Immigration Trends to Watch in 2013 – Part 1

2012 was a dynamic year for immigration issues: I-9 and Immigration Related Discrimination Fines were at their highest level since the inception of the I-9 requirement in 1987; E-Verify was mandated by several more states; President Obama signed an Executive Order giving Deferred Action to Childhood Arrivals (DACA); deportation of foreign nationals with criminal records continued at a record pace and there was strong movement early in the year for those awaiting green cards in the Employment Based Second Preference (EB-2).

2013 is setting up to be another intense year. In Part 1, I look at the Employment Based  trends to watch in 2013, including the H-1B Cap, EB-2 and EB-3 backlogs as well as the possibility of backlogs in EB-5. With the unemployment rate ticking slowly down and signs of life returning to the economy, pressure on employment based visas will sharpen.

In Part 2, to be published on Monday, January 14, I look at worksite enforcement, the new provisional waiver program and the possibility of immigration reform. With the presidential election behind us and the Obama administration settling in for another 4 years, there are some things we can count on: Strong worksite and interior enforcement; new programs and customer service improvements from USCIS as Alejandro Mayorkas, Director of USCIS continues in his post; and a loud debate in Washington over immigration reform.

H-1B Visa Cap Could be Reached during first week of April 2013:  The H-1B cap for 2014 could be reached as early as the first week of April, soon after the application period opens on April 1, 2013. Last year, the cap was reached on June 11, 2012; the year prior it was November 26, 2011. With the economy improving and the pent up demand for H-1B visas since June 2012, advocates and officials alike are advising employers to prepare their H-1B applications for filing in the first week of April.

Employers should review the immigration status of all employees on Optional Practical Training as well as those in the hiring pipeline from abroad to determine if and when H-1B status will be required at any time during the remainder of 2013 through April 1, 2014. If the answer is yes, employers should get in touch with immigration counsel now, to prepare those applications for an April, 1 2013 submission.

EB-5 Investor Visa Program will be hit with Visa Backlogs for the first time in its history:  The EB-5 program has become immensely popular in recent years. It allows foreign investors and their immediate relatives to invest $500,000 in a US enterprise that will create at least 10 jobs for US workers. A special investment vehicle called a Regional Center, has made the process more certain, cost effective, and smoother for investors, thus greatly increasing demand on the 10,000 cap for EB-5 visas. In the FY 2012, Chinese investors accounted for more than 75% of the green cards issued under this category. Due to country quotas, it is likely that EB-5 visas will be soon backlogged for Chinese investors later this year or early in FY 2014, which begins on October 1, 2013. A backlog will add a year or more to the processing times for eligible individuals.

This development will have huge implications for individual investors as well as for the businesses receiving their $500,000 investment, as often, release of the funds is tied to issuance of permanent residence for the investor and his/her family. All entities involved in the process will need to understand the implications of the backlogs and plan accordingly. I suspect that there will be significant pressure put on Congress by EB-5 advocates to increase the number of visas available for this program. Maybe this proposal could be part of a more comprehensive immigration reform.

Backlogs in EB-3 Will Continue, causing Employees to Jump Ship for Better Immigration Opportunities: The Employment Based green card categories are divided into several preferences. The Second Preference (EB-2) is for those applicants possessing a Master’s degree or a Bachelor’s degree and more than 5 years of experience. The Third Preference (EB-3) is for anyone who has a Bachelor’s degree and less than 5 years’ experience as well as those in skilled positions that require a minimum of 2 years of experience.

The current wait for all applicants in the EB-3 category, except those from China and India is about 6 years. The current wait for Indian nationals in EB-3 is at least 10 years and for Chinese nationals, the wait is about 7 years. Compare that with the waits in EB-2. For all nationals except Indian and China there is no backlog at all in EB-2. For Indians it is about 7 years and for Chinese, it is about 5 years. It should be noted that the waiting time fluctuates wildly in EB-2 for Indian and Chinese Nationals, but regardless of the fluctuations, EB-2 is exponentially faster than EB-3.

As a result of the extreme differences in categories, many highly skilled immigrants stuck in the EB-3 backlog are job hunting for new positions with employers who will promise to file for them in EB-2 and who will quickly after hire. Often, immigration sponsorship and timelines are the number one deciding factor for these candidates in determining whether to take a new position.

Employers in the foreign national candidate market should be sure to determine how much time a worker has remaining on his/her H-1B and whether any previous employers have started green card sponsorship applications. These questions are important for an employer to know so that it can understand whether green card sponsorship is feasible within the necessary timelines.

Similarly employers with many of those foreign workers stuck in the EB-3 backlog should be looking for ways to assure their employees that they are doing everything possible to help the employee maintain immigration status and to wait it out without too much pain. These employers may also have to consider ways to move their employees to EB-2 when warranted by their employment circumstances.

To be continued. Read Part 2 on Monday, January 14, 2013 for more trends to watch.

About vbimmigration

Immigration Law Partner at Duane Morris, LLP. 17 years representing companies and individuals in all aspects of immigration law. E-Verify and I-9 compliance; working visas; green cards; consular processing citizenship and deportation.
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