In media coverage of immigration reform, one of the common complaints of anti-immigrant groups is that “illegal immigrants” should have followed the current immigration law to come to the United States.
As someone who advocates every day for people struggling to live and work here, I often wonder if most people realize just how long, arduous, and seemingly arbitrary the path to a Green Card (or even a non-immigrant temporary visa) can be for those who follow the rules. As an example, let's take a look at "Maya"—a fictional character not based on any particular individual, but a representative example of the journey many foreign nationals take.
As many foreign nationals do, Maya first comes to the US as a visitor with her parents as a young girl to visit family friends who moved to the US. After she spends two weeks on the beaches of Florida and goes to Disney World, she thinks that the US is an amazing place.
She always remembers this trip and when she graduates from secondary school in her home country, India, at age eighteen she decides to return to the US as a student to obtain her bachelor’s degree from a US university. With the support of her school which issues an I-20, Maya applies for and obtains an F-1 student visa at the US Consulate in Mumbai. Maya attends college for four years in the US and graduates with a degree in engineering.
After graduation, Maya is offered a job with a company in New York City as a computer systems engineer. Through her school, she applies for and is granted Optional Practical Training (OPT) which is an extension of her F-1 student status. The company really likes Maya and thinks she’s a hard-worker and good fit for the company so they decide they want her to stay beyond the twelve months of OPT.
They decide to sponsor her for a non-immigrant (temporary) visa. The H-1B is the most appropriate visa for a computer systems engineer since the H-1B is for people who have at least a bachelor’s degree with a job offer requiring that degree; however, H-1Bs are subject to a numeric cap limit each year and most years more people apply than there are numbers available. When this happens, there is a lottery, meaning some (often many) people who apply are not selected.
Maya’s company works with an immigration firm for four to eight weeks and invests thousands of dollars in both legal and filing fees to ensure that they have fulfilled the myriad prerequisites for filing. They file Maya’s case on April 1st (the day the H-1B filing period opens) but her case is not selected in the loterry.
All hope is not lost because Maya’s degree is in a STEM field (i.e., science, technology, engineering, and math) and her company is registered in the E-verify system. Therefore, she is eligible for a STEM OPT extension for another twenty-four months of OPT. (The STEM OPT extension used to be eighteen months but now it’s twenty-four.) The following April her company again files the H-1B for her and this time her petition is selected! Maya and her employer are thrilled.
As time goes on, Maya decides she is happy in the US. H-1Bs are normally valid for a total of six years so she wonders what she will do after those six years are up. She thinks about a Green Card, also known as Legal Permanent Residence.
Maya’s sister is a US citizen and decides to file an I-130 immigrant petition for her; however, the backlog for petitions filed by sibling sponsors is about twelve years! Maya decides to ask her employer if they will sponsor her for a Green Card, technically known as an immigrant visa. She has become an indispensable part of the team and so they agree and start the three-step Green Card application process.
The first step, PERM, requires that the employer test the labor market for US workers who can do Maya’s job. Given the technicalities and very specific job requirements, Maya’s employers cannot find any US workers. The process normally takes about a year including the recruitment and processing but the PERM case filed on Maya’s behalf is audited, meaning that the Department of Labor requested additional information. In the end, it takes a total of two years until the PERM is finally approved. Maya’s employer then files the I-140 immigrant petition, which takes eight months to process.
Once the I-140 is approved, Maya gets excited, since she is two-thirds of the way to having her Green Card. But no, the priority date is backlogged. In Maya’s case, the priority date is determined by the date her employer filed the PERM application. This date is important because it determines Maya’s place in line for a Green Card, of which there are a limited number.
The job requirements for Maya’s position and her country of birth are what designate what category Maya must wait in and more importantly how long Maya must wait. The attorney advised her there would very likely be a wait but Maya was hoping her category would have moved more quickly. Since Maya was born in India, there are extensive backlogs in her category. She is told the estimated wait time is ninety years! That’s not a typo—ninety years! She is told that if she had been born in a different country the backlog could be closer to five years, but since she is from India, Maya waits and waits.
Because Maya’s employer filed the PERM labor certification and I-140 immigrant petition and both were approved, her employer is able to extend her H-1B in three-year increments until her priority date becomes current, but in the meantime she lives her life in limbo, unable to travel as she pleases because she has to allot extensive time to getting a visa stamp renewal at a US Embassy or Consulate abroad.
She has hit the ceiling in her department and cannot be promoted any further—but if she changes employer or changes her department, the Green Card process would have to be started all over again. She is also always worried that if her company closes, she may have to start the Green Card process from the beginning with a new company. She wonders why the law allows her to live, work, and pay taxes in the US (on her non-immigrant visa) but does not allow her to cement her permanent status in her adopted country.
I want Maya's story to have a happy ending, so let's say that her relationship with her US-citizen boyfriend of five years is going well and on New Year’s Eve he proposes. The couple files a Green Card application based on their marriage and after seven months Maya finally has her Green Card!
Readers of this blog will probably recognize that this is indeed an extremely rosy picture of the typical immigrant experience. Although not uncommon for a great number of immigrants, in reality many foreign nationals will not have the luck of marrying a US citizen and thereby shortening their wait time.
Instead they will be stuck waiting in the long employment backlog that the current immigration system demands. In addition, this is the story of a foreign national fortunate enough to enter the US as a student and pursue a professional-level job. Many who try to enter the country later in life as skilled workers have little to no avenue to even begin the Green Card process.
There is a common sentiment that immigrating to the US is equivalent to a trip to the DMV: fill out the right forms, pass a simple test, pay a fee, and the Green Card comes in the mail in four to six weeks. I think it’s important for the general public and critics to understand what many foreign nationals have always known—that legal immigrants to the US are frequently met with extreme backlogs, lotteries, and numerous uncertainties in their path both to a nonimmigrant (temporary) work visa and a Green Card.