Date: Thu, 21 Jun 2007 14:29:07 -0700 From: Norm Matloff To: Norm Matloff Subject: H-1B vs. employer-sponsored green cards--a tutorial To: H-1B/L-1/offshoring e-newsletter There has been some confusion over the H-1B work visa and employer-sponsored green cards in various venues lately. In addition, there are some critics of H-1B who, typically for political reasons, have been advocating the establishment of a fast-track green card program in lieu of H-1B. In this posting, I will explain how H-1B and green cards are highly related yet are fundamentally different, and will explain why I disagree with the "green cards, not H-1Bs" call made by some people, much as I respect those people. H-1B is a temporary visa, with the official term for the temporary nature being "nonimmigrant." By contrast, a green card confers permanent residency status. It gives the bearer the right to live and work in the U.S. forever, and also makes him eligible to become a naturalized citizen later on. A green card is considered a visa too, not surprisingly called an "immigrant visa." As temporary and permanent visas, respectively, H-1B and employer-sponsored green cards are theoretically separate. Indeed, many employers hire H-1Bs and do not sponsor them for green cards. However, over the years the typical pattern has been for employers to sponsor their foreign workers for green cards, but also sponsor them simultaneously for an H-1B visa, the latter giving them the ability to work during the several years wait while the green card application is pending. The law allows H-1Bs to have "dual intent," which is just a technicality meaning that even though they are currently on a temporary visa, the employer is at the same time applying for permanent status for them. So, this has been the typical pattern: 1. The employer sponsors to hire someone for an H-1B visa first. The employer must file a Labor Condition Application (Form ETA 9089) with DOL when he wishes to sponsor a foreign national for an H-1B . Note that here the employer is merely asking DOL for permission to hire SOME foreign national; he may or may not have someone in mind yet. If the LCA is approved (almost all are), and if the employer does have someone to hire, he then asks USCIS (the old INS) to have the State Dept. issue the visa to that person. Other than the minuscule "H-1B dependent" category, the H-1B visa does not require that the employer give employment priority to Americans (meaning U.S. citizens and permanent residents). It does however have a requirement that the employer pay the H-1B at least the "prevailing wage"; keep in mind that this is a legal term, with tons of loopholes, some of which are seen in the YouTube videos. The legal prevailing wage is typically well below the market wage. 2. The employer then also files an application to sponsor this worker for a green card. The employer may do this as soon as the person starts working, or may wait until the worker has proven himself for a year or two, and then file for a green card. 3. The green card process, known as PERM, starts with labor certification, in which the employer is supposed to demonstrate that no American was available for the job. As the YouTube videos showed, there are tons of loopholes here, so the requirement is basically empty. The employer is also supposed to show that and that the offered wage for this foreign national conforms to the legal prevailing wage requirements. These are the same as for H-1B, and thus have the same huge loopholes. 4. Once labor certification is complete, the employer files an I-140 form to apply for a green card for the worker. This is processed, and when approved, the date of approval is the worker's "priority date." He waits for the availability of a visa. At any given time, he can check to see how much progress he is making, by checking his priority date on the State Dept. list. If the list says "current" for his priority date, he is now eligible for his immigrant visa, i.e. green card. 5. Since there is a separate cap for each country, the wait is nationality-dependent. Since India and China are the two biggest sources of foreign workers, waits for those two nationalities are the longest. 6. There are three categories of employer-sponsored green cards, EB-1, EB-2 and EB-3, roughly corresponing to PhD, Master's and Bachelor's level of education. A worker's priority date is taken within whichever of these three categories he is in, with EB-1 being fastest and EB-3 being slowest. 7. When the worker's priority date becomes current, he files an I-485 form for "adjustment of status" to U.S. permanent resident. He then needs only to pay a fee, get a medical exam etc. and he gets his green card. In the late 1990s, the wait for green cards for Indians and Chinese reached, and sometimes exceeded, six years. Since the H-1B visa is only good for six years (an initial three-year visa, plus a three-year renewal), that created a problem for them. They risked losing their right to work in the U.S. before their green card came through. They formed an organization, the Immigrant Support Network, complete with hiring a high-priced DC lobbyist, to lobby Congress for relief. In 2000, Congress did provide them with some relief, by allowing them to renew their H-1B visas past the six-year time limit, in one-year increments, if they had a green card application pending (labor certification process begun or I-140A filed). Congress also allowed them to switch employers at the very last stage of the green card process (I-485 filed), without jeopardizing their pending green card application. Those were small gains, though, and the H-1Bs continued to be exploitable, and they continued to have long waits. A couple of years ago the waits got up to six years or more again, so another H-1B organization was formed (ISN having faded away), called Immigrant Voice. Again, they hired a slick DC lobbyist and have been extremely active. In recent years, somewhat fewer employers have been sponsoring their H-1Bs for green cards than in the past, but it is still the case that most do so. As I implied above and will detail below, I don't consider the employers that do sponsor their H-1Bs for green cards to be less harmful to American workers than those who don't. Now, what about the proposals made by some critics of H-1B to "give green cards, not temporary visas [H-1Bs]"? I indicated that I oppose such proposals. First of all, note that I said that these proposals are typically made for political reasons. It is a way of being opposed to H-1B while reaffirming pro-immigrant views. I consider myself pro-immigrant too (see my bio at http://heather.cs.ucdavis.edu/matloff.html), but that doesn't mean that I think current immigration policy is good; it isn't. The fact is that giving out green cards are just as bad as giving out H-1Bs. The reason for this is that the dirty little secret is that one of the biggest reasons employers like the H-1B program is that it allows them to avoid hiring the older (age 40+) Americans. Younger workers are cheaper than older workers. When the employers run out of young Americans to hire, they turn to young H-1Bs, rather than hiring the older Americans. The proposed fast track green card systems would be open to new foreign graduates, the vast majority of whom are, of course, young. So whether it is H-1Bs or green cards, the employers still get the young foreign workers they want, and the older Americans are the losers. I should add that, when the former H-1Bs get green cards and later become naturalized U.S. citizens, they are just as vulnerable to the age problem as the natives are. In other words, they get displaced by young H-1Bs too. Norm