Immigration issues are currently a hot topic in the news! In our ongoing series of blog posts on international student immigration issues, our guest-blogging attorney, Laurie Woog, who specializes in immigration and naturalization issues, takes on the most recent immigration proposals being considered by the U.S. government and explains their impact on international students.
Many international students come to the United States for an undergraduate or graduate degree and then happily go home to their friends and family. In fact, obtaining a student visa is contingent on demonstrating a true intent to return abroad at the conclusion of one’s studies. However, inevitably, some students change plans after living in the United States for a while and decide to work or relocate here. While this may seem like a simple process, under current immigration law it is extremely difficult for many foreign students to remain in the U.S. for more than a year after graduation.
There are two main obstacles:
First, there is a durational limit of 6 years in the H-b visa category, the temporary classification appropriate for most foreign professionals and college graduates. Also, H-1b employees are considered “out of status” as soon as they are terminated or leave their jobs without new, sponsored employment, and many workers in this situation have to leave the United States.
Second, obtaining legal permanent residence (a green card) is no easy feat. Although students from India or China may outnumber those from Turkey or Ghana by the thousands – even the hundreds of thousands – each country is allotted the same number of immigrant visas. Thus, under current processing times, an H-1b visa holder from India with a master’s degree in computer science will not be eligible to file her application for a green card until 9 years after her employer initiates the process. This lengthy waiting period, coupled with the difficulty of remaining in valid H-1b or other temporary status in the interim, compels many foreign students to contribute their intellectual capital to economies abroad.
As President Obama stated in a January address on immigration, “Right now, there are brilliant students from all over the world sitting in classrooms at our top universities. They’re earning degrees in the fields of the future, like engineering and computer science. But once they finish school, once they earn that diploma, there’s a good chance they’ll have to leave our country.”
In recent years, Congress has failed to act on proposals to counteract this situation. 2013 may be different. A bipartisan group of Senators laid out a comprehensive immigration reform package alongside President Obama’s principles of reform. What has changed? Republicans acknowledge the need for Latino support at the polls. Business and labor leaders are looking for common ground. Employers and political leaders recognize the economic benefits of streamlining immigration procedures to retain foreign talent in the U.S., particularly graduates in the science, technology, engineering and math (“STEM”) fields. Without such measures, the U.S. risks a “reverse brain drain” or talent outflow.
Many current proposals will affect international students studying in the U.S. The Senate framework would award a green card to immigrants who earn U.S. graduate degrees in STEM fields, a measure the President supports. Some senators have introduced the Immigration Innovation Act of 2013, which proposes to raise the cap on H-1b visas from 65,000 to 115,000 as well as remove the quota on visas for science and technology workers with advanced degrees. Such programs can co-exist with measures to increase the effectiveness of STEM education in the U.S. for all. The Senate blueprint also envisions reducing backlogs in family and employment-based visa categories, which will reduce uncertainty and allow more mobility in the workplace.
On the theory that immigration reform can spur economic progress and provide jobs, rather than reduce the number of jobs available to Americans, which some opponents fear, President Obama has proposed increasing visa numbers, creating “start-up” visas for entrepreneurs, and creating a new visa category for highly skilled immigrants to work in federal laboratories on national security programs if they pass a background check.
Sometimes international students are unable to remain in the United States because of immigration-related family issues. Currently, the foreign spouse of a U.S. citizen cannot obtain a green card based on a same-sex marriage. President Obama has indicated his willingness to allow such benefits. Many H-1b visa holders opt to leave the United States because their foreign spouses, in H-4 status, cannot work here. (See Matt Richtel, Tech Recruiting Clashes with Immigration Rules, N.Y. Times, Apr.12, 2009.)Therefore, the United States Citizenship and Immigration Service (USCIS) proposes changing its rules to permit some of these spouses (H-4) to seek employment.
The DREAM Act might be enacted as part of comprehensive immigration reform or as a separate measure. This legislation would offer a path to citizenship for undocumented immigrants who were brought to the United States as children, contingent on a clean record, graduation from high school in the U.S., and attendance in college or military service. The Obama administration’s current “Deferred Action” program, or DACA, does benefit some undocumented students who want to attend college but does not provide a permanent path to residence at this time.
In sum, international students applying for admission to a U.S college, or currently here on a student or temporary visa, should continue to watch and read the news to learn about developments in the immigration field or consult a qualified attorney for more information.
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