I-140 Employment Card Rule Could Be a Winner for Both American and Immigrant Workers

shutterstock_320637917It’s no secret that the U.S. has shortages of workers in a variety of fields. Our immigration system seemingly provides a solution to the problem. If an employer is willing to undertake a complicated recruiting process where the position is advertised in a variety of places and the employer is willing to pay the going wage rate in the community, and if the employer can show that there are no available, qualified U.S. workers, the employer can file a visa petition to sponsor an immigrant to fill the position. That would work, except that there are quota rules that mean many, if not most of those immigrants end up waiting decades in line to receive their green cards. Indian nationals in the EB-3 category for workers with bachelor’s degrees, for example, face backlogs that at least one study estimates may be as long as 70 years.

Many of these immigrants are already in the U.S. on temporary work visas and can work while awaiting a green card. But this is a small comfort. If an immigrant worker tries to change employers, the first employer could withdraw the visa petition and the immigrant could have to start the whole process all over again. The same is true if the employer goes out of business. And because the immigrant visa petition is for a specific position at a specific salary in a specific geographic location, job mobility for these employees is extremely limited. Any sort of move, such as a promotion to a higher paid position or a transfer to another location, could jeopardize the green card process. So people wait. And wait. And wait.

Over the last decade, Congress has discussed these problems. Most members of Congress say the right thing when it comes to easing the legal immigration process. But when it comes to actually passing legislation to address the long backlogs for employment-based immigrants, Congress has yet to make even minor changes, much less pass a comprehensive reform bill that many deem crucial to any meaningful impact. In the summer of 2014, President Obama gave Congress an ultimatum: Take steps to address the problems in our immigration system or he would use his executive powers to do the job Congress won’t. In a prime time speech last November, President Obama announced a variety of executive actions he would take. Most of the media attention was focused on measures to address the population of people in the U.S. without any legal status. But he also made it clear he would make changes to solve some of the problems in the employment-based immigration system, including increasing “portability” for workers caught in the long visa backlogs.

One idea that falls under the “portability” rubric that appears to be gaining support from the White House would give those with an approved employment-based immigrant petition, who have been unable to file a green card application as a result of the backlogs, the option of filing for a work permit. This would make it easier for the worker to accept promotions, change employers, and maybe even start a company. USCIS would also recognize the continuing validity of certain petitions even if an employer requests that it be withdrawn or the employer goes out of business. As long as the immigrant continues to work in the same or a similar occupation, the green card application will eventually be approved when the individual gets to the front of the visa queue. Affording broad employment authorization to those whose skills have been shown to be needed in the U.S. economy is an important step, and while there are many unanswered questions about maintenance of nonimmigrant status, eligibility for adjustment of status, accrual of unlawful presence, and other processing issues, employment authorization for approved I-140 beneficiaries would be a welcome signal.

Changes such as this would dramatically improve the lives of these would-be green card holders. But it’s also good for American workers and for our broader society. Improving mobility for immigrant workers would give them more power to bargain for higher salaries and better conditions, and the upward pressure on their wages will mean higher wages for American workers as well.

But the bigger dividends will come if these workers are given the freedom to unleash their entrepreneurial spirit. More than 25% of our country’s high tech companies started between 1995 and 2005 have an immigrant founder. These include companies like Google, Yahoo, EBay, Instagram, and Tesla. These companies have contributed billions of dollars every year to the U.S. economy. We need more of these immigrant success stories. Easing the rules to allow employment-based immigrants the option of obtaining a work permit is one way to move the odds in our favor.

Written by Greg Siskind, Member, AILA Board of Governors

by Guest Blogger