High-Skilled Immigration Reform: What Does The Future Hold?

Tuesday, March 26, 2013 - 15:30

Congress has once again taken up the difficult issue of comprehensive immigration reform, marking the first time since 2009 that there has been significant momentum for major changes to the U.S. immigration system. That debate has raised immensely challenging questions across the immigration landscape – how to handle the estimated 11 million undocumented immigrants in the United States; whether to change the rules about which family relationships can be the basis for immigration to this country; what levels of immigration of lesser-skilled workers is right for the economy. In addition, changes to the high-skilled business immigration system are very much part of the conversation, and these present key challenges of their own.

With an issue that has been as controversial as immigration has, provoking strong sentiments on every side, it is entirely possible that nothing will happen at all. If Congress fails to reach consensus for change, our immigration laws will go forward as they are today, and many of the problems associated with the current legal structure will remain unsolved. Businesses will continue to struggle with government quotas that haven’t changed in decades, and even high-skilled legal immigrants will continue to endure years of backlogs to obtain permanent resident status, commonly known as a “green card.” Should change not happen now, the comprehensive immigration reform debate is unlikely to be taken up again until at least after the 2014 election cycle.

If agreement can be reached, the changes to U.S. immigration laws are likely to include changes to the rules for high-skilled immigration. There are a wide variety of proposals for change in this area, and while nobody can predict what changes might take place, there are some common themes that are often discussed.

One common theme is changes in government quotas, particularly for employment-based green cards and for H-1Bs (temporary work visas used for high-skilled workers). To obtain an H-1B, the worker must hold at least a bachelor’s degree in a field related to his or her proposed employment, and the proposed job itself must require at least a bachelor’s degree. H-1Bs are currently capped at 65,000 per year, with an additional 20,000 H-1Bs available for people who hold an advanced degree from a U.S. college or university. Employment-based green cards are capped at 140,000 per year, and that figure includes green cards that go to spouses and children of workers receiving green cards. It is estimated that more than 50 percent of the 140,000 annual green card quota is used for immediate family members, meaning that no more than 70,000 workers receive green cards each year. Government data shows that the U.S. workforce currently is made up of more than 154 million workers, so the high-skilled quotas account for less than one percent of the overall workforce.  Even if these quotas were doubled, high-skilled foreign workers would continue to be a tiny percentage of the overall workforce in the United States.

There is a growing recognition among policymakers, however, that high-skilled workers are an essential part of the American workforce and that there is a particular shortage of workers with advanced degrees in science, technology, engineering and mathematics (“STEM”) fields. The President, congressional leaders in both parties, and a host of economic analysts have all recognized that these workers create jobs and contribute to economic growth, and that it is self-destructive policy to limit America’s access to them. Many proposals associated with high-skilled immigration reform would exempt from the current quotas those individuals with an advanced STEM degree from a U.S. college or university. This would have two effects. First, for those individuals, it would eliminate the quota problems and delays associated with our current immigration structure. Second, by exempting those individuals from the quota, it would free up a quota number that would otherwise be used by the STEM worker so that it can be used by someone else. This would provide some level of quota relief without actually raising the quota.

Another common theme is that of incorporating into our immigration laws something of a preference for green cards over temporary visas. This would be accomplished with both a carrot and a stick. By making the green card process more streamlined for certain high-skilled workers, employers would be given an incentive to shift from relying on workers on temporary visas to sponsoring their foreign national employees for green cards. At the same time, there are proposals for additional restrictions on temporary visas, such as H-1Bs, that would make it more complicated and substantially more expensive to obtain a temporary visa for a worker, even putting aside the quota issues. These kinds of restrictions may include the following:

  • Increasing fees paid to the government for H-1B and other temporary visas, sometimes by several thousand dollars;
  • Requiring employers to prove both that they have actively and unsuccessfully recruited for a U.S. worker and that they have not had any layoffs of U.S. workers before those employers can sponsor an H-1B for a new hire;
  • Increasing wage requirements for H-1B workers so that they would have to be paid a wage rate that is greater than the market wage, thus making it substantially more expensive to hire a foreign worker on an H-1B than a U.S. worker; and
  • Increasing enforcement provisions, such as requiring annual compliance audits of companies that file a sizeable number of H-1B petitions.

These kinds of additional restrictions may well be the price that is exacted from employers to gain access to high-skilled foreign workers. Advocates for these restrictions believe that there are qualified U.S. workers available for these jobs and that by making the H-1B process more difficult and expensive, companies will make greater efforts to find those qualified U.S. workers. If, however, there in fact is not a sufficient supply of U.S. workers available with the kind of education and experience needed for these kinds of positions, then the question becomes whether such restrictions will make the process so challenging that companies will move projects abroad rather than bringing high-skilled workers here. The answer to this question could have a dramatic effect on the U.S. economy as it continues its recovery efforts.

Proposals for changes to our immigration laws have also included some changes that would be welcomed by companies that employ high-skilled foreign workers. Many of these changes are included in the Immigration Innovation Act of 2013, which was introduced in the Senate on January 29, 2013. That bill contains such provisions as  the following:

  • An increase in the H-1B quota to 115,000 per year, with a separate provision that would allow the H-1B quota to change year-to-year depending on usage of the quota in the previous year.
  • A recapture of employment-based green cards that were authorized under prior law but that were never used due to administrative and processing delays. These would help to reduce somewhat the current backlog in employment-based green cards, where some high-skilled foreign workers currently have to wait 10 years or more for a green card.
  • A change to the law regarding the existing 140,000 annual employment-based green card quota so that family members would no longer count against that quota. Similarly, green cards for workers with an advanced degree in a STEM field from a U.S. college or university would also no longer count against that quota, nor would individuals of extraordinary ability, or outstanding professors and researchers. While the employment-based green card quota itself would remain unchanged, these exemptions from the quota would help to ease the backlog and would ensure that workers particularly in demand, such as advanced degree STEM workers, would not be placed into long quota backlogs.
  • A provision that would give H-1B workers a 60-day grace period to find another position or to leave the U.S. if they are terminated from their employment. Under current law, there is no grace period, and an H-1B worker is immediately considered “out of status” if he or she is no longer employed.
  • Elimination of the “per country” limitations on employment-based green cards so that all high-skilled workers are treated the same without reference to country of nationality. Under existing law, no more than seven percent of the annual quota of employment-based green cards can go to workers from any single country. This has resulted in very long backlogs for people from India and China, who make up a disproportionate number of high-skilled immigrants. By removing the per-country restrictions, country of nationality would no longer affect the wait time to obtain a green card.
  • Provision of work authorization to spouses of H-1B workers. This would allow spouses of H-1B workers to obtain an employment authorization card, and they could then be employed in the United States. Under current law, spouses of H-1B workers cannot obtain employment authorization.

The Immigration Innovation Act of 2013 would also raise processing fees. The processing fee for an H-1B would increase by $2,500 for most companies, and the processing fee for a green card would increase by $1,000. Most of the revenue raised by these fee increases would be directed toward improving STEM education in the United States.

Discussions about changes to U.S. immigration laws, both for high-skilled workers specifically and comprehensive reform overall, continue to evolve. We may see dramatic changes that reduce backlogs and make it easier for U.S. companies to attract the world’s top talent. We may also see changes that add further restrictions to the process and add expense, which may cause companies to make large-scale changes in their business planning process if they believe those changes will effectively prevent them from finding necessary new hires. Finally, we may see no changes at all, as a very real possibility exists that Congress will be unable to reach agreement on this very complicated issue. It is unlikely that Congress will pass an immigration reform bill that only addresses high-skilled immigration without also addressing the broader issues of undocumented immigrants and lesser-skilled labor. If that occurs, our existing system will continue, and employers of high-skilled workers will need to continue to engage in a complex system of planning around delays, quotas and challenging administrative requirements.


Bo Cooper is a Partner in the firm’s Washington, DC office, and leads the firm's Government Strategies and Compliance Group. He provides strategic business immigration advice to a variety of clients, including companies, hospitals, research institutions, schools, and universities. Mr. Cooper served as general counsel of the U.S. Immigration and Naturalization Service (INS) from 1999 until February 2003, when he was responsible for the transition of immigration services to the Department of Homeland Security (DHS).  Daryl Buffenstein is a Partner in Fragomen’s Atlanta office. His experience includes testifying before U.S. Congress on various corporate immigration issues, and writing key business provisions in major pieces of immigration legislation over the last 16 years. As a former president of the American Immigration Lawyers Association (AILA), Mr. Buffenstein was responsible for leading a successful national campaign to defend legal immigration, in response to efforts in Congress to radically restrict immigration. Kevin Miner is a Partner in Fragomen’s Atlanta office. His practice includes working with clients to develop effective strategies for business immigration while ensuring compliance with applicable rules and regulations. Mr. Miner has drafted key pieces of immigration legislation, and has worked closely with the U.S. House and Senate Judiciary Committees on immigration legislation. He currently serves as vice chair of the American Immigration Lawyers Association (AILA)’s Liaison Committee with the U.S. Department of Labor (DOL).

Please email the authors at bcooper@fragomen.com, dbuffenstein@fragomen.com or kminer@fragomen.com with questions about this article.