A Wolf in Sheep's Clothing? : Columbus Immigration Attorney Discusses Comprehensive Immigration Reform's Effects on the PERM process, Green Cards as well as H-1B and L-1 Visas
U.S. Senators from the Democratic Party have recently released the first serious outline for eventual Comprehensive Immigration Reform legislation. This plan not only re-writes the rules regarding the attainment of citizenship with regard to those aliens who have entered without inspection, but it also alters the legal landscape for gaining an employment based green card through the PERM process as well as H-1B and L-1 temporary visas. While some of the changes that have been outlined largely appear to bring long needed adjustments to the employment based visa system, there is cause for concern regarding certain aspects of the plan relative to employment based immigration. The American public, petitioning employers as well as highly skilled persons from around the world are left to wonder, does this comprehensive immigration reform plan really do more to attract the world's best and brightest, or does this plan discourage highly skilled people from working in the United States. Is this plan for Comprehensive Immigration reform a wolf in sheep's clothing?
The Effect on Educated Foreign Workers
The central theme of the proposed immigration plan, relative to employment based immigration, is to encourage highly skilled laborers to immigrate permanently, while at the same time discouraging temporary visas for highly skilled persons. This goal is accomplished by simply systematically removing restrictions for obtaining a Green Card for certain highly skilled foreign nationals, while a bevy of crushing restrictions will be imposed on employers hiring temporary workers under the H-1B and L-1 categories. (See page 18. Section A.) Whether it is the unintended or simply unspoken net effect of the proposed policy changes, the number of highly skilled persons approved for employment based immigration will be reduced under this proposed plan in the form that it is written.
First the Good News
This proposed plan for immigration recognizes that the current system of assigning Green Cards for highly skilled workers on a country by country basis has few if any positive policy aspects. Under the new plan, per-country employment based immigration caps will be abolished. In contrast, the current system nonsensically imposes a five year waiting period for obtaining a Green Card on people from India or China who possess a master's degree. Additionally, Employment Based Green Cards for persons from Mexico holding a bachelors degree are currently unavailable at all, while persons with bachelor's degree from any other country in the world could theoretically obtain a Green Card, eventually. Removing the per-country preference for employment based immigration for highly skilled individuals is a welcome and needed change to the current immigration scheme.
Additionally, the proposed plan simplifies the employment process for aliens who hold advanced degrees from American universities and enter the United States with a valid offer of employment from an American employer. This change is intended to remedy the incongruence between America's open pursuit of foreign nationals to study in American Universities, but refusal to allow the same talented people to remain to work and live.
This plan also removes the "non-immigrant intent" requirement to many of the visas that are given to foreign national students. Under the current plan, most student visas require that the student have no immigrant intent when studying in the United States. This requirement is fulfilled by not allowing such students to immediately apply for immigrant visas in most situations. Some visas even require students to return to their country of origin for a period of time before returning to the United States after they have graduated.
Part of the legislative goal of the old policy was to promote American ideas by forcing students to return home and use the knowledge, skills and American experience in their native countries, thereby expanding the American cultural influence to the world. At this point in time, most countries have been exposed to American ideas and ideals and have accepted or rejected the same. Therefore, it is high time that America not snub the very people that America educates here by requiring them to move back home or wait for some ridiculous period before receiving a Green Card. The proposed plan would do much to remedy this outdated policy objective.
... and then the Bad News
The H-1B and L-1 system of temporary visas for skilled workers has come under increased scrutiny for years. Many administrative policy changes have been levied upon these visas categories in order to prevent perceived fraud, abuse and injury to Americans seeking jobs. The proposed plan would now set in stone tougher requirements for obtaining and maintaining such visas through legislation as well as imposing increased penalties on those businesses and employees attempting to obtain an H-1B or L-1 visa without adhering to the law.