Clark Hill

There has been a lot of discussion about undocumented foreign nationals in this presidential election season. But there has been almost no discussion of the plight of documented foreign nationals who are of lawful immigration status but cannot secure a temporary work visa. Often even if they do, they must wait years for U.S. lawful permanent residence (a green card). There are many challenges for those playing by the rules.

To illustrate this, many of these foreign nationals start out in the U.S. on F-1 and M-1 student visas. In March 2016, the U.S. Immigration and Customs Enforcement (ICE) reported that 1.18 million foreign nationals were in the U.S. studying on these student visas. For those attending public universities and colleges, they must pay out-of-state tuition.

Upon graduation, the F-1 students can apply for, and are routinely granted, one year of optional practical training (OPT) so they can work in the U.S. and receive training. Those who studied in a program that involved science, technology, engineering, or math (STEM) can apply for an additional two years of OPT work authorization if they work for a qualifying employer. According to ICE, 40 percent of these students are studying in a STEM field and over 500,000 are enrolled in master or doctoral degree programs.

But there aren’t great odds for students looking for a long-term work visa. The most common work visa for professionals is called the H-1B visa. The H-1B is needed for students to remain in the U.S. after their OPT runs out. Congress hasn’t given private sector U.S. employers enough H-1B visas to keep up with demand. For the roughly 85,000 H-1Bs that are available each fiscal year, over 200,000 applications are received during the five filing days available per year. Our office estimates that the odds for being selected in the random H-1B lottery are 50 percent if the worker has a U.S. master’s degree or higher and 30 percent for everyone else.

H-1B workers cannot be “cheap immigrant labor,” as they must be paid what a U.S. worker would be paid for the same job or meet the U.S. government’s wage floor for that position in that area. Additionally, the filing fees for an H-1B application are over $2,300 per employee for most private employers plus attorney costs, and the vast majority of H-1B workers cannot stay in the U.S. and secure a green card unless their U.S. employer sponsors them. Sadly, many professionals have been trying for years and still haven’t received an H-1B. Congress is not moving to increase the H-1B quota—even the word “H-1B” is caustic in their halls.

Even if these students receive an H-1B, they can only stay in the U.S. for six years. The U.S. doesn’t have enough employment-based green cards, and Congress has put a quota system in place to tell applicants how long they will wait for an employment-based green card. The employment-based green card system is the opposite of a frequent flyer card: persons from countries that have more applicants wait longest for a green card, since no country can use more than the seven percent of total green card numbers available per year. Persons born in India, China, and the Philippines typically wait the longest for employment-based green cards. Wait times can be over five years, with many applicants from India waiting decades for a green card.

For most employees, this green card process does not start until the employer can prove, after running ads in six different media outlets, that the employer was unable to find a U.S. worker who was minimally qualified to do the job advertised at a wage determined by the DOL.

Who pays for these H-1B applications, extensions, and most of the green card costs? The employers. By regulation, many of these costs cannot be paid for by the employee, including the H-1B filing fees and attorney fees, and PERM labor certification attorney fees and advertising costs.

“For the roughly 85,000 H-1Bs that are available each fiscal year, over 200,000 applications are received during the five filing days available per year.”

These students are the people we trained in our universities, and many of them paid a lot of money for their education. Many of these foreign-born graduates went on to become founders of successful companies. Recent studies confirm that foreign-born workers in the U.S. are far more entrepreneurial than their U.S.-born counterparts. It is a shame that we have an immigration system where only those with the intestinal fortitude to go through the dizzying highs and terrifying lows, along with some luck for highly educated entrepreneurial individuals, make it out at the end. These foreign nationals have the same job and financial and family stressors as the rest of us—oftentimes even more. However, the pinnacle of their concerns is the question, “Will I be allowed to stay?”