Most frequent business travelers and the teams that support them are familiar with the usual immigration options of visas, visa-free business travel, and work permits. These can be frustrating, time consuming, and not always a good fit for schedules or travel purposes. Thankfully for those headed to Asia, many countries have immigration options that lack the issues of more traditional routes.
On September 19, 2019, Congress tried and failed to eliminate the per-country limit for employment-based green cards. This latest effort, a bill known as the Fairness for High-Skilled Immigrants Act of 2019 (HR 1044) easily passed in the House 365-65, but stalled in the Senate where it has been blocked by Senator David Perdue (R-GA) who has placed a hold on the bill preventing a vote.
While there is consensus that the current per-country limit for the issuance of employment-based green cards is flawed, unfair and in need of an overhaul, how to achieve that is at the center of the Congressional debate.
What is the Per-Country Limit?
The per-country limit means that each country in the world receives only up to 7% of the 140,000 employment-based green cards available per year, or about 10,000 green cards per country. A similar limit applies for family-based green cards. Individuals born in India and China, who make up the largest number of employment-based green card applicants, are disproportionately affected by the per-country limit on employment-based green cards. For the two countries, there are well over 10,000 people currently eligible for green cards as direct or derivative beneficiaries, so demand greatly exceeds the 7% allocation every year.
The Source of the Congressional Debate
The number of individuals already stuck in the backlog and the interests of different industries make it virtually impossible to pass legislation that satisfies all stakeholders.
One proposal is to eliminate per-country limits in favor of country-blind first come first serve green card allocation without a change in the total number of green cards available. This is the main idea behind HR 1044. Under this proposal, thousands of Indian- and Chinese-born skilled workers stuck in the employment-based green card backlog would see a shorter line to apply for green cards, while individuals born in the rest of the world would in turn experience the same backlogs that Congress is seeking to eliminate. Variations of this proposal would eliminate the per-country limits in part, but still reserve a portion of green cards for individuals born in countries other than India or China until the backlog is mostly eliminated. Under all variations, in the long-term, country-specific backlogs would be eliminated but an overall backlog would still exist. This solution is criticized by those who would like to see the backlog completely eliminated and green cards issued to all those who meet eligibility requirements without a numerical cap.
An alternative proposal is to increase the number of employment-based green cards available overall and allocate them specifically to individuals born in India and China. Variations of this proposal revolve around whether the cap should be raised, or whether it should be eliminated entirely. This solution is not favored by those who want to limit overall immigration to the United States.
For now, Congress has not fully embraced any proposal, and debate continues.
Do not let the speculation around the possible outcome of Congress’ efforts to eliminate the per-country limit discourage or guide your efforts to gain permanent residence in the United States. It is business as usual for now and it is never too late to secure your place in line (priority date) under existing legislation.
During the 2019 Women’s Soccer World Cup, those searching for immigration stories had to look to the sidelines. At the 2019 Rugby World Cup, happening right now in Japan, you find similar stories about itinerant coaches and countries bringing in top coaches from overseas to give them an edge. But at this event, the sidelines are not the only place where interesting immigration tales can be found.
Just look to the stands – and the scrum.
When the Women’s Soccer World Cup kicked off in France earlier this year, many teams could expect loyal turnout from France’s large immigrant community. In Japan, which is currently hosting the Rugby World Cup, it is a different story. The local fans in the stands are much less diverse.
Japan is not known for welcoming immigrants. As summarized in a recent report by the Migration Policy Institute, until the early 1900s Japan had a policy of active isolationism. Later, during the post-war period, Japan effectively implemented a program of short-term work permits, discouraging long-term settlement. As recently as 2017, according to the United Nations, only 1.8 percent of the population of Japan was foreign born. By comparison, the same year, foreign-born residents made up 15.3% of the US population, 21.5% of the Canadian population, and 28.8% of the Australian population.
Japan does have one type of immigrant it loves though, rugby players, especially those who played their international rugby for New Zealand. The Kiwi team, known as the All Blacks, have dominated international rugby for decades and are the reigning Rugby World Cup champions. Currently 10 former All Blacks play professional rugby in Japan and the current All Black captain Kieran Read is set to join the Japanese team, Toyota Verbitz, after this World Cup.
Down on the field, where players compete in the head-to-head tussle for ball possession known as the scrum, another canonical immigration story is playing out in the ranks of the US national rugby team, the Eagles. This one follows a well-known trope – skilled young people leaving their home for opportunity abroad. Unlike the All Blacks who often play most of their careers for New Zealand professional teams, American rugby players go abroad early.
Take, for example, the Kiwi and American starting lineups for their first matches in this World Cup shown below. Every single Kiwi plays for a professional team in New Zealand, but only 5 of the 15 American starters play professional rugby at home. In fact, the number of American starters who play in the US is not only less than the number of American starters who play in England (5:7) it is even less than the number of starting All Blacks who play for the Christchurch Crusaders (5:8). The Kiwi team is more homegrown than the US team in other ways. For example, of the starting 15 for each team, 13 Kiwi players were born in New Zealand whereas only 9 of the American players were born in the US.
Despite their well-traveled personnel, the US team is not expected to do well in this World Cup. They lost their first match to England, 45-7, and at time of writing the Eagles are ranked 13th in the world behind rugby powerhouses Fiji (12th) and Georgia (11th). The All Blacks, from a country with about the same size and population as Colorado, are expected to win it all. The final is on November 2nd.
As Forbes has reported, US Immigration & Customs Enforcement has begun visiting the work sites of foreign students with employment authorization based on STEM degrees and employment with E-Verify employers (commonly known as “STEM OPT”). While authority to conduct such site visits was part of regulations issued more than 3 years ago, during the Obama administration, this is the first time ICE has exercised its authority.
Although STEM OPT work permits do not require employer sponsorship, employers must develop a 2‑year training program that is kept on file with the student’s university, report changes in employment such as terminations or wage and hour reductions, and allow site visits by government inspectors. Until now, there has been little government oversight of compliance with these requirements.
The regulations authorize ICE to visit work sites, including third-party work sites, with advance notice of 48 hours. The advance notice requirement is waived if ICE has received a specific complaint or has other reason to suspect noncompliance.
Employers who receive a site visit can expect that the ICE employee will ask if the company is still enrolled in E-Verify, has sufficient infrastructure to implement the training plan, properly supervises the student, and carries out the required periodic evaluations. ICE may also seek evidence that students who are contracted to third‑party sites retain a true employee relationship with their contracting employer and may request information on how the student’s salary was determined and whether the student is replacing a US worker.
The STEM OPT work permit is popular with students and employers alike, as it provides work authorization for 3 years in total, and thus 3 opportunities for the student to be sponsored for an H-1B visa in the annual lottery. With odds of success in the H-1B lottery now as low as 30 percent, employers who wish to retain talented foreign STEM students are looking for this sort of advantage. The May 2016 STEM OPT regulations estimate that almost 9,000 employers would drop out of the E-Verify program if not for the fact that it allows them to hire a STEM OPT student.
Noncompliance puts both students and their employers at risk, but consequences fall more heavily on students. The Department of Homeland Security may deny STEM OPT work permits to students who use a noncompliant employer’s E-Verify number on their applications. Students also face consequences, such as denial or revocation of their work permits, for failing to report employer changes they may know nothing about, including a change in Employer Identification Number (EIN) as a result of corporate restructuring.
In light of this new trend in enforcement actions, US companies that employ STEM OPT students should ensure ongoing compliance by familiarizing the students’ managers with training plans and with reporting and evaluation requirements, and by thoroughly reviewing any changes to a STEM OPT student’s employment.
The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.
Below is a summary of the October Visa Bulletin, including Final Action Dates and changes from the previous month.
China: EB-1 advances more than two years to November 1, 2016; EB-2 retrogresses two years to January 1, 2015; and EB-3 advances twenty-two months to November 1, 2015
India: EB-1 returns to January 1, 2015; EB-2 creeps forward four days to May 12, 2009; and EB-3 leaps ahead over four year to January 1, 2009
Philippines: EB-1 returns to April 22, 2018; EB-2 becomes current; and EB-3 advances fifteen months to October 15, 2017
All Other Countries: EB-1 returns to April 22, 2018; EB-2 and EB-3 return to current
NOTE: USCIS will accept I-485 applications in October based on the Department of State’s Dates for Filing chart. The dates listed in the Dates for Filing chart are (in some cases) significantly later than the Final Action chart.
The UK could leave the EU in 6 weeks, or there may be another delay like the one we saw in April. Brexit watchers have likened the UK to a cat that can’t decide if it wants to be in or out and just sits in the doorway. This has an impact on EU citizens living in the UK who are waiting to see exactly what their status will be post-Brexit. The UK has announced a set of policies that will apply starting on October 31, but much still depends on whether the UK and EU reach a deal. A lot is still up in the air.
Congress created temporary protected status (TPS) as part of the Immigration Act of 1990. TPS allows qualifying persons inside the United States to remain and work lawfully until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations. DHS has the discretion to determine when the circumstances in a particular country merit TPS designation. Nationals of those countries already present in the United States can apply for TPS, along with permission to work lawfully. TPS is usually granted in 6, 12, or 18 month increments, and can be renewed. Haiti received the most recent TPS designation for a natural disaster, following the 2010 earthquake that devastated the island nation.
In 2018, the Department of Homeland Security (DHS) announced that it will terminate the temporary protected status (TPS) program for nationals of El Salvador on September 9, 2019. Employment authorization documents (EADs) held by qualifying individuals that expired on March 9, 2018, were automatically extended through September 5, 2018, providing applicants time to apply for new EADs valid through the termination date. However, in late 2018, a federal court judge in California issued a preliminary injunction preventing the administration from ending the TPS program for El Salvador and other countries. At that time, DHS extended the EADs until September 9, 2019. In light of that ruling, TPS beneficiaries holding EADS set to expire on September 9, 2019, will remain valid until January 2, 2020. Because this is an automatic extension, TPS beneficiaries are not required to apply for new EADs. Employers can update the re-verification section of the I-9s by using a copy of the Federal Register notice found at this link.
DHS is expected to issue a subsequent notice prior to January 2, 2020, that will describe the steps DHS will take after that date if continued compliance with the preliminary injunction is necessary. Please check back for updates as we approach January 2, 2020.
As discussed in last week’s post, obtaining US citizenship is the ultimate goal for many foreign nationals in the US who often wait years for a green card and then wait a few more years to apply for citizenship through naturalization. But naturalization is not the only way to obtain citizenship. A major source of data on citizenship laws, GlobalCit’s Global Database on Modes of Acquisition of Citizenship available from the Global Citizenship Observatory has identified 30 different modes of acquisition of citizenship, 10 of which are available under US law through more than 15 different sections of the Immigration and Nationality Act.
Obtaining US citizenship is the ultimate goal of many foreign nationals in the United States. Naturalization is US citizenship. It provides security and an end to endless waiting and uncertainty. Or it used to be. The current administration has made denaturalizing individuals who obtained naturalization through fraud a priority. The scope of US Citizenship and Immigration Services’ (USCIS) denaturalization efforts remains to be seen; however, with heightened scrutiny, including revising the citizenship test, it is important to remember the basics of naturalizing in the US to ensure the best outcome for individuals and employers.