visas available, inconsistency between adjudications creates doubt as to whether an H-1B petition will actually be approved. An employer may file two almost identical petitions and one will be approved while the other is denied. When a legitimate petition is denied, the business can lose up to $8,000 or more in filing fees and attorney fees. This does not include the cost of lost business due to the company’s inability to hire a key worker for a new project. Clear standards for adjudication should be set forth allowing legitimate employers to have a sense of certainty that an application for a needed worker will be approved.

Burdensome Documentation Requirements:

Small-to medium-sized businesses are often requested to submit voluminous documentation to establish eligibility, which is overly burdensome and creates additional cost. Recently, a U.S. employer with over 150 employees in almost all 50 States was required to submit Quarterly Wage Reports filed with each State for the past 9 quarters. The stack of documents was so excessive that a large box had to be couriered to the immigration office. Documentation requests should be limited to those that are relevant without being excessive. Also, further restrictions and red-tape in the H-1B visa application process should be avoided. The USCIS Site Visit program does an excellent job of ferreting out businesses that misuse the H-1B visa. Adding additional filing requirements and compliance steps would make it more difficult for small- to medium-sized businesses to compete in the global economy.

Wasted Green Cards:

From 1992 to the present over 400,000 green cards went unused due to processing delays and the per-country cap. This waste should be remedied by allowing these immigrant visas to be used to reduce the current backlogs.

Spouses and Children are Needlessly Counted Towards the Green Card Cap:

Each year, approximately 80,000 of the 140,000 employment-based green cards available are issued to spouses and children of the sponsored worker. This creates additional backlog for the actual workers being sponsored. For example, a professional with his wife and two children currently draws down four green cards from a given employment-based immigration category. The law should be changed such that only a single green card, one for the primary applicant, would count against the quota.

Per Country Cap is Discriminatory:

Under the current system, 140,000 employment-based green cards are allotted for foreign nationals and, these green cards are distributed equally among all countries, with a 7% quota set for each country. These parameters have resulted in backlogs for individuals coming from high-demand countries like India, even when the overall cap has not been reached. A professional from India holding a master’s degree currently must wait almost 9 years to obtain a green card. The wait is even longer for bachelor’s degree holders or skilled workers. The per-country cap is discriminatory and should be eliminated so that all individuals are on an even playing field regardless of the country of origin. If an employer finds a talented worker, the question of the worker's country of birth should be irrelevant.

Discouraging Entrepreneurship and Innovation:

More than 40% of the 2010 Fortune 500 companies were founded by immigrants or their children. However, long backlogs and the inability to access green cards results in talent leaving the country. The immigration system should be reformed to promote entrepreneurship and award achievement.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.