A Wolf in Sheep's Clothing? : 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 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.

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.

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.

The proposed changes to the H-1B visa classification would greatly obviate the incentive for businesses to rely on H-1B workers. First, the plan proposes to revise wage determination requirements without further elaboration. While not specific, the past practice for revising prevailing wage determinations has been to either (1) increase the wage required, or (2) increase the time to process a request to the government to decide a prevailing wage for a potential H-1B position to a snail’s pace. Both changes are detrimental to H-1B employers. Artificially raising the prevailing wage for a position means that it will cost an employer much more to hire an Alien than what an American worker would accept for the job. Secondly, because time equals money, increasing the time to determine a prevailing wage from minutes to months will undoubtedly have a drastic effect on a company’s decision to hire an H-1B worker.

The proposed plan also requires internet posting of the H-1B position. One is left to wonder what type of posting this would be. Would the posting be to a government or private database where the immigration authorities or the general public could view such postings for H-1B workers by companies? Would the internet posting be a recruitment type of mechanism such as internet posting under the PERM recruitment of employment based Green Cards? What is known is that any type of posting will be more costly in time and expense than postings under the current system.

The proposed plan would also lengthen US worker displacement protection and apply certain requirements that are now only binding on H-1B dependant employers to all H-1B employers. Among such possible changes are prohibitions on hiring H-1B workers for 90 days before or after a layoff, requirements to offer the job to American workers before foreign nationals and heightened employer attestations, punishable by penalties, regarding not displacing American workers. None of these options are appetizing for human resource professionals, business owners or managers.

The plan would also limit the number of H-1B workers that an H-1B employer could hire. Such a numerical limitation would be a drastic departure from the current H-1B format that requires no numerical limitation at all and severely alter the manner that many American companies conduct business.

The plan also outlines specific requirements and penalties for employers of L-1 visas. First, absent a waiver, L-1 beneficiaries holding specialized knowledge will only be permitted to serve for one year if they are stationed at a worksite other than their employer’s. Additionally, L-1 worksite requirements, working conditions and rates will be altered. Finally, penalties and enforcement for non-compliance will be increased.

As for enforcement in general, the Department of Labor would be given increased authority, even requiring mandatory annual visitations for companies hiring large numbers of H-1B or L-1 workers. Finally, and predictably, penalties for non compliance will be increased.

While this proposed plan for immigration reform purports to increase opportunities for highly skilled aliens in America, the plan actually disguises a scheme for shredding the H-1B and L-1 visa programs. Good immigration policy requires incentives to attract the world’s best minds to our shores. The current system of encouraging temporary than permanent employment of highly skilled persons, though imperfect, accomplishes this goal. This innocent looking proposed plan actually proceeds to attack the H-1B and L-1 programs in a fashion never seen since their creation. These programs are the primary way for foreign nationals to introduce themselves to U.S. employers and by making such drastic changes, U.S. employers will be cut off from the introduction to highly skilled aliens that the H-1B and L-1 visa categories provide. This plan merely disguises the intent to slash employment of highly skilled foreigners through the disguise of easier to obtain permanent employment. Hopefully the legislative process will remedy the inconsistencies of policy rampant in the plan as currently provided.

In the ever changing field of immigration, experience and innovative representation is more important than ever. If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles all matters concerning family immigration. Please contact us and experience how our law firm can assist you in your immigration matters. The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.