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ACIP and SHRM Release Solutions for Employment-based Immigration
 

By Roy Maurer  3/22/2013
 
 

The American Council on International Personnel (ACIP) and the Society for Human Resource Management (SHRM) released a new guidebook on the U.S. employment-based immigration system, including solutions for immigration reform.

The primer, Navigating the U.S. Employment-based Immigration System, was released to coincide with SHRM’s Employment Law & Legislative Conference, held March 10-13, 2013. ACIP is a strategic affiliate of SHRM.

“A generation has passed since the last overhaul of the U.S. immigration system, and the outdated system must be modernized to help U.S. employers compete in the global knowledge economy,” said ACIP Executive Director Lynn Shotwell, in a news release. “We hope this primer will be a useful resource for policymakers and their staff as they work toward bipartisan solutions this year.”

The glossy 94-page book contains ACIP’s Principles for Immigration Reform and a list of employment-based reform measures aimed at solving critical workforce challenges, such as closing the skills gap.

Areas cited for reform, as part of a larger comprehensive package, include:

  • Employment-based green cards.
  • H-1B and L-1 visas.
  • Electronic employment verification.
  • Processing efficiencies.

Lack of Green Cards

Simply put, there are not enough employment-based green cards in the U.S. immigration system to meet years—and often decades—of backlogged demand, ACIP said in the primer.

“Any immigration reform proposal must eliminate the employment-based green card backlogs and simultaneously provide enough visas to meet America’s future employment-based green card needs,” ACIP said.

One of the principal concerns around green cards is the small fraction that is awarded for employment within the total annual green-card dispersal. Each year just 140,000 visas are set aside for the five employment-based preference categories. In 2011 employment-based immigration accounted for 13 percent of total immigration to the United States, meaning 87 percent of green cards were not awarded based on employment.

According to ACIP, other green-card issues that need to be addressed include the “long and costly” process by which an employer sponsors a worker for a green card and the inequality in wait times due to per-country limits.

Proposed solutions include:

  • Enacting a market-based or escalating green-card cap to respond to future demand.
  • Making green cards immediately available to U.S. high-tech advanced-degree graduates (and their dependents) if the principal applicant has a job offer.
  • Exempting the spouse or partner and children of employment-based green-card holders.
  • Recapturing hundreds of thousands of green cards that went unused in prior fiscal years because of agency delays and making them available today.
  • Eliminating the employment-based per-country limits.
  • Reducing red tape for those waiting in the green-card line by streamlining work and travel authorization.

H-1B, L-1 Visa Reforms

H-1B temporary professional workers are a valuable component of the U.S. workforce; however, “arbitrary caps, along with system inefficiencies, make it difficult for U.S. employers to obtain the H-1B visas they need,” ACIP said.

“While Congress should ideally eliminate the arbitrary H-1B visa cap and allow the market to determine our H-1B supply, there are more limited solutions that can improve employer access to this group of professionals,” ACIP stated, including:

  • Providing “dual intent” to U.S. advanced-degree graduates who have a job offer by enabling this group to go directly to green-card status. More visas would be available to those H-1B workers who are truly temporary and do not seek permanent residence.
  • Lifting the 20,000 H-1B cap exemption for U.S. advanced-degree holders.
  • Allowing those with an H-1B, along with E, L and O visa holders, to domestically revalidate their visas, instead of having to revalidate outside of the U.S.

U.S. employers use the L-1 visa to transfer key international employees to the United States for temporary assignments. “Our fast-paced and interconnected global economy requires that employers have timely access to these professionals to remain competitive, but unfortunately, it has become much more difficult for U.S. employers to reliably and efficiently transfer L-1 visa talent from around the world to the United States,” ACIP said.

ACIP proposes that Congress and the related enforcement agencies “set consistent and predictable policies for L-1 visas that are neither too narrow nor onerous and allow for evolving global business practices.”

This would include not tying labor-market tests to the L-1 because intracompany transferees are brought to the U.S. for a specific purpose and are not filling positions that would otherwise be vacant, ACIP noted.

Worksite Enforcement

Effective worksite enforcement continues to be the centerpiece of any broad immigration reform.

What U.S. employers need is one reliable and secure federal electronic employment-verification system, ACIP said.

“This will require an E-Verify system that better addresses and eliminates identity theft for employers and also creates a truly integrated electronic verification system.”

ACIP proposals for strengthening an electronic employment-verification system include:

  • Pre-empting the growing patchwork of state laws with one reliable and secure federal system.
  • Creating an integrated electronic verification system that incorporates the E-Verify system with an attestation system and ends the duplicative requirement that an employer also complete the paper Form I-9.
  • Preventing identity theft through identity authentication. Employers should be provided with stronger tools to combat identity theft. “Identity theft is the Achilles heel of the E-Verify system, and Congress must address this problem in any reform measure so that employers are not vulnerable to sanctions through no fault of their own,” ACIP said.
  • Ensuring a safe harbor from liability for employers when they rely on government approvals of erroneous authorizations.
  • Applying employment verification to new hires only.
  • Protecting U.S. citizens and work-authorized permanent residents from errors that flag them as unauthorized to work.

Compliant Employer to ‘Trusted Employer’

ACIP’s concept of a “Trusted Employer” program is similar to the government’s Trusted Shipper and Trusted Traveler programs, in that it would allow the government to prequalify U.S. employers that have a proven track record of complying with federal immigration laws and regulations. The Trusted Employer program would streamline adjudication and allow government resources to focus on other priorities, ACIP said.

Currently, the government requires employers to submit a company description, organizational structure, finances and recurring job classifications with nearly every individual immigration petition and application, even though employers may file many each year.

“Trusted Employer would reduce paperwork burden and render more efficient and consistent decisions for employers that have proven their commitment to compliance,” ACIP stated. “Once well-established, the program could be extended across all of the agencies involved in our immigration system.”

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

Related Articles:

Mandatory E-Verify Central to Immigration Reform, SHRM Online Global HR, March 2013

Senate Republicans Stress Enforcement Before Comprehensive Immigration Reform, SHRM Online Global HR, February 2013

Senate Bill Calls for Market-Based H-1B Cap, SHRM Online Global HR, February 2013

Higher Visa Fees, Penalties Foreseen with Immigration Reform, SHRM Online Legal Issues, January 2013

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