Our Dysfunctional H-1B Lottery

April 29th, 2016

April 1 marks the beginning of the H-1B visa application process, when U.S. companies apply for non-immigrant visas to hire high-skilled foreign workers in specialized fields. For the fourth year in a row, the cap for visa petitions was reached in just a few days’ time, with the window for FY17 applications reaching capacity on April 7.

Each year, the U.S. Citizenship and Immigration Services (USCIS) limits H-1B acceptances to 65,000 for skilled foreign workers who hold at least a bachelor’s degree and 20,000 for workers with a master’s degree or higher. Once the combined 85,000 cap is reached, the applications are put into a computerized lottery, their fate completely out of applicants’ hands.

In 2016, nearly 236,000 H-1B applications were submitted — 3,000 more than 2015 and significantly more than the 72,500 in 2014. This push shows the demand for foreign workers is continually increasing, with the growing tech industry generating some of the highest demand.

Contrary to popular belief, employing foreign-born workers alongside native workers could actually increase the total number of jobs in the U.S., with job creation steadily rising as more foreign workers are allowed in the country. This, in turn, may increase the GDP significantly over the next two decades.

To fully reap the projected economic benefits, the process must be changed. The current H-1B application process is grossly outdated, relatively unchanged for nearly 20 years. Without a green card, foreign workers can find it difficult to accept a promotion or change employers.

Updated regulations and a higher cap for applications are just a few ways the H-1B visa program can begin to improve the lives of the foreign workers hoping to find specialized jobs in the U.S. However, comprehensive immigration reform helps the U.S. benefit from these workers — and fuel greater economic growth beyond the H-1B program

Comment » | Immigration Policy Center

What Would Trump’s Immigration Plan Really Cost the U.S.?

March 30th, 2016

In the 2016 presidential race, the people of the United States are witnessing campaigns and talking points, along with the sheer number of candidates, like no other race in recent history. GOP frontrunner Donald Trump most often makes headlines for his language, especially toward immigrants, and his support for violence against those who disagree with him.

One of Trump’s most controversial plans involves sending all undocumented immigrants back to their home countries and building a wall on the U.S-Mexico border. Many of Trump’s devotees are just as supportive of the plan as he is.

 Nearly 11 million undocumented immigrants currently live in the U.S., making up 5.1 percent of the labor force as of 2012. In a Trump administration, they might be rounded up and sent “home,” leaving thousands of jobs open. This does not mean a sudden surge of jobs for native-born American workers — rather, Americans may see fewer jobs and no raises. The service industry as we know it would collapse, as an estimated 35 percent of service industry jobs are made up of undocumented workers, according to Pew Research analyses based on Census data.

The actual process of deporting all 11 million or so undocumented immigrants is a costly plan, besides the blow the economy would take with the open jobs. In the two year timeframe that Trump is proposing, the overall cost would add up to at least $400 billion dollars, along with reducing the U.S. GDP by $1 trillion. Why such a high cost? The process of detaining undocumented immigrants, trying them in court and transporting them to their home countries is not built for a mass deportation; the number of federal agents would need to increase to 90,000, much higher than our current 4,000 agents. Detention facilities would require an increase in beds from 34,000 to nearly 348,831 beds, with 1,300 new courts needed to try all the individuals facing deportation. This, in turn, would require 30,000 more attorneys. The actual deportation itself would require about 87 buses and 47 chartered flights to be sent out every day for two years.

In addition to all the combined setbacks of a mass deportation, one of Trump’s biggest plans — building a wall between Mexico and the U.S. — would only add more to the financial burden the U.S. is facing. Although Trump and his supporters are adamant about making a border wall paid for by Mexico a reality, Mexican Treasury Secretary Luis Videgaray said, “Mexico will under no circumstance pay for the wall Mr. Trump is proposing.” The cost for the wall alone, based on the cost of highway panels, is about $10 billion — not including other factors like surveillance, labor, equipment, and security.

Trump’s plan to “make America great again” fails to acknowledge that much of the greatness that we know today can be credited to immigrants, both documented and undocumented. We’ve seen just fractions of the costs of Trump’s immigration plan, and his plans to cut off federal grants to sanctuary cities and triple the number of Immigration and Customs Enforcement officers only adds to the underlying economic problems the U.S. faces. What’s more, Trump is calling for a moratorium on green cards for foreign work, and could likely make the already complicated and drawn out process of legal immigration even more difficult.

Even so, immigrants, Mexican or otherwise, will not stop coming to the United States. Turning them away or ramping up security will help neither our economy nor those looking to live in the U.S. Under a Donald Trump presidency, the strides taken toward comprehensive immigration reform will likely be in vain, which we must keep in mind when voting in November. We know the positive impacts immigrants make on the U.S. economy through their entrepreneurship. Deporting undocumented immigrants and putting a hold on H1-B visas will not help the country continue to grow; comprehensive immigration reform will allow us to see America and its people become even greater.

Comment » | Customs and Border Protection, Department of Homeland Security, Immigration and Customs Enforcement, Immigration Policy Center, Immigration reform

How Cities Can Foster Growth with Immigrant Entrepreneurs

February 25th, 2016

Immigrant workers are far more entrepreneurial than many people realize. Immigrants have founded 18 percent of all Fortune 500 companies, and make up 18 percent of overall U.S. business ownership. Through a variety of businesses, immigrants are creating more jobs for American workers.

Many immigrants own Main Street businesses, such as restaurants, grocery stores and clothing stores. While many immigrants find themselves without resources to start these endeavors, some cities with large immigrant populations are developing programs to help these would-be business owners access the tools they need.

Historically, many immigrants have come to Chicago. Currently, the city’s Little Village neighborhood is home to the largest Mexican community in the Midwest, with a thriving commercial corridor along 26th Street. In fact, after downtown Chicago’s Magnificent Mile business, the 26th Street commercial corridor is the city’s second largest contributor to business tax revenue .

To foster similar development (and tax revenue), representatives from communities and sectors across the city developed the Chicago New Americans Plan to capitalize on immigrants’ potential as business owners. Through the plan, new programs help provide immigrants with resources to start their own businesses. For example, the Restaurant Startup Guide and program simplifies the business application process and specifies zoning and permit particulars, helping expedite restaurant launches.

While Chicago has served as a well-known immigrant hub for generations, other cities are now welcoming new immigrants. Dayton, Ohio created the “Welcome Dayton” plan to integrate these new residents into the community. Along with this, the Ohio Small Business Development Center, as part of the federal Small Business Administration, helps immigrants overcome the barriers to starting a business and bridge the gaps between community groups to help potential entrepreneurs learn about valuable resources.

Similarly, Nashville, Tennessee is also steadily developing resources to extend its welcome mat to immigrants. Groups like the Tennessee Immigrant Refugee Rights Coalition and Conexión Américas are working to educate immigrants on business ownership. Since its inception in 2009, the Mayor’s New Americans Advisory Council has transformed from bridging the city’s immigrant communities and the Metro Government to become the Nashville Mayor’s Office of New Americans. The office helps immigrants access resources for economic and educational opportunities.

While these cities’ welcoming actions are laudable, they’re also driving important conversations about what cities and immigrants want and need. Cities seeking the benefits of immigrant entrepreneurship are finding great value in offering resources to help immigrants launch new businesses. Beyond the city’s revenue streams, entire communities benefit from a strong small business climate

In turn, pairing comprehensive immigration reform with these expanded entrepreneurship programs will benefit everyone: immigrants, cash-strapped cities and communities.

Comment » | Immigration Policy Center, Immigration reform

How Does Immigration Really Affect the U.S. Economy?

February 5th, 2016

As of 2013, nearly 41 million immigrants live in the U.S., about 13 percent of the total population. Nearly 11 million of those individuals are undocumented. Through these immigrants, the U.S. is still a melting pot of ethnic and cultural diversity, while immigration itself remains a heated issue.

Debates on immigration often entail discussing the impact immigrants have on the U.S. economy. Increasingly, research finds that the economic impacts are positive.

Nearly 26 million foreign-born workers are in the U.S. labor force, including both lawful permanent residents (LPRs) and undocumented or unauthorized immigrants. Within the same workplace, it’s common for foreign-born workers to work side by side with native-born workers. These two groups tend to complement each other, rather than taking away jobs for native-born workers.

In 2013, Americas Society/Council of the Americas and the Fiscal Policy Institute reported that foreign-born workers made up 18 percent of overall U.S. business ownership, with 28 percent of Main Street business — such as grocery stores, restaurants and clothing stores — owned by foreign-born workers. These small businesses create jobs while serving their communities.

Many of the jobs employing foreign-born workers fall in the STEM (science, technology, engineering and math) fields, where talent supply has not kept up with demand. With the unemployment rate in these fields so low, and the demand for STEM workers so high, employing foreign-born workers has little effect on the unemployment rate of native-born workers.

 Research finds that leveraging foreign-born workers in STEM fields tends to create jobs. A 2012 report from the Information Technology Industry Council, the Partnership for a New American Economy and the U.S. Chamber of Commerce found that, “[E]very foreign-born student who graduates from a U.S. university with an advanced degree and stays to work in STEM has been shown to create on average 2.62 jobs for American workers — often because they help lead in innovation, research and development.”

In fact, 18 percent of all Fortune 500 companies were founded by immigrants. These companies, such as Verizon, Procter & Gamble, eBay, Google and Comcast, have generated nearly $2 trillion in annual revenue as of 2010, with 3.6 million workers worldwide.

Overall, foreign-born workers contribute positively to the U.S. economy, greatly outweighing the negatives cited by anti-immigration activists. Highly-educated immigrants create more jobs, often though their own companies, fueling economic growth that is sometimes overlooked during the heated immigration debate. With the push for comprehensive immigration reform growing stronger, the economic benefits speak volumes. As the nation moves forward from the Great Recession, let’s not lose sight of positive impacts on the economy — immigration included.

Comment » | Immigration Policy Center, Immigration reform

DHS Publishes Major Regulation on High Skilled Foreign Workers

January 4th, 2016

On December 31, 2015, the Department of Homeland Security (DHS) published a massive proposed regulation addressing both nonimmigrant working visa categories and green card sponsorship by employers. Comments on the proposal must be filed within 60 days.

DHS refers to the proposal as “Improvements Affecting High-Skilled Nonimmigrant Workers.” While the proposed regulation does contain some positive changes, there are other provisions that will be a step backwards from current practice (i.e., some EAD processing) or will fall far short of the promises made by President Obama in his November 2014 announcement on Executive Action on business immigration.

Job Portability for Certain Adjustment of Status Applicants

Under existing law when a foreign national has an approved immigrant visa petition and an adjustment of status application that has been pending for more than 180 days they may change jobs or even employers so long as the new position is the “same or similar” to the position for which an immigrant visa petition was previously approved.

The proposed regulation provides that an immigrant visa petition for EB-1 (but not “extraordinary ability”), EB-2, or EB-3 remains valid if the petition is approved and either:

  • The employment offer from the petitioning employer is continuing and remains bona fide; or
  • The beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer listed in the approved petition, the application for adjustment of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked. A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.

A new supplementary form to the application for adjustment of status (Form I-485) will assist the Department in adjudicating “same or similar.” There is no fee attached to the supplement but DHS may consider a fee in the future.

The proposed regulation contains the following language modestly expanding the current DHS interpretation of “same or similar”:

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

Note: The proposed regulation does NOT expand portability to those foreign nationals who are the beneficiary of an approved I-140 immigrant visa petition but who do not have an I-485 application for adjustment of status that has been pending for more than 180 days. For both employers and foreign national employees, this is the most disappointing aspect of the proposed regulation. The proposed regulation does not change the existing requirement that a new PERM labor certification and I-140 immigrant visa petition must be approved for any material change in job duties.

Retention of Priority Dates

The proposal clarifies that the priority date of a properly filed employment-based immigrant visa petition that does not require a labor certification is the date the completed, signed petition is properly filed with DHS.

The priority date in an EB-1, EB-2, or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Note: If the prior I-140 petition can be revoked by DHS if they determine the earlier petition was approved in error then uncertainty will continue on the ability of foreign nationals to recapture an earlier priority date.

Changes to Rules on Revocation of Approved Immigrant Visa Petitions

The proposed rule also provides that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability, and (3) extensions of status.

Exception to 6-year maximum stay rule for certain H-1B nonimmigrants

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 3-year increments, until USCIS adjudicates the adjustment of status application, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is already over-subscribed. This applies only to the principal beneficiary and not any dependents who may also be in H-1B status.

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status if 365 days or more have passed since the filing of a labor certification application or employment-based immigrant visa petition. Extensions are generally available until a final decision is made to grant or deny the labor certification application or immigrant visa petition, or to grant or deny permanent resident status.

Licensure

Under the proposed regulation, DHS may approve an H-1B petition for a 1-year validity period if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license absent evidence that the beneficiary has been issued a social security number or granted employment authorization. A beneficiary who has been approved for a 1-year validity period may not obtain an extension of H-1B status without proof of licensure.

H-1B Cap Exemption Provisions

The proposed regulation implements current agency guidance and codifies which

H-1B nonimmigrants are exempt from the cap if they are employed directly by: (a) an institution of higher education, (b) a nonprofit entity related to or affiliated with such an institution, (c) a nonprofit research organization, or (d) a governmental research organization.

Miscellaneous H-1B Provisions

The proposed regulation implements current agency guidance and authorizes:

  • H-1B nonimmigrants who are beneficiaries of new H-1B petitions seeking an amendment or extension of their stay in H-1B status to commence new or concurrent employment upon the filing of a non-frivolous H-1B petition.
  • H-1B beneficiaries to recapture time spent outside the United States during the validity of an H-1B petition.

Grace Periods

The proposed rule provides a 10-day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

It also authorizes a one-time grace period, up to 60 days, curing the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN nonimmigrants whose employment has ended. Such nonimmigrants may seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.

Employment Authorization (EAD Cards) for Certain Employment-Based Nonimmigrants

The proposed regulation permits one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition; (3) does not have an immigrant visa number immediately available under the quota; and (4) can demonstrate compelling circumstances that justify an independent grant of employment authorization.

A limited number of individuals will be able to demonstrate compelling circumstances justifying an independent grant of employment authorization. The fact that the individual is approaching or has reached the statutory maximum period of time in nonimmigrant status is not deemed to be compelling. Employment authorization generally would not be available if the tendered compelling circumstances are within the individual’s control.

The proposed regulation does not define “compelling circumstances” in order to “retain flexibility” but DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change:

  • Serious Illnesses and Disabilities. The nonimmigrant or his or her dependent is facing a serious illness or disability that entails moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.
  • Employer Retaliation. The nonimmigrant is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency or court, and the employer has taken retaliatory action.
  • Other Substantial Harm to the Applicant. Due to compelling circumstances, the nonimmigrant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm.
  • Significant Disruption to the Employer. Due to compelling circumstances, the nonimmigrant is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.

The proposal prohibits employment authorization (initial or renewal) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year beyond the date on which immigrant visa numbers were authorized to be issued to individuals with the same priority date for the relevant employment-based category and country of nationality. The proposal also prohibits employment authorization if the applicant has been convicted of a felony or two misdemeanors.

The proposal requires biometrics and payment of biometrics fee. Also, it extends employment authorization eligibility to those dependent spouses and children who are also present in the United States in nonimmigrant status, but only if the principal spouse or parent is granted employment authorization under this rule and such authorization has not been terminated or revoked.

Note: Obtaining an EAD under this provision would require relinquishment of nonimmigrant status, thus restricting the ability to change status in the future. Also, the proposal does NOT provide the blanket EAD eligibility for all those with an approved I-140 immigrant visa petition that many immigrant advocates had hoped for.

Employment Authorization (EAD Card) Adjudication

 The proposed regulation authorizes an automatic 180 day extension of EAD of employment authorization if:

  • The individual files a request to renew his or her EAD prior to the expiration date.
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for Temporary Protected Status.
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

The 180-day extension is automatically terminated upon issuance of a decision denying the individual’s renewal application, upon written notice to the applicant, notice published in the Federal Register, or any other applicable authority.

The expired EAD, in combination with a Notice of Action (Form I-797C) indicating timely filing of the renewal EAD application would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

The proposal removes the current regulatory requirement that DHS complete the adjudication of EAD applications within 90 days of receipt and the requirement that it issue interim EADs with validity periods of up to 240 days when such an application is not adjudicated within the 90-day period.

DHS will instead address processing timeframes through operational policy guidance that reinforces the Department’s continued commitment to a 90-day processing timeframe and provides recourse to individuals whose case is nearing the 90-day mark, including the ability to contact USCIS to request prioritized processing.

Note: DHS cannot process EAD applications in a timely basis and their approach to “fixing” the problem is to remove the 90-day mandate and treat EAD extension applications like H-1B extensions for I-9 purposes. This should work for those seeking an EAD extension but is likely bad news for those filing an initial EAD application such as newly arrived L-2 spouses.

Comment » | Department of Homeland Security, H-1B, I-129, I-140, I-485

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