New Bill Would Fix a Major Problem for High-Skilled Immigrants

Senator Ron Johnson, Chairman of the Senate Homeland Security and Government Affairs Committee, introduced a bill this month that would resolve a major concern for high-skilled temporary workers in the United States. It would allow them to change jobs, get promotions, or start businesses while waiting in line for permanent residency. It would also prevent their children who grew up in the country from being forced to leave if they reach adulthood before their parents become permanent residents. 

The legislation (S. 1040) would create a large number of temporary three-year work visas that would allow foreign workers, entrepreneurs, or investors to live and work in a state that sponsors them. States could sponsor people of all skill types and from any industry. They could renew their status if the state wanted to invite them back. Their employers could also sponsor them for permanent residency (“green cards”) under the existing immigration programs.

In some ways, the program has similar features to the H-1B visa, which is a three-year renewable work visa for high-skilled foreign workers sponsored by a U.S. employer. Employers also have the option of sponsoring H-1Bs for green cards, which allows workers to extend their H-1B status indefinitely until they receive a green card.

As I have written before, however, one problematic provision of the H-1B visa is that those workers whom employers sponsor for a green card cannot change jobs or even receive certain promotions without losing their place in the green card line. H-1Bs also cannot be self-employed or start their own businesses. Because the green card line has a century-long wait for certain workers due to the per-country limits, these rules effectively bind them to their employer and their current position indefinitely. It prevents them from contributing to the economy to their fullest potential.

Fortunately, S. 1040 would prevent this situation from developing under the state-sponsored visa and fix the H-1B. Sec. 3(c) would allow any foreign worker in the United States whose employer’s petition is approved to file an adjustment of status application to become a permanent resident. The application would remain pending until a green card became available, but during this time, the person shall “have a lawful status” and “following a biometric background check, be eligible for employment and travel authorization incident to such status.”

Employment authorization and status means that these workers could have full access to the labor market—change jobs or industries, get promotions or start new businesses. As an added bonus, it would eliminate another significant problem (that I’ve also written about). Under current law, H-1Bs can bring their spouses and minor children with them as they work in the United States. The benefit is limited to juvenile children, however, and even if the child grows up in the United States in H status, they are forced out or deported if they reach the age of 21 before their parent receives a green card.

S. 1040 would also allow workers to bring their children unless the state said otherwise. But if S. 1040 becomes law, it would prevent those children from being forced out. When a worker reaches the front of the green card line and files an adjustment of status application, current law “freezes” the age of any of their minor children for immigration purposes while the government reviews the application and approves their green card. This really only protects them against administrative delays, not the big wait for a green card to become available.

Under S. 1040, rather than waiting until they reach the front of the line to file the adjustment of status, they could file as soon as their employer’s petition for them is approved. Thus, if the child were 12 at the time the employer’s petition is approved, the child would not lose their status even if the parent fails to receive their green card for decades. The Table compares the two approaches. As you can see, S. 1040 basically moves step 5 under current law up to step 2, allowing them to immediately take advantage of the adjustment of status protections.

Table: Green Card Process for Temporary Workers Under Current Law vs. S. 1040

Current law S. 1040
1. Employer’s petition for guest worker to receive permanent residency (green card) is approved 1. Employer’s petition for guest worker to receive permanent residency (green card) is approved
2. Worker waits many years for a green card to become available due to the quotas 2. Worker applies to adjust status to a permanent resident
3. While waiting, worker cannot change jobs/accept certain promotions 3. While adjustment  is pending, worker may change jobs/children who reach 21 may stay
4. Worker’s children who reach 21 lose their status and must leave the country 4. Worker waits many years for a green card to become available due to the quotas
5. Worker applies to adjust status to a permanent resident after reaching the front of the line 5. Government approves adjustment of status and worker receives permanent residency
6. While adjustment is pending, worker may change jobs/children who reach 21 may stay  
7. DHS approves adjustment of status and worker receives permanent residency  

These provisions will have a positive benefit on the economy. Harvard economist George Borjas has shown that the mobility of immigrants creates efficiency gains of $5 to $10 billion because they shift quickly to changes in the labor market. The entrepreneurship of immigrants also creates large productivity gains. Preventing the removal of the children would also benefit the economy. At the 2016 Intel Science Talent Search, the leading science competition for U.S. high school students, 75 percent of the finalists were children of H-1Bs. America should not push these workers away.

Thus, Senator Johnson’s bill will prove a benefit not only to foreign workers in the future, but also to current aspiring immigrants. Letting immigrants achieve their highest potential would have major economic gains for the country.  

Updated 5/22/2017.