Over the past few years, so much of the immigration debate has centered around enforcement policies and the undocumented population. But there is another aspect to the debate that, until recently, received only a fraction of the attention: the legal immigration system. To be clear, AILA has long advocated for reforms to the United States legal immigration system which is saddled with arbitrary caps on temporary visas that fail to recognize market demands, and severe green card backlogs in both the family-based and employment-based categories. Without any significant reforms in nearly 30 years, the visa provisions outlined in the Immigration and Nationality Act are a veritable patchwork of provisions, many of which were enacted to only temporarily “fix” the issue du jour.
When it comes to high-skilled immigration, U.S. employers have for years struggled with a ridiculously low and rigid cap on the number of H-1B visas that are available each year, massive backlogs in permanent visas, and outdated procedures and requirements that place onerous burdens on employers and frustrate those seeking to build a permanent life in America. Collectively, the limitations of our high-skilled immigration laws put the U.S. at a great disadvantage when it comes to competing for talent in the global marketplace. And over the past year, it has only gotten worse as the Trump administration has focused intensely on reviewing all employment-based immigration programs with a jaundiced eye. Administrative changes that impact high-skilled workers, such as the withdrawal of long-standing policy memos, unannounced or sudden shifts in adjudication practices, and increased random audits and enforcement actions against law-abiding employers have significantly changed the landscape without any congressional involvement.
The lack of congressional and media focus on legal immigration changed last August when Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced the Reforming American Immigration for a Strong Economy (RAISE) Act, a bill that was endorsed by President Trump and later incorporated into his “immigration principles.” Despite its name, the RAISE Act would reduce legal immigration by half and replace our current immigration system with a points-based system. There is no doubt that our immigration system needs to be reformed but the RAISE Act is not the way to do it. In addition to gutting family-based immigration, the system proposed in the RAISE Act fails to take into consideration the needs of U.S. employers and would cripple the ability of U.S. businesses to grow and thrive. Our history has proven that immigration makes our country and economy stronger, and an immigration system that includes robust provisions to encourage and facilitate high-skilled immigration based on employer needs is essential to economic prosperity. The RAISE Act fails to recognize that reality.
A bill that does recognize that reality is the Immigration Innovation Act of 2018, introduced by Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) on January 25, 2018. If enacted, the bill, known as “I-Squared,” would make significant changes to the U.S. employment-based immigration system to facilitate high-skilled immigration. Among the many positive reforms offered by I-Squared are:
- An adjustable cap on H-1Bs that rises and falls according to market demands;
- H-1B cap exemptions and prioritization of H-1Bs in high-demand years for certain individuals with U.S. graduate degrees;
- Changes to the immigrant visa system to provide relief to those caught in the backlog and to accelerate the time when green card applications can be filed;
- Added flexibility for H-1B workers and those seeking green cards to change employers;
- The creation of a “Conditional Immigrant Visa” process for high-skilled workers whose employers wish to immediately sponsor them for a green card;
- Limitations on situations where an employer would be required to file an amended H-1B petition; and
- Requiring DHS and DOS to give deference to a prior nonimmigrant petition or visa approval involving the same employer and employee.
The bill also offers welcome protections for American workers by prohibiting employers from hiring an H-1B worker with the intent of displacing a U.S. worker or conditioning the U.S. worker’s pay or performance review on his or her willingness to train his or her H-1B replacement. Increased H-1B fees, with a fee accelerator based on increases in the market-based H-1B cap, would also mean more money for STEM-based training and scholarships for U.S. workers.
Though the majority of the bill is positive, a couple of well-intentioned provisions could have unintended negative consequences for small employers, start-ups, and emerging companies. For example, it appears that an employer with 20 approved H-1Bs who withdraws three petitions because the employees resign within three months of their employment would be required to pay $10,000 for each withdrawal, and if it happens again in subsequent years, $25,000 per withdrawal. Penalties of this nature could be devastating to businesses working through a tenuous growth stage, particularly when an employee’s decision to resign is something the employer can’t control. In addition, it appears that the bill would require employers with more than 50 employees, if more than 50% are H-1Bs, to conduct and document evidence of recruitment of U.S. workers for each H-1B petition, even if they have already sponsored the H-1B employee for permanent residence and must seek an H-1B extension solely because of processing delays or visa backlogs. Is it necessary to force employers to continually recruit for a position when recruitment is already part of the permanent residence process?
With these reservations, Senators Hatch and Flake are to be commended for this smart, thoughtful proposal on high-skilled immigration reform, which recognizes the critical role of immigration in fostering a strong and vibrant economy. Proposals such as I-Squared, which would actually lift America up, should frame the conversation about reforms to America’s legal immigration system, not proposals that only pretend to do so through a meaningless acronym such as RAISE.
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If you’re getting ready to file H-1Bs, you may find AILA’s “Getting Ready for H-1B Season FY 2019: Filing Tips and Pitfalls to Avoid” useful.