Please contact your senator through email (draft enclosed - please make sure you personalize the draft)  or Call the Senators office and leave a message.)

Please follow the link below, search by Zipcode or state to find the name and contact information of your local senator:

https://whoismyrepresentative.com/

(Below is a draft that you can use.)

Date

The Honorable ________
Office Address
United States House of Representatives/United State Senate
City, State, Zip

Dear Representative/Senator ______________:

I am writing to request your support of the amendments proposed by Senator Orrin Hatch (R-UT) to the DACA bill that could benefit not only immigrants but American citizens. I hope that by bringing the following issues to your attention, I can instigate positive change for the thousands of immigrants who face the same predicament.

I am a [job title] and have been living and working in the United States pursuant to a temporary work visa since [date]. My work in the field of ___________helps [describe the importance of your work to the US economy or society]. I have a [master’s, bachelor’s] degree in [field of study]. I began my journey towards lawful permanent residence in [year of priority date]. I remain hopeful that I might finally achieve my goal of permanent residence in this country, but the per country numerical limitation for employment-based immigrants
keeps me stuck in limbo simply because of where I was born. Based on the statistics available, it is expected that I will have to wait _____ years for a green card to become available because I was born in [country of birth]. In contrast, an individual with the exact same education and job offer from almost any other country does not have any wait at all.

The Hatch Amendments include provisions which would exempt those with a Master’s degree or higher from a U.S. institution from the H-1B employment-based green cards. The Hatch Amendments also propose changes to the visa program that would allow worker mobility for those seeking a green card by allowing them to change jobs earlier without losing their place in the green card line and provide work authorization for spouses and dependent children of H-1B visa holders.

Specifically, I strongly urge you to vote YES on the following amendments:

·         Vote YES to exempting holders of U.S. Master’s degrees or higher who are being sponsored for green cards from the annual numerical limitations on H-1B visas;

·         Vote YES to eliminating annual per-country limits for employment-based green cards so that applicants from more populous countries are not unfairly discriminated against relative to applicants from less populous countries;

·         Vote YES to increasing worker mobility for individuals on the path to a green card by enabling such individuals to change jobs earlier in the process without losing their place in the green card line;

·         Vote YES to codifying existing regulations regarding spousal work authorization and post-education practical training;

These amendments would strengthen the U.S. economy and stimulate innovation by making important and much-needed improvements to the H-1B and green card program. It is crucial that we invest in our country’s future competitiveness by providing skilled foreign students and professionals with the opportunity to remain here and apply their skills and knowledge to our growing economy.

Hence, I respectfully request and anticipate your support in treating my community of hard working H-1B individuals favorably. Thank you in advance for your time and consideration regarding this issue.

Sincerely,

Your Name
Your Title
Your Address
Your City, State, Zip
Your Phone Number

 

By Rahul Reddy & Paloma Feghali Attorney's at Law 

This past weekend, word spread that the Trump administration is reviewing a proposal that could impact H1B extensions beyond the six-year limitation. This has sparked great concern and has left many worried that thousands of Indians could be sent back to India.

If any changes were to happen, they would need to be permissible under AC-21, which provides two important exemptions from the six-year limit for H1B holders. The language shows that while some of AC-21 is open to interpretation, other parts would be difficult for the Trump Administration to bypass.

  • Section 104(c) provides that the beneficiary of an I-140 - Employment-Based Immigrant Petition - who is eligible to be granted a green card but for the application of the per country limitations,"may apply" for, and the "Attorney General may grant", an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made.
  • Section 106(a) states that the 6-year limitation “shall not apply” to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant H-1B status on whose behalf a petition has been filed if 365 days or more have elapsed since:
  1. the filing of a labor certification application on the alien’s behalf, or
  2. the filing of the I-140 Immigrant Petition.

Further, AC-21 provides that “[t]he Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.”

The use of the word “may” in Section 104(c) and the word “shall” in Section 106(a) are key in interpreting whether these exemptions are mandatory. The Trump administration could arguably interpret the word “may” in Section 104(c) to say that H-1B extensions under 104(c) are discretionary and the Attorney General can decide whether or not to grant them. However, any changes in interpretation would need to go through the regulatory process, and no regulations have been proposed at this time. President Trump cannot unilaterally change this law.

Furthermore, the use of the word “shall” in Section 106(a) provides safeguards, even if this regulation was proposed and succeeded through the regulatory process.  The language in 106(a) states that a beneficiary is entitled to one-year extensions if a labor certification or I-140 is filed prior to the six-year limit. In other words, even if the administration were to do away with the three-year extensions beyond the six-year limit, the one-year extension rule would still be retained.

After taking a look at the language of AC-21, it appears that the change would not be as drastic as anticipated since the one-year extension rule would be retained. In the meantime, please be aware that you are still eligible to receive extensions beyond the six-year limit based on both exemptions.

By Rahul Reddy Attorney at Law.

U.S. immigration law provides foreign nationals with a variety of ways to become lawful permanent residents. Many Indian nationals apply for green cards through the employment-based immigration system every year. One of the most popular avenues for obtaining a green card for Indians, and thus the one that will be discussed here, is via the Employment-Based 2nd preference category. What many Indian applicants don’t know is that, unless the system undergoes drastic changes, they will be waiting at least 108.6 years to receive green cards even if they begin the process today.

This may be a shock, considering the available information from USCIS makes it appear as though the waiting period for Indians is currently only about 7 years. In order to calculate the wait time, an applicant needs to know the ‘priority date’ that is current and the number of pending cases preceding his own. The Department of State releases a monthly ‘Visa Bulletin’ that reports the current priority dates for each employment-based category. The ‘Final Action’ date indicates the cases that have become current and are due for visa issuance. For example, the Bulletin released for January 2018 shows the Final Action date is November 22, 2008, for Employment-Based 2nd preference cases from India.[1]

According to the Bulletin, EB-2 cases from India dated before November 22, 2008, are current. To calculate how many pending cases there are, one can consult the USCIS inventory of pending Employment-Based I-485 applications. This is updated quarterly and reports how many pending adjustments of status (green card) applications in each preference category have priority dates in a given month and year.[2]

By using these two reports, it appears that it is easy to determine the wait time before a visa number becomes available for your own case. For example, imagine if John Smith, an Indian national with an advanced degree, were a 2nd preference applicant applying today. The current priority date is in November 2008 according to the Bulletin. Based on this date, USCIS suggests that 18,841 cases are in line ahead of him with a pending Adjustment of Status application. Indians in the EB-2 category have about 2,802 green cards available for an issue each year. By this calculation, it should only take 6.7 years for Mr. Smith to receive his green card.

However, this is a gross miscalculation. So where does this discrepancy come from? The answer is that only partial information is being provided.

The USCIS inventory does not include all potential employment-based immigrants. As you can see, the inventory stops in May 2010. From May 2010 to the present there have been certified job offers given that will inevitably become pending I-485 applications as the inventory is updated.

How can we fill in the missing information to get a more accurate picture of the wait time for a green card? In Fiscal Year (FY) 2010, the Department of Labor certified 28,930 job offers for Indian nationals.[3] Each year after that there were 31,273, 30,278, 20,930, 35,092, 45,670, and 48,939 through FY 2017.[4] [5] This is a total of 289,071 labor certifications approved for just Indians since January 2010.

Approved Labor Certifications according to DOL

 2010

 2011

 2012

 2013

 2014

 2015

 2016

 2017

 TOTAL

28,930

31,273

30,278

20,930

35,092

45,670

48,939

47,959

289,071

In recent years, about 50% of all labor certification approvals were for positions requiring an Advanced Degree. For the purpose of this scenario we will assume 50% of the 289,071 labor certifications approved for Indians are for Advanced Degree petitions - a conservative estimate considering the actual percentage is likely higher for Indians (taking into account positions requiring a Bachelor’s degree plus 5 years of experience, which can also be considered part of the EB-2 category). After adjusting for the pending cases from before May 2010, this amounts to 142,772 EB-2 applicants with priority dates after May 2010.

Of the 140,000 green cards available for employment-based applicants each year, only 28.6% are allocated to the EB-2 category, or 40,040. This number is further divided by the country quota, which states that no more than 7% of the visas may be issued to any one country in a fiscal year. This leaves Indians in the EB-2 category with about 2,802 green cards to be issued each year.

However, we should remember that the approximately 142,772 EB-2 applicants we calculated did not include their family members. Let us assume that each of these workers with an approved EB-2 labor certification is married (which we have found to be true in almost every case). This changes the total to 285,545 potential applicants waiting to file an adjustment of status since 2010. As mentioned before, USCIS already reports 18,841 applicants waiting in line from 2008-2010. This means there are a staggering 304,386 total applicants from India needing green cards. That means Mr. Smith, who received a job offer and began the process today, may have 304,386 people ahead of him in line.

So, how long might that take? Remember, there are only 2,802 that can be granted each year. To grant green cards to all 304,386 potential Indian applicants in the pipeline, it could take 108.6 years. Considering the average human lifespan is only 79 years, this is quite literally longer than a lifetime.

Are there any factors that could reduce this waiting time? One thing to consider is that some applicants may leave the EB-2 pool by having their U.S. citizen children sponsor them after they come of age at 21 years old. A grim fact of the matter remains that some applicants may simply grow old and pass away, leaving available visas in their wake. From a more hopeful perspective, if demand in other categories is lower, it could possibly increase the number of EB-2 visas available. For example, while EB-2 is limited to 28.6% of green cards, any unused visas from the family-sponsored preference categories are added to the pool of available employment-based visas. However, these additional visas have been continually decreasing in recent years. There were 10,241 unused numbers in the family-sponsored preference classes in 2013, 4,796 in the year 2014, and only 338 in the year 2015.[6]  Although any visas not used up by the EB-1 category ‘trickle down’ to the EB-2 category, there have not been any such unused EB-1 visas since at least 2013.[7]  In fact, the number of unused EB-1 green cards available to ‘trickle down’ has declined drastically since 2013 as a result of more applicants opting for EB-1 to avoid the long wait times associated with the EB-2 category.

The public information from the Visa Bulletin and USCIS Inventory has lulled Indians into a false sense that the wait time is not that bad. However, it is likely that many applicants will submit their cases, grow elderly, and pass away from old age before they can ever enjoy the benefits of a green card.

It is the time that Indian nationals were made aware of the reality of the situation and lobbied for reforms that the current immigration system desperately needs. Some steps the government could take to improve the situation include:

  1.              Allowing recapture of green cards that were not used up in previous years.
  2.              Stop counting dependents as workers. Currently, spouses and children take up half of the green cards allocated to employment-based immigrants.
  3.              Eliminating the per-country cap.
  4.              Exempting selected categories from the cap, such as U.S. STEM degree graduates.
  5.              Reallocating the percentage of green cards available in each category (i.e. provide a larger percentage of the available green cards to EB-1 and EB-2)
  6.              Raising the cap above 140,000 for all green cards

[1] See https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-january-2018.html

[2] See https://www.uscis.gov/greencard/pending-employment-based-i-485-inventory

[3] https://www.foreignlaborcert.doleta.gov/pdf/OFLC_2010_Annual_Report_Master.pdf

[4] https://www.foreignlaborcert.doleta.gov/performancedata.cfm

[5] https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2017/PERM_Selected_Statistics_FY2017_Q4.pdf

[6] See https://www.dhs.gov/immigration-statistics/lawful-permanent-residents

[7] See https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2016.pdf