US immigration backlog forces H-1B workers to put life on hold

Twelve years is a long time. Twelve years ago, my partners and I were just launching our law firm; my BlackBerry didn’t have a color display; and my oldest was in junior high.

{mosads}Now, our firm is twice as big as it was when we launched it, my youngest is in college, and I’ve carried an iPhone for more than seven years. Twelve years ago, many of the younger paralegals in my office were just old enough to see the third “Harry Potter” movie — the one that introduced Sirius Black — and Beyoncé released her first solo studio album.

Twelve years ago, you could still say “the Babe Ruth Curse” applied to the Boston Red Sox.

Twelve years ago, our client AJ entered the U.S. to work on an H-1B visa, and his employer started the green card process.

Like many H-1B visa holders, AJ was born in India and works in the information technology field. He did development work in-house at a large company, taking business-users’ requests for new features and applications and making them reality.

Due to the tight IT job market, his employer was able to obtain a certification from the Department of Labor (DOL) that there were insufficient numbers of qualified U.S. workers available with his skills, and that his employment would not adversely affect the U.S. workforce.

That certification established AJ’s “priority date,” which is really his place “in line” for immigration purposes, in 2004.

Like tens of thousands of highly skilled workers from India, AJ then began to wait … and wait … and wait.

During that time, he continued to work in the role that he was certified for, turning down better job opportunities with his employer when they arose, because a new position (even with the same employer) would require a new labor certification. He never even considered changing jobs, as a new job would require H-1B visa sponsored by a new employer. His young children, on temporary visas as his dependents, became teenagers.

Finally, 12 years after the process began, he became a permanent resident of the United States.

AJ’s story is all too common. At the time AJ started his green card saga, it appeared he would likely have his green card in as little as 18 months because, in 2004, there was no backlog of employment-based immigrant visas.

Processing delays at U.S. Citizenship and Immigration Services (USCIS), however, hid the true scope of the demand for these green cards, and for several years USCIS did not even approve enough applications to use all the visas available.

In 2007, a processing snafu between the Department of State (DOS) and USCIS allowed those with priority dates earlier than 2007, including AJ, to come forward and lodge applications with USCIS for the final step of the green card process.

By 2011, there were almost 50,000 applicants in AJ’s category still pending, according to an analysis of the visa backlogs by Stuart Anderson of the National Foundation for American Policy.  

For an information technology professional from India considering whether to start the green card process with a U.S. employer, or take an opportunity outside the United States, the long visa backlogs make the U.S. option less attractive.

As Stanford professor Vivek Wadhwa has reported, foreign nationals have made enormous contributions to technical developments in the U.S.

The nation cannot rest on its past success, however, as these talented engineers have options outside the country, and the long green card backlogs – which prevent them from being fully established in the U.S., and on the road to citizenship – often make other countries more attractive.

The U.S. limits itself to accepting no more than 140,000 skilled immigrants per year through the employment-based green card process. This limit has been in place for nearly 30 years, during which time the size of the U.S. economy has tripled, and the number of jobs that require science, technology, engineering, and math (STEM) degrees has increased to more than 16 million.

Raising that annual limit to attract talent to the U.S. — rather than forcing skilled immigrants to contemplate 12 years or more in temporary H-1B status — continues to be an urgently-needed reform of our immigration system.

Stock is the president of the American Immigration Lawyers Association (AILA).