On November 20, 2014, President Obama addressed the nation and announced executive action taken to improve the nation’s immigration system. One specific goal discussed included improving career progression and job mobility for foreign national employees in the final phase of an employer-sponsored immigrant visa (a.k.a. “green card” or “permanent residence”)process. [Click here for a full description of the current PERM process].
For most employers and foreign nationals, the employer sponsored immigrant visa process includes three steps:
1) Test of the Labor Market to ensure that no qualified, able, and willing U.S. workers are available (recruitment)
2) Employers’ petition for an immigrant visa
3) Individual’s adjustment of status (to immigrant visa (green card) holder)
This three-step process can take anywhere from 18 months, to ten years or more, depending on the job type (especially the minimum requirements for such a job) and birth country of the employee, as the longest portion of the process is the wait for immigrant visas, allocated by the U.S. government by type and birth country, to become available. For example: currently, a software developer from Germany may be able to file for the final stage of the green card process as soon as the employer files their petition. A foreign national born in India, in the same job, could have to wait almost ten years or more to file for this final stage as there is higher demand for immigrant visas for this type of visa for individuals born in India, creating a huge backlog and long wait times.
The biggest problem with the long wait times, outside of the potential for exhaustion of temporary (non-immigrant) visas for the worker, is that the worker is required to be in the “same or similar” job when they file for the final phase of the immigrant visa process, as they were when the employer initially filed for an immigrant visa on their behalf. Staying in the “same or similar” job may mean that an employee would have to forego promotions and transfers and certainly couldn’t change employers, forcing them to allow their careers to stagnate, simply due to where they were born, potentially wasting their actual skills and abilities.
The White House has discussed several alternatives to remove these career barriers, including the removal of the country caps on immigrant visas or otherwise making it possible for individuals in the employer-sponsored green card process to file for the final stage in the green card process (I-485 Adjustment of Status) without having to wait for immigrant visas to be available, thereby allowing the foreign national employee to change jobs as early as 180 days after this filing regardless of where they were born.
Once a solution is finally implemented, however, is it possible that employers may view this “improved job mobility” as a disincentive to invest the time and money to sponsor their foreign national employees for permanent residence in the U.S.? They should not, and here’s why:
1) The “Best and the Brightest” aren’t always in your backyard. To compete in a global economy, employers need to look for talent on a global scale, but even employers with a more local client focus face challenges finding skilled talent in the U.S. Employers struggle to fill their specialized skilled professional positions and compete within a very tight market. They know that it is simply myth that they turn away qualified U.S. candidates in favor of foreign national employees.
There is no better example of this than employers of physicians and surgeons. Already facing a shortage of talent, the expansion of health insurance coverage in the U.S. through the Affordable Care Act has spurred increased demand for services. The Bureau of Labor and Statistics (BLS) projects that jobs for Physicians and Surgeons will grow at a rate of 18% which is much higher than the overall 11% growth rate for all other jobs. BLS reported that unemployment in October of 2014 for Professional and Related categories of workers at just 2.7%, which is essentially full employment. Clearly these workers simply aren’t here in the U.S. waiting to be hired.
2) Permanent Residence in the U.S. is still the best tool for attraction and retention of skilled foreign national candidates. Understanding that employers of professional workers, such as physicians, need to look outside the U.S., they also need to make themselves attractive to these candidates who are looking for positions in a number of different countries that face the same shortage of skilled workers we do, like Canada and the UK. Employers willing to sponsor foreign national workers for permanent residence in the U.S. will be perceived more favorably by foreign national candidates than those who do not. Permanent Residence for foreign national candidates opens up a number of opportunities for physicians in particular, such as the ability to “moonlight” (within an employers’ guidelines) as well as obtain work authorization for their spouse through sponsorship of their permanent residence.
3) If an employer doesn’t sponsor their professional foreign national workers for permanent residence, someone else will. Some employers shy away from sponsorship of permanent residence citing that it is too time consuming and costly, and fear their employee will “jump ship” as soon as they obtain their permanent residence. However, this process should also be reviewed in the context of the cost to the employer of turnover from not hiring the right candidate for the role or losing a qualified foreign national worker to another employer who will sponsor them for permanent residence. Recruitment and training of new employees, along with the reduced productivity period of a new employee learning a new job is costly, not just in terms of cash outlay, but also in terms of lost productivity. When an employer has gone through the trouble of applying for temporary work authorization for a foreign national worker, it is usually in their best interest to take steps to retain them on a longer-term basis.
4)Sponsorship is not as hard as it may seem to employers, as long as they have the right partner in the process:
As discussed above, the employment-based permanent residence process is generally comprised of three phases:
1) PERM Labor Certification: Recruitment and Prevailing Wage Determination
2) I-140 Application for Immigrant Visa and Proof of Ability to Pay
3) I-485 Adjustment of Status
The first phase in this process requires the most work on the employer’s behalf and expenses must be borne entirely by the employer. Employers all know how to recruit and determine what they should pay their employees; the stressful part is understanding what the government requires during these activities for PERM which is not the “normal” recruitment process. The right attorney will help guide employers through this complicated and not very logical recruitment “game” and help employers develop a compliant process that their organization can easily manage.
The second and third phases allow for employers to share some or all of the expenses with the employee, either directly or through an agreement should the employee leave their employment before a pre-approved term. The third phase is where many employees find themselves “stuck” as they wait for an immigrant visa to become available based on their country of birth and sponsored job. This wait could be one or two years, but individuals from India and China face wait times around ten years.
Current rules require that the employee be in the “same or similar job” at the time that their Adjustment of Status Applicatio is Processed. President Obama’s November 20th Executive Action simply asked USCIS to provide more flexibility to allow for natural career progression as most people would receive promotions and transfers during such a long period.
5) Enhanced Mobility with H-1Bs actually makes life EASIER for employers to find talent as well as improve staffing flexibility– The same will be true for the Green Card Process. While employers may fear that increased mobility will increase the possibility that a candidate they have invested time and money into for green card sponsorship may leave more easily under the proposed changes, they must also be aware that this opens up a broader recruiting pool for talent that could be brought in from foreign national workers already in the U.S. Retaining an employee who wishes to leave and stays only for one benefit, is retaining a disengaged employee. If the employee is not engaged, employers are not going to be getting the best performance from them. Why not let them leave and bring in someone who will be happy to have the opportunity?
When the H-1B rules changed to allow for portability more than ten years ago, employers had the same fears, and found that removing bonds that held the employee to them, also removed restrictions from the employer and enhanced career progression and improved overall organizational health.
The changes being discussed by the various agencies in response to President Obama’s Executive Action are still rather fluid at this time. However, it appears that the changes may open up new doors for both foreign national employees and employers to enable the U.S. to continue to hire and retain – but in a faster way – the “best and brightest”.