Brown: Beyond the sound bites: Employment-based immigration

With Americans heading to the polls for midterm voting, U.S. immigration policy remains a polarizing and divisive topic. The southern border continues to grab headlines; however, opportunities abound within the employment-based immigration system to address the demands facing our fragile economy. The current U.S. employment-based immigration system consists of a variety of temporary (or “nonimmigrant”) visa solutions, as well as pathways for employers to sponsor foreign workers for permanent residence (or “green cards”). Temporary and permanent visa solutions each experience their own highly regulated obligations, significant processing delays, inconsistent adjudications and numerical limitations impacting access to benefits. What is most revealing, however, is what is missing from our U.S. immigration policy. The following summary highlights existing solutions, as well as ongoing opportunities following years of volatility related to the global pandemic and shifting attitudes on the role of immigration within the U.S.

Nonimmigrant (temporary) visas

H-1B: The H-1B program, enacted by Congress in 1990 for specialty occupations (baccalaureate-level positions, generally), is often the only path available to employers seeking to sponsor foreign workers. H-1B sponsoring employers must attest to offered wage and working conditions. The program continues to face inadequate numerical limitations to meet decades of demand. The quota for new H-1B workers is immediately exhausted upon release of the 85,000 spots available each fiscal year. In anticipation of fiscal year 2023, for instance, more than 483,000 registrations were filed by employers seeking to sponsor a foreign worker. This lack of access to the H-1B program exists even with exemptions in place for institutions of higher education, nonprofits affiliated with such institutions, and other research and related entities.

L-1: Established in 1970, the L-1 program was meant to promote U.S. investment from abroad. It is available to foreign workers who have worked for a related entity outside the U.S. for a minimum of one year in a “specialized knowledge” capacity or as a manager or executive. Despite its intended purpose, employers often face strict scrutiny on the definitions around “specialized knowledge,” “managerial” and “executive,” resulting in highly subjective, inconsistent and delayed adjudications.

E-1/E-2: Treaty-based visa solutions are available based on qualifying treaties the U.S. maintains with about 80 countries. The E-1/E-2 visa program permits foreign nationals from such countries to carry out investment or trade in the U.S. if they will be employed in an essential skills capacity or engaged in supervisory or executive-level duties. The foreign national must have the same nationality as the country in the relevant treaty.

Free trade: The U.S. has also entered into several free trade agreements, which include opportunities for sponsorship of qualifying foreign nationals. Visas are available for foreign nationals from Canada and Mexico (TN), Australia (E-3), and Chile and Singapore (H-1B1), subject to treaty limitations. Such limitations vary depending on the agreement. For instance, the TN visa category within the United States-Mexico-Canada Agreement, or USMCA (formerly NAFTA), is only available for designated occupations, while the E-3 and H-1B1 visa programs more closely mirror the H-1B category. Most notably, each of these free trade visa solutions are only available to citizens of the relevant treaty country.

Other: A few additional employer-sponsored visa categories are open to athletes and entertainers (P-1), extraordinary ability workers (O-1) and religious workers (R-1), largely rounding out the majority of the employment-based, temporary visa solutions available in the U.S.

Unskilled/semi-skilled labor: Notably absent are robust visa solutions for “unskilled” and “semi-skilled” labor. While there are temporary options available for seasonal and agriculture workers, those programs consistently fail to meet the substantial demand. The H-2A program for agricultural workers and the H-2B program for seasonal workers are subject to significant regulation on working conditions, and the numerical limitations in place for the H-2B program are consistently exhausted well in advance of both winter and summer seasons. As echoed below on the discussion of permanent sponsorship, U.S. labor demands extend well beyond agriculture and seasonal work.

Entrepreneurs: Visa solutions for entrepreneurs and other job creators are also missing from current U.S. policy. Countless reports confirm that about half of all Fortune 500 companies were founded by immigrants or their children. There’s also a new analysis released by the nonprofit research institution National Foundation for American Policy finding that 55% of privately held, billion-dollar startups (so-called “unicorns”) were founded by immigrants and 64% were founded or co-founded by immigrants or their children. NFAP’s analysis also shows almost 80% of such unicorn companies “have an immigrant founder or an immigrant in a key leadership role, such as CEO or vice president of engineering.” Given the lack of visa solutions for entrepreneurs, successes are only coming after the foreign national has successfully navigated the U.S. immigration, system typically through the family-sponsored system, as a refugee/asylee, or through one of the employment-sponsored paths above as a traditional employee. In short, these successes are coming despite, not because of, our current policy choices.

The Biden administration has attempted to create some relief by rolling out an International Entrepreneur Parole program offering work authorization on a discretionary basis for business ventures deemed to provide a “significant public benefit.” With only Congress truly able to create new visa classes, this program remains underutilized considering a mere change in administration may result in its immediate dismantling.

Employment-based green card

Most employers seeking to employ foreign workers on a longer-term basis are required to undergo labor market testing to prove U.S. workers are unavailable and/or unqualified for the position offered to the foreign worker. Despite well-established labor shortages across virtually all STEM disciplines and in the education, food service, hospitality, construction, transportation and health care sectors, there are only two occupational classifications that have been formally designated by the U.S. Department of Labor as shortage occupations qualifying for exemption from market testing: nurses and physical therapists. Creating a system in which DOL has the authority to react to worker shortages more nimbly could go a long way in improving opportunities for employers to meet their needs for talent.

After careful and successful navigation of the rigors associated with labor market testing, employment-based green card sponsorship also requires consideration of a numerical quota. Based on a preference system established in 1990 and organized by the minimum education and experience requirements for the offered position, foreign nationals seeking a green card based on employment must refer to a monthly publication for guidance on when the final stage of the green card application may be filed. In addition to the preference schedule, the numerical quota also contemplates the applicant’s country of birth, with the stated purpose of promoting global diversity. Given the concentration of applicants from certain regions, this has resulted in a current backlog of 10-12 years for applicants born in India, for instance. Ironically, the outcome has done little to promote diversity because applicants are already present in the U.S., having immigrated on a temporary basis awaiting a green card from within the U.S. Instead, delaying final green card adjudication results in a postponement of realizing the sponsored immigrant’s full potential because many are reluctant to fully commit to the U.S. until green card is in hand.

Immigration in the U.S. has a long and complicated history, but other countries, including our neighbor to the north, are implementing sweeping pro-immigration changes to meet the global fight for talent. The U.S. will need to address the long-standing limitations in our current system to remain competitive. While modest changes to the immigration system have been accomplished through formal rulemaking, policy adjustments and periodic challenges in court, the last time Congress meaningfully addressed immigration policy, including the employment-based system, was more than 30 years ago. Lasting improvements in this country can only be accomplished through congressional action.•

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Jenifer M. Brown is a partner at Brown Glier Law in Indianapolis. Opinions expressed are those of the author.