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GUEST COLUMN: ISN'S 5-POINT PROPOSAL TO STREAMLINE EMPLOYMENT BASED IMMIGRATION
By
Jitu Telang
President, ISN
and
Pradeep Chaphalkar 
Chairperson, ISN
[Editor's Note: I have had the pleasure of consulting with ISN - The Immigrants Support Network, a grassroots non-profit organization whose members are employment-based immigrant and non-immigrant visa applicants. ISN has been seriously studying the US employment-based immigration program and has written the following report discussing some of the most serious problems facing employment-based immigrants as well as offering some very interesting solutions.] 
Executive Summary 
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In 1998, the US Congress increased the H1-B quota from 65,000 to 115,000 for next three years that would allow the hi-tech industry in the US to hire additional foreign talent it needs in order to maintain its role as a world-leader of hi-tech products. Due to the continued strong demand for their talents, many of these incoming H1-B professionals are sponsored by their employers for permanent residency (Green Card) in the US. So far, this has been a win-win situation for everyone, since the employees are allowed to stay in the US for the desired duration without the immigration encumbrances by becoming permanent residents, and the industry is allowed to retain the highly trained employees it has invested in. In the process of offering permanent residency to a foreign national, the current immigration regulations ensure that no US jobs are sacrificed.
However, the current situation in the employment-based immigration category is posing a serious threat to all of the entities that benefit from the presence of these professionals. According to current regulations, the employment based H1-B visa can be renewed only up to six years, and today, many of the H1-B professionals are facing the end of their six-year visa limits, and are likely to be forced to leave the US in near future. Most of these individuals are already eligible to become permanent residents of the US. However, several factors such as processing delays and per-country quotas are preventing them from adjusting their status, forcing them to wait helplessly while their six-year H1-B visa clock keeps ticking away. As a result of this situation, immediately after increasing the H1-B quota in 1998, US is now facing a potential loss of thousands of highly trained professionals in 1999, which will certainly affect the hi-tech industry in an adverse manner. And while the industry is slowly waking up to realize this fact, many of the employers as well as legislators are still not aware of the fact that this impending "brain drain" will potentially offset the anticipated increase in H1-B employees, and ultimately the businesses will not be able to reap the benefits of the increase in the number of H1-B workers.
Furthermore, this current situation is also affecting the market conditions of H1-B professionals. Due to the severe delays in acquiring their permanent residency status, the professionals who try to get through the immigration process are forced to stay with the same employer for up to six years, a highly unusual situation in the volatile hi-tech job market. Such a compromise, which almost all H1-B professionals are forced to make, is fostering an environment which allows few unscrupulous employers to abuse these professionals, and at the same time, is artificially controlling the salary levels of all professionals in the job market.
Almost all of the individuals who come for employment on H1-B visa are by definition well-educated people whose income level in the US far exceeds the average income level of the US population. They contribute significantly to the hi-tech industry which is largely responsible for the current unprecedented growth in the US economy, and it is imperative that appropriate steps be taken immediately to not only prevent them from leaving the country, but also to address some of their genuine concerns about the immigration process that adversely affects their lives. Their inability to change their jobs, buy a house, select schools for their kids or invest in their retirement plans, is affecting the lives of these professionals as well as their families forcing some of them to leave this country.
Traditionally, the organizations which have actively worked with the government towards a solution for such problems in the past, did not take into consideration the views of actual people affected by the changes in these laws. Immigrants Support Network (ISN) is an organization formed by the people who have experienced the havoc the current regulations can cause in their everyday lives. Its staff is in close touch with thousands of such people, and has listened closely to their immigration related concerns. After a careful review of all relevant issues, it is apparent that the current immigration laws and procedures related to the employment-based categories are not only unfair to these individuals, but run counter to the interest of hi-tech industry in the US as well. Based on our studies, we would like to propose following five changes in this area in order to adequately address these problems -
1. Allow extension of H1-B visa beyond six years for professionals who either (a) have filed, or have received approval for, their immigrant visa petitions (I-140) in EB-1 or National Interest Waiver category, or (b) have filed, or have received approval for, a Labor Certificate application.
2. Remove the per-country quota limit on employment-based immigrant visas in order to allow the US businesses to hire and retain talented professionals from all over the world.
3. Allow free movement of H1-B workers in the job-market during their immigration process in order to eliminate the conditions that foster abuse of these professionals.
4. Remove the processing delays in every stage of the immigration process, and provide clearer status information in each stage within all processes.
5. Grant a "Y2K Immigration Quota Increase" in the overall immigrant quota numbers to compensate for the increase in H1-B visa numbers.
 
The Five Proposed Solutions 
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Until recently, the process of acquiring permanent residency (Green Card) through employment was a smooth, 3-step, sequential process, which involved proving bona-fide lack of native manpower, attesting job availability to the chosen foreign worker, and finally adjusting the worker's status to that of a permanent resident. However, the delays in this process have surmounted to such a level today that in many cases, the H1-B worker has to wait for about five to six years before he/she can become a permanent resident. In many instances, the workers have been forced to leave US simply because the process has taken longer than the allocated six years of H1-B, forcing their employers to lose their valuable and trained employees. Moreover, the current laws governing the country-quota limits in employment based immigration categories are unfairly forcing this situation on individuals based on their country of birth, rather than their qualifications or the importance of their presence to their employers. These uncertainties in the immigration procedures are becoming a cause of severe frustration among the professionals. Despite the need for their talents, and their importance to the hi-tech industry as well as the booming US economy, they are forced to face an uncertain situation in which they can not buy houses or invest in retirement plans (but have to contribute for the Social Security and Medicare), and thus can not lead peaceful normal lives during their stay.
A brief explanation of five issues that affect them as well as their employers, and solutions to address them are listed below:
1. Allow extension of H1-B visa beyond six years for professionals who either (a) have filed, or have received approval for, their immigrant visa petitions (I-140) in EB-1 or National Interest Waiver category, or (b) have filed, or have received approval for, a Labor Certificate application.
Most of the H1-B employees who come to the US are found valuable enough by their employers to sponsor them for permanent resident status. Application for Labor Certification is a first step taken by most of these employees towards the employment-based immigration. In most cases, employers sponsor this process only after realizing the value of the employee and lack of native talent to fill the job, so it is not surprising that almost all employees who file for Labor Certification end up getting an approval from the Department of Labor, making them eligible to become permanent residents. However, what used to be a total of 3-year period to complete this entire process has become a six to eight-year ordeal today. Unfortunately, the H1-B visa has a maximum of 6-year limit, which forces individuals to leave the country at the end of that period, without taking into consideration their eligibility for the Green Card.
While there are many factors why an H1-B employee fails to become a permanent resident within the 6-year limit of his H1-B visa today, lack of movement in the Priority Date in certain employment-based immigration categories such as India-EB3 and China-EB3 is the most important one to note. This unavailability of immigrant quota numbers is forcing individuals to wait for years before becoming eligible to apply for the adjustment of status. The current law ignores delays caused by the procedural bottleneck and still imposes the 6-year limit on their H1-B visas, forcing the professionals to leave their jobs as well as the country, and effectively nullifies all the efforts made by the individuals and their employers. We are already hearing from several people who are facing this situation in 1999 due to this problem, and such a mass departure of technical talent will definitely have an adverse impact on the growth of the hi-tech industry, which is right now in need of such talent more than any other time in its history.
Proposed Solution
US government should realize that this problem will not only adversely affect these eligible immigrants, but will also hurt the hi-tech industry in a severe manner in the coming months. One simple solution to this problem would be to waive the 6-year limit on H1-B visa for those individuals whose employers have shown enough confidence in them by sponsoring them for their Labor Certification. This should apply to all individuals who have either applied for, or have already received, a Labor Certificate from the Department of Labor. This will ensure a fair treatment to the individuals as well as the employers who have shown intent to serve each other's needs on a long-term basis. Individuals past their 6-year H1-B limit could then be forced to leave the country only if the Department of Labor rejects their Labor Certification application.
Similarly, same provision should be extended to individuals in the "Outstanding Researcher" or the "National Interest Waiver" categories. These individuals, based on their advanced degrees or outstanding achievements, are allowed to bypass the Labor Certificate stage, and qualify for permanent residency based on the approval of their I-140 petitions. All such outstanding professionals who have applied, or have received the approvals, for their I-140 petitions should not be forced to leave the country at the end of six-year period of their H1-B visas.
We propose that the necessary amendments should be made to the law immediately in order to avoid having thousands of experienced professionals leave the country in 1999 due to this problem. It is in the best interest of US not to lose these highly skilled people to other nations when the need for such individuals has reached critical levels.
2. Remove the per-country quota limit on employment-based immigrant visas in order to allow the US businesses to hire and retain talented professionals from all over the world.
The country-quota limit in the employment-based immigration category is an inappropriate law that unfairly discriminates against a large portion of the people qualified for immigration every year. Most of the people who immigrate through the employment channel first start working in the US on H1-B visa, and this visa is issued based on their qualifications, not their country of origin. This situation is well reflected in the fact that more than 50% of H1-B 65,000 visas in 1997 were issued to people from only two countries, India and China. 
However, when the same individuals apply for the permanent residency, the current regulations impose 7% maximum per-country quota limit in the allocated 140,000 annual permanent residency in the employment based category. This quota system reduces the total number of permanent residency that can go to professionals from any one country to 9800 only, a number which, by the way, also includes family members of the principal applicants. Since 1990, the input of professionals from these two countries in employment category has been approximately 35,000 per year. But at the same time, only 20,000 permanent residencies per year are offered in this category, which has created huge backlogs. Priority Dates for countries like India and China in some immigration categories are therefore barely moving even as months pass by. If this trend continues, professionals from these countries are not likely to acquire their permanent residency even after spending six to eight years in this process, and hence, are most likely to get frustrated by the wait, and look for opportunities elsewhere in the world to pursue their hi-tech careers.
Proposed Solution
Since it is unlikely that neither US government nor the hi-tech industry would like to see thousands of hi-tech employees suddenly having to leave the US, we propose that these country-quota limits be completely removed from the employment-based category. It seems highly illogical to hire people from all over the world to fill jobs in the hi-tech industry, and then to enforce an unbalanced country-quota limit when all of them try to immigrate through the same process. This 7% country-quota limit at the end of the process has created a huge bottleneck for individuals from India and China, and enforcing such a discriminating limit based on their country of birth will severely hurt the hi-tech industry in their ability to hire talented professionals from all over the world.
3. Allow free movement of H1-B workers in the job-market during their immigration process in order to eliminate the conditions that foster abuse of these professionals.
Today, in order to sponsor an H1-B employee for the Green Card, an employer has to prove to the Department of Labor that the employee is not taking the job away from an American citizen. As fair as the reasoning behind this requirement is, by raising the H1-B quota in 1998, US lawmakers have effectively acknowledged the fact that there is a shortage of workers in the hi-tech industry. And its well-known that almost all of the H1-B professionals are found worthy by their employers to sponsor them for a permanent resident status, and their continued presence beyond the 6-year term of their H1-B visas was clearly considered when the recent need for additional professionals was analyzed.
Perhaps in the past, it used to be fair to have these individuals to go through the Labor Certification program. Today, however, the facts presented in several recent reports suggest otherwise. These people are well-educated, skilled workers who are working in an industry where more than 200,000 jobs remain unfilled every year. Many of them have proven to be successful entrepreneurs who have formed new companies, creating thousands of new jobs for the American people. Yet, when these people immigrate to the US, they are forced to go through the age-old ritual of employment-based immigration process, which now may take more than six years in many cases.
While not a problem in cases where both, the employer and the employee, are happy with each other, there are several cases where employees end up making serious compromises in their careers in order to ensure a smooth Green Card process. Such compromises often include accepting low raises, letting go of better career opportunities due to lack of a choice, and sometimes, even living without family members due to inability of the spouses to find a job in the same area. Such a situation also fosters an environment where some employers take undue advantage of their H1-B based employees by using the Green Card as a hanging sword over the head of their employees.
Today, with the delays in the Green Card process stretching way beyond reasonable periods of time, these professionals now face two options. They could either forgo the temptation of applying for permanent residency, freely move in the job-market during their 6-year stay in the US, and then pursue job opportunities elsewhere in the world, or continue with one employer for as many years as it takes to get their Green Cards. Both of these situations are harmful for the hi-tech labor market. In the former case, US businesses will lose these qualified and then experienced professionals at the end of their 6-year period. In the latter, the wages in the market will be artificially manipulated, since these employees will not be free to respond to the demands of the job-market, and furthermore, it will create a breeding ground for those employers who wish to abuse the situation. Given the current demand for these professionals in the US, there is no reason to allow such a situation to exist.
Proposed Solution
There are a number of ways to alleviate the problems outlined above. No matter which solution is used, it should ensure a fair immigration process to these would-be immigrants and eliminate the conditions in the job market which force them to make severe compromises in their lives as well as careers. In order to achieve these goals, we propose that the US government should establish a system where the H1-B professionals are able to continue their permanent residency applications across different jobs as long as they are employed within the same field. The simplest way to ensure this would be to allow a transferable H1-B status and a transferable Labor Certificate independent of one specific employer. This could be achieved by making the field of one's expertise as basis of their H1-B status and the Labor Certification program, rather than a particular job. Also, Labor Certificates could be granted based on attestations of the employers about their past unsuccessful efforts to recruit qualified people. This would allow H1-B professionals to freely move in the market and severely reduce the conditions that allow the existing abuse. Given the current need for these engineers in the hi-tech industry, especially with regard to the Y2K problems, there is no logical reason to force each engineer to go through the rigorous and lengthy process of Labor Certification with one single employer.
Another solution to the problem could be to make the National Interest Waiver (NIW) program flexible enough to allow hi-tech engineers to benefit from it. Given the current boom of the hi-tech industry in the US, the vast contributions of this industry to the current growth of the US economy, and the well-known shortage of skilled professionals in this same industry, one wonders why majority of the professionals hired by employers in this industry are not considered valuable enough to grant them a National Interest Waiver. Granting a National Interest Waiver would essentially allow the professional the flexibility to move across employers while pursuing the permanent residency application. By implementing any of the solutions mentioned above, the US government and various related federal agencies could save millions of dollars in processing the immigration applications of H1-B professionals. We propose that the US lawmakers take a close look at the severe need of the hi-tech industry for these professionals, and amend the employment-based immigration laws appropriately to ensure them a fair immigration process.
4. Remove the processing delays in every stage of the immigration process, and provide clearer status information in each stage within all processes.
While thousands of H1-B professionals are simply waiting today for their Priority Date to become current so they can file for adjustment of status, many others have been waiting in the adjustment phase for more than a year. As of February '99, some INS service centers are taking more than 500 days to process adjustment applications. Combined with the delays involved in other parts of the immigration process, such as Labor Certification and I-140, the total time to acquire permanent residency has gone up from 2 to 3 years to more than 6 years. As stated earlier, many of these individuals are also about to run out of 6-year limit on their H1-B visa. Others, simply due to heightened frustration levels, have started looking to other nations such as Canada for career opportunities. Their inability to change their jobs, buy a house, or invest in their retirement plans for such a long period of time, combined with the uncertainty about their future in this country, is leaving them with no choice but to make alternate plans outside the US.
Neither State Department nor INS ever provides the unfortunate individuals waiting for their Priority Date to become current with an approximate time frame that would make them eligible to file for the adjustment of their status. Nor do they provide clear status information on the pending applications. A typical response from any INS service center on the status of an I-485 application consists of no more information than the fact that it is being processed. Many people, having no choice but to comply, try inquiring again after a month, only to hear the same words again. It is also not uncommon for individuals to get conflicting information from different officers.
Furthermore, the processing times vary significantly with the location of the INS service centers. Getting an H1-B visa approved is a matter of weeks at one INS center (Vermont) while it takes months for the same procedure at another center(California). This is adversely affecting the businesses that are based in geographical areas served by service centers taking long time to process the applications.
 
Proposed Solution
We would like to propose that processing delays in various stages of employment-based immigration be reduced significantly so all professionals in the employment-based category can become permanent residents within a maximum time frame of 2 to 3 years. We request that US lawmakers should consider taking measures to ensure a time-bound processing of applications in each stage of employment-based immigration process. In addition, we would also like to propose that the government take necessary steps to ensure that all regional INS and DOL offices have uniform processing schedules for all types of applications in order to reduce the adverse effects caused by unpredictable and non-uniform delays at different centers.
The processing delays in I-485 stage have caused several thousands of immigrant quota numbers to be left unused every year. In spite of thousands of applicants waiting to adjust their status, in FY 1997, INS utilized only about 90,000 out of 140,000 allocated permanent residency in the employment based category. According to INS, lack of resources is making timely processing of these applications nearly impossible, making the existing backlog worse every year. We propose that the government should consider adequately increasing the fundingof INS so that it could fulfill its role more efficiently. It is also possible to levy a surcharge on every applicant or his employer, or both, and use those funds to facilitate timely processing of the applications.
To simplify the problem regarding movement of the Priority Dates, we propose that the procedure and the data used in calculating the cut-off dates be made public. Publishing such information as the number of new applications received by INS, along with the other data used to calculate the cut-off date every month, would allow many people to draw educated inferences, and plan their lives accordingly. Several personal decisions in every individual's life depend on the outcome of these applications, and we feel that all involved government bodies should make reasonable efforts to address such concerns.
We also suggest that better information be provided on I-485 applications, so that affected individuals have a clear idea about the expected time frame to get their applications approved. We propose that different phases that an I-485 application goes through be published by INS, along with a periodic report about expected delays in each phase. Such information would give all applicants an accurate idea of the status of their applications.
While it is not always easy to solve such procedural problems, a few simple remedies could make the lives of these applicants much better in these waiting stages, and perhaps allow them to re-evaluate their choices if necessary.
5. Grant a "Y2K Immigration Quota Increase" in the overall immigrant quota numbers to compensate for the increase in H1-B visa numbers.
Year 2000 is almost here, and the need for software professionals due to the infamous Y2K bug has reached critical levels around the world. Countries like United Kingdom and Canada have both already announced special Y2K immigration initiatives. Yet the US, which needs the H1-B professionals more than any other nation, has done nothing significant to allow these professionals to immigrate to the US.
According to several reports, it will probably take 3 to 4 years after year 2000 to completely eradicate the Y2K bug from within the existing software programs. However, thousands of H1-B professionals are likely to be forced to leave the country in the middle of this Y2K crisis due to lack of immigrant quota numbers in the employment-based category. This will be the result of a combination of problems in the employment-based immigration, including the lack of additional numbers to compensate for almost 90% increase in the H1-B quota numbers in 1998, and will prove to be devastating to all industries in critical need of the software talent to resolve the Y2K problems.
According to previously published INS reports, only about 40% of the total applicants who use employment-based quota are principal applicants. This is because many of them also apply for adjustment of status for their immediate family members, and the numbers allocated to the family members also come from the same employment-based quota. Given the fact that total number of H1-B visas issued every year has been increased by 50,000, US lawmakers also need to consider increasing the 140,000 per year employment-based immigration quota to reflect this increase in the H1-B visas. Most of the H1-B workers are likely to get sponsored by their employers for permanent residency, thus getting Labor Certification approvals within next two years or so, and then increasing the existing backlog of applications by a significant factor.
Proposed Solution
We propose that US government should consider the hi-tech employment sector as well as the Y2K problem as special cases and increase the employment-based immigration quota at least by 125,000 to compensate for the increase in the H1-B quota. We propose that at least a temporary arrangement should be made until the situation becomes balanced again and the backlogs are cleared without forcing the employers to lose these qualified and skilled workers. It is important to prevent such a potential brain drain when 50,000 additional skilled professionals are allowed to come in every year to accommodate the needs of the hi-tech industry.
 
Conclusion 
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In 1998, the United States achieved the best combination of strong economic growth, low inflation, and low unemployment in more than three decades. The business investment, led by spending for computers and other information processing equipment, went up by 12.5 percent. The H1-B professionals are a backbone of the hi-tech industry, which is largely responsible for these achievements. Unfortunately, the immigration laws and procedures that affect these professionals have not adapted to the rapid changes the hi-tech industry has undergone in this decade. We hope that this proposal, which will be circulated within various organizations, lawmakers, and the media, will help us bring these issues to the forefront and get them resolved in 1999. These problems are severely affecting hundreds of thousands of these tax-paying professionals and their employers. It is imperative that US government realizes the importance of retaining this talent in the country, and offers a fair and smooth immigration process for the professionals who are eligible to become permanent residents of the US.
Acknowledgments 
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We would like to acknowledge several people who contributed to this proposal in terms of their ideas as well as time, including some of the core ISN members such as Shailesh Gala and Muthu Muthuraj. These ideas were also discussed with all of our advisors, who helped us understand various issues related to employment-based immigration process, and made several good suggestions that are reflected throughout this proposal. In no particular order, we would like to thank all of them, Carl Shusterman, Warren Leiden, Gregory Siskind, and Rajiv Khanna, for their valuable contributions. Last but not least, several ISN members, especially those in our Strategy Planning and Media Relations Committee, also helped significantly by contributing their thoughts to our discussions regarding this proposal.