PERM and H-1B Visas for Indian Nationals: More Double Talk from the Executive Branch

It is readily apparent that in the few weeks leading up the presidential election, neither President Obama, nor former Governor Romney are willing to commit themselves to any firm and unequivocal stance on employment based, legal, immigration. This reluctance to take a stand further frustrates the thousands of Indian nationals and their employers who have undertaken the emotional, financial and time investment of who have placed themselves at the mercy of the USCIS, US Department of Labor and US Department of State though use of the current employment based preference system. However, while explicit pledges will not be forthcoming from either the current or the potential future president until the elections have passed, their subordinates continue to make the true stance of the candidates known through their actions and interactions with foreign dignitaries. Recent comments from Timothy Geithner, secretary of the treasury (and fifth in the line of succession to the president) to his counterpart in the cabinet of India are indicative of this phenomenon.

Speaking at a joint press conference with the Finance Minister P. Chidambaram in New Delhi on October 9, 2012, Secretary Geithner commented on the future of bi-lateral investment between the two countries, stating that “…[Y]ou [will] see a significant expansion of the role played by Indians and Indian companies in the American economy.” He went on to say “I think we’re at the early stage, even acknowledging and recognizing the huge benefits to the American economy already of the scale of Indian investment and Indian talent in the United States.”

Under current immigration law, the only way for US companies to invest in the Indian talent mentioned above on a permanent basis is to sponsor an Indian national for permanent immigration. This sponsorship in turn almost always requires the employer to triumph over the three headed monster known as the PERM process. However, due to the current policy only 140,000 per year, no more than 7% of this total going to any one country per year, there is a backlog of high skilled Indian Nationals who have reserved their place in line to receive a visa, but no visa is available for them because the demand exceeds the supply by thousands of visas per year.

H-1B visa applicants find themselves in a similar situation. Currently, only 65,000 H-1B visas for temporary-high skilled workers are made available per year, with an additional 20,000 made available to persons holding a US master’s degree (colleges and Universities are given unlimited visas) In recent years, this quota has not been met few a few months after the date that applications are accepted, however, with the economy improving, it is anticipated that this quota could be met with over 85,000 applications on the first day that filing is available.

The simple translation of what Secretary Geithner has stated above in real policy change language is that the administration would like to see an increase of the total number of visas allocated per year. Only an increase in visas made available as a whole would allow for the investment in Indian talent that the secretary has pointed out. Recent proposals to do away with the per-country limitation of 7% on permanent visas per year would only serve to place every employment based visa preference category from every county into a backlog.

The same solution should be applied to the H-1B quota, which could be increased to allow more highly skilled Indian nationals into the county to meet the demands of US industry.

Both political camps then seem to recognize the importance of expanding the employment based immigration quotas to include more Indian foreign nationals. The Republican party, while traditionally restrictions in its immigration policies, is supportive of initiatives that make businesses more profitable; such as attracting the best and brightest foreign nationals to meet business’s IT demands. The Democratic Obama administration, while traditionally protectionist of US workers, seems to recognize that investment in talent from India is a long term policy goal that meets the needs of both countries.

With the unemployment rate in the US hovering around 8%, no politician is willing to take the risk or bear the burden of explaining to the American public that investment in Indian talent is good for the economy in the US. With unemployment in the IT industry well below the national average, at a healthy 4%, employment based, legal, immigrants do not harm but rather help America. It is clear that both candidates would like to see the expansion of visas for Indian nationals be implemented, it is just a matter of who will have the courage and fortitude to see results carried out.

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 various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, the law firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.