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Controversial H-1B Visa and Green Card Legislation Before Congress

1.16.2019

The H-1B visa is an employer-sponsored nonimmigrant visa for highly skilled workers in so-called “specialty occupations". Specialty occupations are those which require the minimum of a US bachelor’s degree or foreign equivalent. It is especially popular with IT companies who hire thousands of such workers mainly from India and China.

Entitled the Immigration Innovation act of 2018, HR 6794 is a bill before Congress that primarily would affect the H-1B visa with a long-term goal of increasing investment in STEM for US students in K-12 and college. Homeland Security Secretary Kirstjen Nielson has also told the Senate Judiciary Committee considering the bill that US workers should not be forced to train their H-1B replacements nor should the foreign workers be exploited by being paid lower salaries.

If enacted, the law would remove the annual quota on holders of a US master’s degree or higher, which is currently only 20,000 per year. The proposed law creates a lottery prioritizing foreigners with US Master’s degrees or higher, foreign PhD’s, followed by those holding US STEM bachelor’s degrees. It also provides a grace period to allow H-1B visa holders to change jobs without losing status regardless of whether termination of their employment was voluntary or involuntary.

The bill seeks to protect US workers by penalizing employers who have more than 5 H-1B employees who work under 25% of the time the first year of hire, and importantly, prohibits employers from hiring an H-1B worker to replace a US worker. It also permits work authorization for spouses and dependent children of H-1B visa holders.

The bill changes the current harsh stance of the US Citizenship and Immigration Services (USCIS) reviewing H-1B and indeed all visa extension petitions by the same employer. Since 2017, the USICS has indicated that it will review such extensions de novo. The new legislation requires approval of an extension unless there was a material error in the first petition, a substantial change in circumstances, or if material information is discovered that adversely impacts the eligibility of either the employer or employee.

Turning to proposed green card legislation, HR 392, if enacted, would eliminate per-country limits for employment-based green cards. The bill also exempts the spouses and children of employment-based green card holders, holders of US STEM master’s degrees or higher, and extraordinary EB-1 green card holders from per-country limits. It would create a conditional green card for university-educated candidates by a process different from transferring an H-1B to a green card through the current lengthy and problematic method. A conditional green card would be issued if the employer can attest that no US worker is being displaced, that it first recruited US workers for the position, and agrees to pay not less than a $100,000 per year salary.

This bill is supported by Amazon, Deloitte LLP, Equifax, Inc., Hewlett Packard Enterprise, Microsoft Corp., IBM Corp., Salesforce.com, and Texas Instruments among others. In fact, its enactment would have a profound effect on Chinese and Indian skilled workers. The bipartisan Congressional Research Service, an independent research department of Congress, has determined that countries like China and India will dominate the green card market if per-country quotas are eliminated. With a 7% per country quota for India, the backlog is currently at almost 10 years, with 306,601 Indian citizens in line for green cards as of last April.

Aside from HR 6794 and HR 392, the Department of Homeland Security announced a notice of proposed rulemaking on December 3, 2018 requiring employers seeking an H-1B visa for advanced degree beneficiaries to first electronically register with the USCIS during a specific registration period. The proposed rule would count all registrations toward the number needed to reach the H-1B cap. Once a sufficient number are registered, the USCIS would first consider those holding advanced degrees, increasing the likelihood that most H-1B visas will in future be awarded to the most skilled and highest paid positions. It is estimated that this proposed process would effectively increase the number of foreign workers with a US master’s degree or higher up to 16%. Public comments to the rule were available for submission until January 2, 2019. The effective date of this proposed rule has not yet been published.

In sum, if Congress can ever agree, highest skilled foreign workers will benefit regardless of nationality, employers will benefit with more skilled workforce but will pay more for that privilege, US workers will be less likely to be displaced, and ultimately, greater emphasis will necessarily be placed on preparing US workers for sought-after STEM employment.

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