Greg Siskind’s Take on I-140 EADs
It’s no secret that the US has shortages of workers in a variety of fields. Our immigration system seemingly provides a solution to the problem. If an employer is willing to undertake a complicated recruiting process where the position is advertised in a variety of places and the employer is willing to pay the going wage rate in the community, and if the employer can show that there are no available, qualified US workers, then the employer can file a green card application to sponsor an immigrant to fill the position. That would work, except that there are quota rules that mean many, if not most, of those immigrants end up waiting decades in line to receive their green cards. Indians in the EB-3 category for workers with bachelor’s degrees, for example, face backlogs that at least one study estimates may be as long as 70 years.
Many of these immigrants are in the US on temporary work visas and can work for an employer while awaiting the green card. But this is a small comfort. If an immigrant worker tries to change employers, the first employer could seek to withdraw the green card application and the immigrant could end up having to start the whole process all over again. The same is true if the employer goes out of business. And because a green card application is for a specific position at a specific salary in a specific geographic location, employees can find themselves completely immobilized. The green card applicant cannot seek a promotion to work in a higher paid position and cannot accept a transfer to another location. Making any sort of move is dangerous from an immigration standpoint. So people wait. And wait. And wait.
Over the last decade, Congress has discussed these problems. Most members of Congress say the right thing when it comes to dealing with easing the legal immigration process. But when it comes to actually passing legislation to address the long backlogs facing employment-based immigrants, they have yet to make even minor changes, much less the comprehensive reform that many have been seeking. In the summer of 2014, President Obama gave Congress an ultimatum. Start addressing problems in the immigration system or he would use his executive powers to do the job Congress wouldn’t. In November of last year, he gave a prime time speech announcing a variety of executive actions he would take. Most of the media attention was focused on measures addressing the population of people in the US without a legal status. But he also made it clear he would make changes to solve the myriad of problems in the employment-based immigration system.
The President announced many serious ideas in his November speech that would improve the legal immigration system. One idea not initially mentioned by the Administration but that has since gained support from the White House would give “portability” to workers waiting in long green card queues. Those with I-140 applications (employment-based green card petitions) pending for a year or more would be able to file for a work document that would make it possible for people to accept promotions, change employers and even start their own companies. USCIS would not revoke a green card application just because an employer requests it be revoked or because the employer goes out of business. As long as an immigrant continues to work in the same or a similar occupation, the green card application will eventually be approved when the individual gets to the front of the visa queue. Affording broad employment authorization to those whose skills have been shown to be needed in the U.S. economy is an important step, and while there are many unanswered questions about maintenance of nonimmigrant status, eligibility for adjustment of status, accrual of unlawful presence, and other processing issues, employment authorization for approved I-140 beneficiaries would be a welcome signal.
This change will dramatically improve the lives of these would be green card holders. But it’s also good for American workers and for our broader society. Giving workers this new mobility means giving them more power to bargain for higher salaries and better conditions. And the upward pressure on their wages will mean higher wages for American workers as well. But the bigger dividends will come when many of these workers are given the freedom to unleash their entrepreneurial spirit. More than 25% of our country’s high tech companies started between 1995 and 2005 have an immigrant founder. These include companies like Google, Yahoo, EBay, Instagram and Tesla that contribute billions of dollars every year to the US economy. We need more of these immigrant success stories and changing the rules to allow green card applicants to get work cards is one way to seriously increase the odds that will happen.
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