A Guide to H-1B and Green Card Reform

There is bipartisan interest in Congress in reforming high-skill immigration. New legislation is on its way, and here’s what to watch for. What bills have been introduced or are coming?
In the House, the most important Democratic initiative is from Zoe Lofgren (D-Calif.), whose district includes Silicon Valley. Her bill would make green cards available to students who earn advanced degrees in science, technology, engineering and mathematics — the so-called STEM fields. However, it isn’t expected to go anywhere.

The person to watch instead is Rep. Lamar Smith (R-Texas), who heads the House Judiciary Committee. Smith appears interested in some limited immigration changes expected in a bill from Rep. Jason Chaffetz (R-Utah). Chaffetz’s bill, which is due “soon,” is expected to call for elimination of the per-country limits on employment-based visas — as green cards are officially called.

The U.S. has a cap of 140,000 employment-based visas a year. Spouses and children of the workers are counted against that cap. The U.S. limits the number of green cards per country to no more than 7% of the total available visas. In India, where there is a big demand for green cards, the wait for one can be as long as 10 years. This is significant in terms of the availability of green cards to immigrants across the board.

If the per-country cap were eliminated, green card applicants who have been waiting the longest might see their expected waiting times reduced. But applicants from countries with relatively short wait times might find themselves waiting longer. Tech companies might support elimination of the per-country cap, since that would likely increase the availability of workers from China and India. Employers will take what they can get, but they might be hoping for something better out of the Senate.

Sen. Charles Schumer (D-N.Y.), who heads the Senate subcommittee on immigration, said this week that he intends to introduce legislation that, similar to Lofgren’s bill, will “staple” green cards to the diplomas of people who earn degrees in STEM fields. He is also promising reform of the H-1B visa process in his bill.

Overall outlook: If Schumer follows through and the House Judiciary Committee also produces legislation, a limited, targeted immigration reform bill could emerge. Both parties have strong reasons to please the tech industry.

What’s the argument against Green Card ‘staple’ bills?

Sen. Charles Grassley (R-Iowa) argued at a Senate hearing this week on high-skill immigration reform that legislation which automatically gives a green card to foreign graduates has the potential of turning universities into “visa mills.”
Can Congress raise the H-1B cap without raising the cap?

There has been no proposal to specifically raise the H-1B cap, but Smith has pitched the idea of only offering H-1B visas to tech professionals.

The U.S. issues 85,000 H-1B visas annually, 20,000 of which are reserved for advanced degree holders. The H-1B is available to people with a wide range of skills, including writers, accountants, lawyers, clergy, librarians, musicians and fashion models.

Smith has suggested removing some of the non-tech categories from the H-1B visa. Such a move could reduce competition for the visa should demand pick up. As of this month, the U.S. has received nearly 35,000 petitions for H-1B visas.

In the H-1B debate, there is an often repeated belief that U.S. citizens must be given preference over foreigners in the hiring process. That’s not true.

At this week’s Senate hearing on high-skills immigration, Sen. John Cornyn (R-Texas), the ranking member of the immigration committee, said: “We should assure every American and all Americans … we will never hire … a foreign national under an H-1B program where there is a qualified American ready, willing and able to do that job — and in fact that is illegal.”
Grassley, who is also on the committee, pointed out later in that hearing that “employers are not required to demonstrate that qualified American workers are in fact available.”
It’s not illegal for an employer to bypass U.S. workers in hiring, unless the employer is an H-1B-dependent organization, according to the U.S. Department of Labor. The H-1B-dependent label is a designation that applies to companies whose workforces have certain threshold percentages of H-1B visa holders, the largest being companies that have 51 or more full-time workers of whom 15% are on H-1B visas. These firms must show that they have made a good faith effort to hire an American worker.

Grassley and Sen. Dick Durbin (D-Ill.) have proposed requiring U.S. companies to give U.S. citizens preference in hiring in all instances.

Indian tech firms and the Indian government have repeatedly complained about U.S. restrictions and increasing denials of visa applications. But it remains to be seen whether India’s IT services business model, which relies heavily on access to visas, is under threat from Congress. The courts are a different matter.

One Indian company, Infosys, is facing a grand jury investigation in Texas over its alleged use of visitor visas to deliver services. That investigation is the result of Jay Palmer, an Infosys employee, cooperating with authorities. He has also filed his own lawsuit.

In another legal matter, 18 IT professionals who were laid off by Molina Healthcare and claim that they were replaced by Indian workers have filed suit against Molina and its outsourcer, Cognizant Technology Solutions, contending that the companies violated California discrimination law.

However, regarding India’s ongoing complaints about the H1-B visa process, Robert Blake, the State Department’s assistant secretary for South and Central Asian Affairs, said at a press conference last week: “Indians received 65% of the global quota for H1-B visas, so an overwhelming percentage, almost two-thirds of all issued — all H1-Bs issued last year were issued to Indians.” He said that if any country should be “praising the program … it’s India.”