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America to H-1B Worker: 'Thank You For 6 Yrs. Work. Now Go Home'. By Roger Algase

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The following is a slightly revised version of my original October 18 post:

There are many ways that immigrants' lives can be damaged or destroyed. One is the obvious way of keeping desperate refugees out of a given country because they are from a different culture, religion or ethnicity from the majority of citizens in the host country. See my previous post, dated October 18, about the refugee and migrant crisis in Europe.

But there are perhaps less obvious, but no less damaging ways in which anti-immigrant xenophobia can have a negative effect on the lives of immigrants. I am referring to laws which force immigrants who may have spent some of the best years of their lives contributing their skills and education (not to mention their taxes) to a country's economy and society, and who may be thoroughly assimilated into the host country's society and culture, to leave and return to their home country after a certain number of years.

For an example, take the 6-year limit on H-1B workers in the US. H-1B is, of course, listed as a "temporary" or in immigration law jargon, "non-immigrant" visa, but ever Section 205(b)(2) of the Immigration Act of 1990 was enacted, this visa has been temporary in name only. In that year, the requirement of showing "non-immigrant intent" was abolished and H-1B visas holders were allowed to apply to be "immigrants", i.e. permanent residents, without losing their "non-immigrant", or temporary, status.

This is known to the immigration law as "dual intent", according to which one can be a temporary worker and an intending permanent resident at the same time - both fish and fowl, to paraphrase the old saying.

There are now also various ways in which H-1B visa holders seeking green cards and now extend their H-1B work permission beyond the initial six years, according Sections 104 and 106 of the American Competitiveness in the 21st Century Act (AC21). But all of these provisions require that the person seeking to extend beyond six years must have an employer to be the green card sponsor.

But what about H-1B professionals who have have not been able to find a an employer who will sponsor them for a green card during the initial six-year period? Are these H-1B workers making any less of a contributions to our society and economy? Are they any less American in spirit and attachment to this country?

One of my clients, who will remain nameless, is going through this heart-wrenching life and career crisis right now. She is at the end of her six years of H-1B authorization, and her H-1B employer, after some uncertainty and equivocation which has lifted up her hopes but not yet realized them, has not so far decided to sponsor her for permanent residence.

This is not to blame the employer. There are many reasons why a given company may not want to go through and the time, effort and expense of sponsoring someone for a labor certification green card through the less than employer-friendly PERM system. But finding another employer to sponsor her, now that her H-1B work permission has run out, may be a difficult, uphill task.

My client has a degree in a professional field from a US university and has used her education and expertise during the past six years of H-1B to help many US-based individuals and businesses cope with the challenges and complexities of the field, often requiring her to use her native language.

If she were able to find a green card sponsor, there is little doubt that she would meet the requirements for labor certification, since there are few if any US workers who have her combination of education, experience, skills and language ability, all of which are needed for her current job.

Her English is fluent; many, if not most, of her friends and acquaintances are Americans, and she is, for all intents and purposes, just as much a member of American society as someone who was born and grew up here.

Nor is she from a poor country. If she has to go back to her country of citizenship. she might be able to achieve a higher position and make more money than she is doing here. But, after nearly a decade of studying and working in America, she feels that this is her home and she wants to be able to continue contributing to our society.

She cares about America, its society and its people. She believes strongly in her personal mission to use her skills in order to make America a better place.

What would America gain by forcing her to leave this country now, merely because, unlike some of her more fortunate colleagues, she has not been able to find an employer willing to go through the effort and expense of sponsoring her for a labor certification? But that is what our current H-1B law requires.

Is a legal immigration system which depends so heavily on the vagaries and uncertainties of sponsorship by a particular employer one that is just and fair to our most capable, highly skilled and hard working immigrants? Is it fair to America, to our traditions and ideals as a land of opportunity and justice for all?

These days, we hear a lot about the need to overhaul our legal immigration system, not just our "broken" system for dealing with unauthorized immigration. America's H-1B laws and the rest of our employment-based legal immigration system certainly need an overhaul.

But this overhaul should not be based on fear and stereotyping of skilled immigrants as "job- stealers" or threats to the wage levels of US workers, as too many irresponsible, demagogic, or simply ignorant public figures are relying on to advance their own careers.

One of the commentators to the original version of this post, whose comment appears below, has done us a service by providing a collection of such H-1B myths, some coming from so-called "experts" who ought to know better. But as the great Roman poet Lucretius wrote more than 2,000 years ago:

"Tantum religio potuit suadere malorum."
("Myths can lead to such great evil.")

Instead, we need to overhaul our legal immigration system in a way that will recognize and reward the contributions that educated, skilled immigrants are making to our society, and allow both them and America as a whole to benefit from their continued presence here, rather than forcing them to leave after an arbitrary, limited number of years.

America needs an employment-based immigration system closer to Canada's point system, where the ability to become a permanent resident is not tied to a job offer from a specific employer, but rather to one's overall education, experience and likelihood of being able to find employment based on one's skills.

If we had such a system, we would not be sending highly educated, skilled professional workers back to their home countries after they have spent some of the most important years of their professional careers helping American companies to stay competitive, grow and create jobs for American workers.
______________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 30 years, he has been helping mainly skilled and professional workers obtain work visas, green cards and US citizenship.

Roger's email address is algaselex@gmail.com


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Updated 10-20-2015 at 07:32 AM by ImmigrationLawBlogs

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Comments

  1. Unregistered222's Avatar
    Roger,

    Since you are an immigration lawyer it should be clear to you that :

    "The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations"

    H1B is a non-immigrant visa by design which is used to employ foreigners temporarily. Why are you twisting the facts? You are destroying your credibility by doing that, you know
  2. ImmigrationLawBlogs's Avatar
    I respectfully suggest that you go and take another look at the H-1B law before you write about this subject again. H-1B is a "dual intent" visa. That has been the law for the past 25 years.

    Roger Algase
    Attorney at Law
  3. Unregistered222's Avatar
    No, it is you the one who should be reading the law. I said that H1B is a non-immigrant visa and it is 100% true maybe you should go back to law school ))) Care to dispute my statement that under Immigration and Nationality Act, section 101(a)(15)(H) H-1B is a non immigrant visa? Please quote some kind of a reference though
  4. ImmigrationLawBlogs's Avatar
    In 1990, the immigration law was changed to make H-1B a "dual intent" visa which can be used both by people who intend to work temporarily and by people who intend to apply for, or who already have applied for, green cards. That has been the law ever since. See Immigration Act of 1990, Section 205(b)(2)

    Roger Algase
    Attorney at Law
    Updated 10-18-2015 at 08:44 PM by ImmigrationLawBlogs
  5. Ronald J. Anderson's Avatar
    Right, see the Immigration Act of 1990. The H-1B category was explicitly created as a non-immigrant visa.

    In creating duel intent for H-1B (and L) the IMMACT90 reads "(other than a nonimmigrant described in subparagraph (H)(i) [i.e. H-1B] . . .)"

    Duel intent allows the alien to change to from H-1B to an immigrant. However, an alien with H-1B status remains a non-immigrant until such a change in status takes place.

    You would expect an immigration lawyer to know that.
  6. ImmigrationLawBlogs's Avatar
    With all due respect, Unregistered 222 is letting himself be confused by the fact that even though an H-1B visa is called a "non-immigrant" visa, it differs from most other non-immigrant visas in that it does not require "non-immigrant intent". In other words, an H-1B visa holder is technically a "non-immigrant" i.e. someone with a temporary visa as opposed to a permanent green card. But unlike most "non-immigrant" visa holders, someone with an H-1B visa is allowed to apply for a green card, i.e. to be an "intending immigrant" without losing his or her non--immigrant status. This is what "dual intent" means.

    In the example of my client, even though she has been here on an H-1B non-immigrant visa, she has not violated the terms of this visa or broken any law by seeking to apply for a green card. Even if she had found a sponsor and already applied for a green card, she would still be entitled to stay and work here with her H-1B non-immigrant visa.

    In fact, under the American Competitiveness in the 21st Century Act (AC 21) signed by President Clinton, she would (in all likelihood) be allowed to extend her "non-immigrant" i.e. temporary, H-1B status beyond the initial six years up until she actually gets the green card, if she had a green card sponsor.

    Unregistered's point seems to be that since she is a "non-immigrant", she is not allowed to apply to become an immigrant, i.e to apply for a green card, so she should not complain if she has to leave the US and return to her country after her 6 years of "temporary" employment are expired.

    This would be correct if she were, for example, a "non-immigrant" visitor or student. People with visitor or student visas can lose their status if they apply to become "immigrants", i.e. permanent residents. But this is not true in the case of people who who have mixed, "dual intent" visas, such as H-1B and L-1.

    That is what Unregistered seems to be unable or unwilling to understand.

    With regard to Mr. Anderson's comment, he does not seem to have read my comments very carefully. i have never said that someone with an H-1B visa becomes an "immigrant" or permanent resident before actually being granted that status. Of course, he or she remains a "non-immigrant" until he or she actually gets a green card. What I said was in fact the opposite of the statement that Mr. Anderson seems to attribute to me. What I actually said is that a "non-immigrant" H-1B visa holder may have "immigrant intent", i.e. intent to apply for a green card, without losing his or her non-immigrant status.

    To summarize, Unregistered 222 appears to have understood my comment, but not the law. On the other hand, Mr. Anderson knows the law but does not seem to have understood my comment.

    Roger Algase
    Attorney at Law
    Updated 10-19-2015 at 02:54 AM by ImmigrationLawBlogs
  7. n6532l's Avatar
    A collection of quote about the H-1B

    Milton Friedman:

    "There is no doubt, that the [H-1B] program is a benefit to their employers, enabling them to get workers at a lower wage, and to that extent, it is a subsidy."

    Ben Bernanke, Chairman of the Federal Reserve:

    ?Simply producing more engineers and scientists may not be the answer because the labor market for those workers will simply reflect lower wages or, perhaps, greater unemployment for those workers.?

    Vivek Wadhwa of Duke University, a supported of more foreign workers (he is one):

    ??the problem isn't the supply, it's the demand?we have enough engineers and scientists. The problem is that the salaries aren't there.?

    ?I know from my experience as a tech CEO that H-1Bs are cheaper than domestic hires. Technically, these workers are supposed to be paid a ?prevailing wage,? but this mechanism is riddled with loopholes. In the tech world, salaries vary widely based on skill and competence. Yet the prevailing wage concept works on average salaries, so you can hire a superstar for the cost of an average worker.?

    Sen. Robert Bennett (R-Utah):

    "Once it's clear (the visa bill) is going to get through, everybody signs up so nobody can be in the position of being accused of being against high tech. There were, in fact, a whole lot of folks against it, but because they are tapping the high-tech community for campaign contributions, they don't want to admit that in public."

    Rep. Tom Davis (R-Va.):

    "This is not a popular bill with the public. It's popular with the CEOs...This is a very important issue for the high-tech executives who give the money."

    Cohen & Grigsby, holding seminars on how to legally avoid hiring qualified Americans with Lawrence Lebowitz?s famous quote explaining the PERM application process to employers:

    "Our goal is clearly not to find a qualified and interested U.S. worker, and that, in a sense, sounds funny, but it's what we are trying to do here."

    Joel Stewart immigration lawyer:

    "An employer who wants to hire a foreign national has an arsenal of legal means to reject any U.S. applicant."

    Senator Bernie Sanders (I-Vt.):

    "What many of us have come to understand is that these H-1B visas are not being used to supplement the American workforce where we have shortages but, rather, H-1B visas are being used to replace American workers with lower cost foreign workers."
  8. ImmigrationLawBlogs's Avatar
    The above H-1B quotes are an excellent and entertaining collection of modern mythology. My hobby is reading the classics, and there are many wonderful collections of ancient mythology. Probably the greatest is Ovid's magnificent Latin hexameter epic poem:
    Metamorphoses.

    While mythology is entertaining, it can be dangerous and destructive if people take the myths too seriously. More than 2,000 years ago, the great Latin poet Lucretius warned against taking action on the basis of myths in his great didactic poem: De Rerum Natura ("On the Nature of Things"). He wrote: Tantum religio potuit suadere malorum. ("Myths can lead to such great evil.")

    The destructive myth that Lucretius was referring to involved the ancient Greek story of Iphigenia, who was sacrificed by her father, Agamemnon, on the recommendation of certain priests who said that killing the daughter would bring favorable winds for the father's battleships. (According to the myth, the sacrifice indeed achieved the desired result.)
    There were no H-1B visas in Lucretius' time as far as I know. But if he were around now, I am sure that he would recognize the appropriateness of his immortal line in the context of the H-1B myths to the effect that H-1B workers steal jobs and lower wages. The client I refer to is no Iphigenia. But her predicament is one more example of the truth of Lucretius' famous line, which Voltaire once wrote would last as long as there continues to be a human race.

    Roger Algase
    Attorney at Law
    Updated 10-19-2015 at 09:05 PM by ImmigrationLawBlogs
  9. EnglishStudent's Avatar
    Roger Algase is a New York immigrant lawyer and has been working to help highly skilled and educated immigrants obtain their green card. His usual blogs are about foreign affairs and immigration pulled into one. The blog that I chose is titled ?America to H-1B Worker: Thank You for Six Years of Work. Now Go Home.? Basically, Algase does not want immigrant workers to do work here and then be banished back to their country. He feels as though hard working immigrants should not be overlooked and should be rewarded.
    Although Roger?s views are biased, (it is his job) I for one, fully agree with him. The client that he mentions is highly skilled and very well- educated. She could go back to her country help them; instead she wants to stay in America because she can contribute her culture and knowledge here. Her contribution to the United States is priceless and because of her background she is able to help many more. ?My client has a degree in a professional field from a U.S. university and has used her education and expertise during the past six years of H-1B to help many U.S. based individuals and businesses cope with the complexity of the field, often requiring her to use her native language.? There is a six year limit for immigrants to work in America unless they obtain their green card. So basically, it is using them for their service and dedication for six years and then tosses them back into their country after they have already assimilated to our culture and ways of life. Companies are very reluctant to hand out the green cards making it difficult for immigrants to stay in the States. These people are making a difference for the companies, for America, but you will not give them the card for what reason? Because they are not of American descent, because they were not born here? They are just as American as the ones who were born here, they pay taxes, they want to live the American dream, they struggle, and essentially they are American despite what their birth records say. Immigrants are not taking ?American jobs? as ignorant people say, but they are providing opportunities to us to attain those jobs in numerous fields.
    Bottom line is, hard- working, highly- skilled, highly- educated immigrants should be allowed to stay in America and contribute to our society.
  10. ImmigrationLawBlogs's Avatar
    Of course I agree with English Student. Our current H-1B law makes an H-1B worker's ability to stay in the US beyond the initial six year H-1B limit entirely dependent on whether or not there is a employer willing and able to sponsor the person for a green card. In the case I have mentioned, the employer decided not to sponsor her. Therefore, she may have to leave the US unless she can qualify for another visa.

    Does she have any less skill, experience and ability to contribute to America than someone else in her situation who was lucky to have found a more cooperative employer?

    This is why the Canadian immigration point system is more realistic. It bases a person's usefulness to a country's economy and society on his or her skills and the needs of the country's society in general, not the limited needs of only one particular employer.

    Roger Algase
    Attorney at Law
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