Yesterday President Trump suggested he might have plans to provide a path to citizenship for H-1B visa holders. Tech employees, young entrepreneurs, startups, and the U.S. economy stand to benefit if this pathway comes to fruition.

“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship,” Trump tweeted yesterday morning. “We want to encourage talented and highly skilled people to pursue career options in the U.S.”

H-1B visas allow U.S. companies to employ highly-skilled foreign workers in specialty occupations that require theoretical or technical expertise.

Previously, Trump criticized the H-1B program for displacing American workers and accused it of holding down salaries. And his administration has made changes that have effectively made the H-1B process more unpredictable, difficult and expensive for employers. In fact, the Business Roundtable, a group of CEOs from major U.S. companies, sent a letter to Homeland Security Secretary Kirstjen Nielson criticizing the “arbitrary and inconsistent” visa decisions. The Department of Homeland Security oversees U.S. Citizenship and Immigration Services (USCIS).

However, Trump indicated last week he was open to making changes to the H-1B program that would benefit workers and employers following a meeting with congressional leaders over the federal government shutdown.

Neither Simple Nor Certain

The process for employers to petition for an H-1B visa on behalf of a foreign worker has become anything but simple or certain under the Trump administration.

Although the number of H-1B petitions filed during the last two years has declined, the number of petitions filed continues to far surpass the 85,000 H-1B visas available. The random lottery process for determining H-1B recipients adds more unpredictability to the arduous process. Facing labor shortages and few alternatives to the H-1B visa, companies—particularly those in tech—risk losing their competitive edge due to the inability to hire the best and the brightest.

During the past few years, U.S. Citizenship and Immigration Services has stepped up scrutiny of immigration petitions, particularly H-1Bs, as well as shifted its review standards. That has led to more Requests for Evidence (RFEs), delays, and denials.

The current H-1B program creates difficulties for foreign workers, particularly individuals from China and India who face waits of a decade or more for EB-2 and EB-3 green cards. While these individuals wait for their green cards, many of them must extend their H-1B visas—a process that increasingly unpredictable.

For decades, the U.S. has been able to attract and retain the top global talent for growth and innovation. But if uncertainty prevails for visa holders and the companies looking to employ them, the U.S. risks sacrificing its position in the highly competitive global economy.

Possible Pathways to Citizenship

Creating a path to citizenship for H-1B visa holders would require approval from Congress.

One possibility is that Congress could adopt a merit-based points system for determining which H-1B visa holders would be eligible to receive a green card, similar to a bill introduced two years ago that Trump endorsed. That bill proposed awarding employment-based green cards to immigrants who substantially contribute to the U.S. economy. Merit criteria included proficiency in English, degrees in STEM (science, technology, engineering, and math), a high-paying job offer, age, and entrepreneurial initiative.

In 2017, a Senate bill proposed granting lawful permanent resident status on a conditional basis to Deferred Action for Childhood Arrivals (DACA) recipients, also known as Dreamers. Congress could do the same for H-1B visa holders.

Another possibility could be Congress enacting laws to streamline the green card process for H-1B visa holders who work in areas where there is a national shortage of workers. That what Congress has done to deal with the severe shortage of nurses prompted by the aging U.S. population and attrition within the profession. For example, employers looking to hire nurses are exempt from labor certification, the lengthy and expensive process required for most applications for employment-based green cards.

Moreover, Congress could take a broader approach by making the pathway to citizenship for H-1B visa holders part of a larger immigration reform bill. Congress did that in 1986 with the Immigration Reform and Control Act (IRCA). Among other things, that act provided amnesty to undocumented immigrants who entered the U.S. before Jan. 1, 1982.

What We Need

The U.S. should establish a government department similar to Immigration, Refugees and Citizenship Canada that can prioritize visas and green cards for workers based on the state of the economy and projected labor needs. U.S. immigration policy should be flexible enough to quickly accommodate changing market conditions and labor demands, particularly those brought on by disruptive innovation.

We remain hopeful that Trump will uphold his promise to bring simplicity and certainty to the H-1B application process and provide a path to citizenship.

Until then, let the Alcorn Immigration Law team help you file an H-1B petition or find alternatives to get the employees you need or help you live and work in the U.S. We know that immigration leads to innovation. Reach out to us to get your immigration questions answered or for a consultation.

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