Editor’s note: This article was contributed by attorney Charles Kuck as part of Kuck Baxter Immigration’s sponsorship of Global Atlanta.
We’re facing an immigration crisis in this country, but it’s not at the border. It’s in our businesses that rely on skilled and expert labor across every sector of the economy.
Companies are not able to employ enough or the right type of workers, due in part to two immigration issues that were challenges prior to COVID-19 but that are now exacerbated by the lingering impacts of the pandemic.
One is the Deferred Action for Childhood Arrivals (DACA) program that provides work permits and deportation protection to undocumented immigrants who arrived in the United States as children. The issue is again in the headlines after a recent federal ruling that bars new applicants.
The other is the revamping of the H-1B work visa lottery process that is preventing much-need skilled, foreign workers from filling important jobs across the country.
The H-1B dilemma
Corporations in Georgia and nationwide are facing a shortage of highly skilled workers, as H-1B visas are being denied to would-be temporary foreign workers in specialty occupations. Each year, 65,000 of these H-1B visas are available for non-U.S. residents with bachelor’s degrees and 20,000 with advanced degrees from U.S. universities. But the demand for these visas is much greater. This last year, of the 308,000 H-1B lottery submissions made by U.S. employers, 148,000 were for U.S. master’s or Ph.D. graduates!
A key part of the problem is the adulteration of the H-1B selection process by the U.S. Department of Homeland Security.
Rather than visas being awarded via a random lottery, the new process – mandated during the Trump Administration – is based on the number of online registrations an applicant has submitted. Only petitioners whose electronic registrations are selected can then be eligible to file an H-1B cap-subject petition. Under this system, applicants with multiple registrations from multiple employers would have a significantly higher probability of being selected for visas.
This lottery registration scheme is wrought with the potential for fraud, as “consulting firms” and non-legitimate employers submit lottery registrations on behalf of “prospective employees” for which they have no actual positions. From the information we have seen to date, more than 10 percent of H-1B lottery registrations appear to be for these non-existing positions.
There is another twist to this story. In another pending regulation, the U.S. Citizenship and Immigration Services (USCIS) – first under Trump and now under Biden – wants to implement a new visa selection system in which the H-1B visas go to those who will be paid the highest salaries. If more H-1B registrations are received than the cap allows, the remainder will be selected by the USCIS based on the highest wage offered.
The rationale for prioritizing high wage levels is to encourage H-1B employers to offer higher wages or petition for jobs that require more highly-skilled foreign workers, ensuring that H-1B visas will be awarded to the “best and brightest” workers rather than filling lower-wage and lower-skilled jobs.
This process, however, is discriminatory to those employers in less expensive and rural areas of the U.S., as wages are frequently tied to the area of employment. For example, software developers are paid far more in the Bay Area of California than in Macon, Georgia.
To combat these damaging regulations in the H-1B selection process, we have filed litigation and a request for preliminary injunction in Liu et. al. v. Mayorkas, et. al., D.D.C., 21-cv-01725, on behalf of 500 plaintiffs on the lottery registration process, and Humane Society of NY et. al, v. Mayorkas et.al, D.D.C., 21-cv-01349 on behalf of dozens of employers on the new wage-based H-1B selection rule.
Though we are representing 500 visa seekers and a dozen employers, hundreds of thousands of individuals and employers nationwide are affected. Our injunctions demand that USCIS revert to the prior random lottery process that more fairly awards H-1B visas on both a wage and single-entry registration system.
The DACA debacle
Another immigration issue adversely impacting U.S. and Georgia companies is DACA.
A U.S. District Court judge in Texas recently ruled that no new DACA applications will be accepted from foreign-born young people who may have lived their entire lives in the U.S. but are not legal citizens. The existing 616,000 DACA recipients will still be eligible to renew their work permits and obtain travel permission.
DACA should not be fixed in the courts. After nine years of debate, Congress needs to fix this problem. There is overwhelming support in both chambers of Congress to grant legal status to DACA applicants; if the already-passed DREAM Act from the House of Representatives could make it onto the Senate floor, it would likely be approved.
Meanwhile, the cessation of DACA is having a massive detrimental effect on 3,000-4,000 applicants in the metro Atlanta area alone, as well as the more than 81,000 first-time applicants throughout the country whose applications are frozen in place.
The DACA debacle is also impacting a large number of businesses that need these employees. We have dozens of clients who are still waiting for their cases to be decided.
A call to action
A fair system for awarding H-1B visas and for incorporating DACA applicants into the U.S. economy is crucial, especially now, when companies are struggling to fill needed jobs throughout Georgia and the rest of the country.
We encourage the business community to speak out about the importance of enabling much-needed foreign workers to help resolve the current labor crisis. Call your senators (202-225-3121) and your congressmen and -women (202-224-3121) and tell them you want Congress to effectively address reforms in immigration. If you are looking for specific issues to call about, or how to speak about this issue effectively, check out this website from the National Immigration Forum and their Bibles, Badges and Business initiative.