There are good reasons why America’s H-1B visa program for foreign workers is losing its appeal and in need of repair. Two problems, in particular, stand out. Let’s consider these problems and then consider seven alternatives for those who seek a work visa in the USA.
Problem 1: The Long and Winding Road
To apply for an H1B visa normally requires four applications. The first is to the Department of Labor to prove the foreign worker is to be paid the prevailing wage rate paid to U.S. workers in that location according to wage surveys. In addition, the employer must show that there are no current labor disputes at the job site. Normally the application can only be filed in early April each year. The second is with the U.S. Citizenship and Immigration Service (USCIS) to establish that the position offered normally requires a minimum bachelor’s degree in a specialty occupation such as engineering, accounting or interior designing, etc. In addition, except for a restricted few positions working in university and research settings, only 85,000 visas are available and only with a start date of October 1st. Usually more than double that number apply, so a lottery is run to choose winners. The third application, except for Canadians, is made to the Department of State at a U.S. Consulate overseas to obtain the H1B visa in the passport. Finally, the applicant applies to the U.S. Customs and Border Protection agent at the port of entry to be admitted. Four applications for one work visa! The process is overwhelming.
Problem 2: Green Cards For H1-B Visa Holders
Delays and backlogs regarding getting green cards keep holders of H-1B visas stuck in legal limbo for many years sometimes leaving them vulnerable to economic downturns. There are two reasons for this.
Firstly, an American employer must go through labor certification – a process in which the employer must prove he or she has made extensive efforts to find American workers and cannot find any, before applying to hire a foreign worker. Not every American employer is prepared to endure the extra cost and hassles of going through labor certification. Thus, foreign workers have no way to proceed down these lines.
Secondly, U.S. law imposes a limit on how many immigrants from any particular country can receive green cards in a given year. Under the per-country cap set in the Immigration Act of 1990, no country can receive more than seven percent of the total number of employment-based and family-sponsored preference visas in a given year. The argument is that this was the only way to ensure a diverse immigrant inflow that will ensure America is a vibrant country that promotes the diversity of its citizens and condemns racism of all forms.
Immigration Is Needed
A recent Brookings study said that “dozens of empirical studies have found that immigration benefits American workers.” This was also the conclusion of a recent Forbes article citing a National Bureau of Economic Research study. According to an older Bay Area Council study, every highly skilled tech position created generates another four job opportunities in other industries.
For these reasons, making the immigration process easier and more attractive to foreign workers is crucial to America’s economic growth and future. The H1B work visa program needs to be improved and more green cards need to be allocated to H1B visa workers. Meanwhile, however, what are the best alternatives for H1B workers until that is done?
What are the alternatives?
1. Cap-exempt H-1Bs
H-1B petitions filed by institutions of higher education, non-profit entities related to such educational institutions, and certain non-profit research organizations are exempt from the 65,000 visa cap and lottery. Therefore, these are prime targets for work visa seekers since the visas can be processed immediately without limit. This is really the only part of the H1-B visa program that works well and needs to be expanded.
2. Multinational Manager/Executive And Specialized Employee Visas
The multinational worker L-1 work visa allows managers, executives, and specialized knowledge workers of a multinational company that has an affiliated office in the United States to transfer these workers to the U.S. if they have worked for at least one year of the three years prior to entering the U.S.
3. OPT With Extensions
Optional practical training (OPT) allows U.S. college graduates from abroad one year of practical training–employment–in the field of study as part of the F-1 student visa. It can be extended for an additional 24 months if the H-1B position is a “STEM” position and the employer participates in the E-Verify online employment verification program. This often gives foreign workers four years of study, and one to three years of work time to figure out a way to stay in the U.S. permanently, such as through the H1B visa lottery, marriage, or a so-called PERM green card application.
4. Canadians, Mexicans, Chileans, Australians, And Singaporeans
The United States has, through specific trade treaties with individual countries, created other special work visas for nationals of these countries. The USMCA trade agreement makes TN work visas available to professionals who are citizens of Canada and Mexico. The E-3 visa benefits nationals of Australia. The H-1B1 is limited to citizens of Chile and Singapore. Each treaty creates different requirements and benefits and, in some cases, the visas can be even preferable to the H-1B visa.
5. Treaty Trader and Investor E-1 and E-2 Work Visas
These E-1 and E-2 work visas allow persons from countries with whom the U.S. has entered a specific trade treaty to come to the U.S. to pursue business or to start or purchase a commercial enterprise that will benefit the U.S. economy.
6. EB-5 And EB-2 National Interest Waiver Options
For those who are in the U.S. in another status, such as with B, F, E, J, or H visas, investing $ 800,000 in a so-called set-aside regional center EB-5 project facilitates priority processing and enables applicants to obtain employment authorization in the process. Similarly, individuals who have a master’s degree or a bachelor’s degree and five years of progressive experience in an area and would like to develop a business can apply for a green card under the EB-2 National Interest Waiver as well as for adjustment of status and employment authorization.
7. Spousal Work Authorization
Sometimes when the principal immigrant cannot find a visa that works, it is helpful to consider the spouse as the principal applicant instead. In addition, spouses of L-1, E-1, E-2, and J- 1 visa holders may be eligible to apply for employment authorization, as are spouses of H-1B visa holders with an approved I-140 or an H-1B extension beyond 6 years.
Other options include O-1, J-1, and H-3 visas as well as Entrepreneur Parole. But these don’t merit the same attention for the average immigrant. Your immigration attorney can sort these out for you. Then again, if none of these options work, foreign applicants just have to put up with the hardships of the H1B visa program until it is updated.