US Businesses hurting for more EB green card numbers

US Businesses hurting for more EB green card numbers

 

As the Senate is poised to begin full debate on the Gang of 8’s proposed reform bill, it is important to realize just how many problems our current system causes American businesses. 

 

The H-1B visa, which is the standard work visa for professionals with a 4 year BS/BA degree,  is limited to 65,000 per year (with an additional 20,000 set aside for employees who have advanced degrees from US universities).  Many of these H-1B employees are sponsored for green cards, but for those with only a BS or BA degree, the green card category is backlogged to early 2009 (and to early 2003 for Indian nationals, and late 2006 for Filipino nationals).   Although H-1B status can be good for up to 6 years, employers do not want to make the green card decision until the employee has been sufficiently evaluated by all concerned.  Sometimes the employee needs to work in more than one position for everyone to decide it is a good fit.   Where that takes more than 3 years, problems with continuing work permission can arise.   The same is true if an employee is hired after he has been in the US in H-1B status with one or more other employers and does not start work for the new employer until after the 5^th year in H-1B status.

 

For instance, if the employer files the PERM case  at the very beginning of the employee’s 5^th year with the company, and if DOL issues an Audit, the case can drag on beyond the end of the employee’s sixth and final year in H-1B status.   The employer then has to begin using very creative strategies, such as filing for additional time in H-1B status, based on all of the days that the employee has been outside the US during his six years in H-1B status.   This can result in the employee “recapturing” H-1B time and therefore being able to remain in the US longer than six calendar years, but it may not give him enough time for other extension rules to kick in and give him a 7^th or 8^th year in H-1B status. 

 

If the employer is lucky enough to have an employee who worked for a foreign affiliate, it sometimes is possible to move the employee into a new work visa status (L-1) altogether.   However, this option is not very common, and even if it exists, the only time it really can benefit the parties is where the employee can be moved into a managerial position with the US employer.  Even then, the benefit is not for long, since L-1A employees are entitled to a total of 7 years of authorized stay, and there are no extension rules beyond that end date, as there are for H-1B employees.   

 

Where this is the case, the employee can be given a 7^th year, and if the PERM case is approved before the end of that 7^th year, the employer then can petition for the employee to move back into H-1B status and be given additional periods of stay in H-1B status, one year at a time.

 

As noted above, sometimes  these options are not available, as where the employer hires the employee too late and cannot show that the PERM case has been pending for a full year (the one year mark activates the rule that allows the employer to file for  a 1 year H-1B extension).  In that situation, the employee and his or her family may have to leave the US for a period of weeks or months, causing the employer and the employee significant disruption and career delay.    In the worst case scenario, the employee may return home for good.  This is happening more and more, as India and China, as well as many countries in Europe and South America compete for the highly skilled H-1B workers who have been trained here (and many times educated here) for years.   Canada also is taking bold steps to recruit these talented and very frustrated workers. 

 

The pending Senate reform bill, S. 744, contains good provisions for increased numbers of green cards in the employment based system.  If these provisions are passed into law, they should reduce the current green card backlogs, which should help many employers and employees avoid the type of turmoil and non-productive job changes that are required today under our antiquated system.

 

At the same time, Congress should consider allowing H-1B employees to file for additional 1 year extensions of stay as long as a PERM case is filed at any time prior to the end of the sixth year in H-1B status.   The same should be true for anyone in L-1A or L-1B status, because frequently these workers have to use the same, badly backlogged green card categories.  

 

H-1B and L-1A/B workers are the backbone of our STEM occupations in myriad industries in the US.  We lose them at our peril, and the losses become more frequent every day that Congress delays.

 

Best

 

Gerry Chapman