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Employers would have much less control over the selection of foreign workers who immigrate to the United States under a Senate bill that creates a "merit-based" points system for awarding employment-based green cards.
President Donald Trump announced his support Aug. 2 for the Reforming American Immigration for a Strong Economy (RAISE) Act, introduced by Sens. Tom Cotton, R-Ark., and David Perdue, R-Ga.
The legislation makes major cuts to family-sponsored immigration, eliminates the diversity visa program and caps refugee admissions, but the proposed overhaul of the way employment-based visas are allocated would impact workforce planners the most.
The United States took in over 1 million legal immigrants in 2015. The RAISE Act would reduce that number by about 50 percent within 10 years, according to Sen. Cotton's office.
Prospects for the bill's passage are slim as Democrats and some Republicans are expected to oppose it, but a merit-based points framework is likely to be included in future immigration reform efforts from both political parties.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
Lynn Shotwell, executive director of the Council for Global Immigration (CFGI), an Alexandria, Va.-based advocacy group for employers that sponsor high-skilled foreign workers and an affiliate of the Society for Human Resource Management, said she recognizes that the U.S. employment-based immigration system needs to be reformed but believes that the RAISE Act is the wrong approach.
"Congress and the [Trump] administration must recognize that employers are best able to determine their skills and workforce needs, not bureaucrats driving a points-based system," she said. "The current employment-based green card preference system is an effective framework for identifying and prioritizing the best-qualified talent for employers. What it does not do is provide employers with enough green cards to access and retain that talent."
The RAISE Act does not increase the number of employer-sponsored green cards, which have been capped at 140,000 annually since the system was created in 1990. And it would continue to count dependent spouses and minor children against the 140,000 cap, leaving roughly half of available green cards for the selected workers.
Per-country quotas for employment-based visas would no longer apply, which would theoretically favor high-skilled nationals from India and China who currently face long backlogs. Currently, no country can receive more than 7 percent of the green cards in any capped preference category.
Employers Lose Influence
The most significant change for employers under the proposal would be removing them from a critical part of the process—companies currently select and sponsor these foreign workers for specific roles—and transferring to the government the responsibility of selecting the most-qualified applicants.
"The RAISE Act would greatly diminish the employer's role in a way that will hurt the American economy," said Andrew Greenfield, managing partner of the Washington, D.C., office of immigration law firm Fragomen. "It would deprive employers of their ability to determine what skill sets are needed within their organizations and to test the labor market for those skills and choose the worker that best meets their needs."
The proposed system would have a two-step process. First, foreign workers would apply online to U.S. Citizenship and Immigration Services for eligibility. They'd receive an immediate score, on a scale of 0 to 100, based on education, age, job, whether they are investing in a business, extraordinary achievements and English-language ability. Twice a year, the agency would invite the top-scoring applicants (foreign nationals must meet a 30-point threshold) to pay an application fee and complete their application with proof of points eligibility. If more qualified applications (including applications from dependents) are received than are available in the annual 140,000 allotment, visas would be issued but admission delayed until the next fiscal year, decreasing the numbers available for the following year.
"One can imagine the backlogs that will be created when hundreds of thousands of people in the existing employment-based preferences need to reapply," said Cyrus Mehta, founder and managing partner of Cyrus D. Mehta & Partners, a New York City-based immigration law firm. The bill does not grandfather in the beneficiaries of approved I-140 petitions who are currently stuck in line awaiting green cards. And reapplying would present some approved beneficiaries with a harsh surprise: "Since they have gotten older by 10 or more years, [some] will lose out on maximum points for age," Mehta said. In addition, "If their approved I-140 immigrant visa petitions are based on non-STEM degrees, even if they have Ph.D.s, they will not get the same points for education as those with master's degrees in STEM fields." STEM stands for science, technology, engineering and mathematics.
The Points System, Explained
Generally, workers would earn more points for:
"These provisions would tie employers' hands in a number of ways," said Rebecca Peters, director of government affairs for CFGI. "This bill's points system ultimately favors those ages 26 to 30 with STEM master's or higher degrees, MBAs, J.D.s, and M.D.s. For example, a 24-year-old with a bachelor's degree from Stanford in a STEM field who meets the bill's base requirement for highly compensated employment and has qualifying English assessment scores could not apply for a green card because he doesn't accrue enough points. A 46-year-old senior manager with a foreign master's degree, with extensive work experience leading product development, that meets the bill's requirement for highly compensated employment and has top English assessment scores could not apply for a green card because she doesn't accrue enough points."
In addition, if the applicant has a spouse who is accompanying or following to join him or her and the spouse accrues lower points than the applicant, the spouse brings down the applicant's total accrued points, Peters added.
There could be a silver lining for some visa seekers. The proposed points system would potentially widen the path for employment-based entry for those without a current job offer, currently open only to a small number of people designated as possessing extraordinary ability, said Julia Gelatt, a senior policy analyst at the Migration Policy Institute, a Washington D.C.-based think tank.
She added that the proposed changes to the employment-based preference system may be smaller than anticipated, with the points structure largely echoing the existing preference for higher-educated, higher-paid workers or for investors, and for those already in the United States on a temporary basis. "Currently, 85 percent of employment-based immigrants adjust to lawful permanent residence from a temporary worker or student visa within the United States, given the difficulty of finding an employer sponsor while abroad and strong demand by H-1B workers and their employers for permanent immigration," she said. "Under the RAISE Act's allocation of more points for a higher-paying job offer, English skills and a U.S.-based STEM degree, those already studying in the United States or working on an H-1B visa would remain at a strong advantage for an employment-based green card. The countries that have the most H-1B workers—India and China—and those that send the most students to the United States—China, India, Saudi Arabia and South Korea—would thus likely dominate the points-based visas system, with some additional advantage to nationals of English-speaking countries."
Overall, Gelatt said, the proposed system may "at best bring a slight upskilling in the employment-based immigration system" but would not allow for the needed flexibility to adjust the overall numbers of green cards to reflect changing economic conditions.
Greenfield explained that in countries with similar points-based systems, such as Canada and Australia, "they have people there, including highly educated people, who make it into the system but are unemployed or underemployed because they were selected for residency based on criteria that aren't necessarily what employers are looking for."
For example, the points-based system in the RAISE Act places a high emphasis on level of education but little or no emphasis on skills, he said.
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