Understanding the Issue

At the undergraduate level, foreign national students earning degrees from US colleges in STEM majors make up between 8% and 10% of the total university STEM student population. At the STEM master’s and PhD levels, the number of foreign students grows dramatically, depending on the field of study, to 40% – 57% of US post-graduate degrees awarded in STEM.

In electrical engineering and computer science, for example, some estimates place F-1s at 65% of all master’s and PhDs combined.

F-1 VISA CHALLENGES

The F-1 visa does not allow foreign students to declare any intent to immigrate—permanently remain—in United States.
We train foreign national STEM students in the most globally advanced science and engineering practices, and then our immigration system requires them to leave.

This is known as the “dual intent” problem.

Even when foreign students are successful in securing longer term work authorization, there is no clear path to a permanent, employment-based (EB) green card. Instead, these young, US-educated STEM professionals are often forced to accept the terms and limitations of temporary visas like the H-1B for years and even decades.

In the end, many F-1 STEM grads begin their US careers relying on the limited work authorization offered as part of their F-1 student visa program, Optional Practical Training (OPT).

OPT is an extension of the F-1 student visa itself and provides an initial 12 months of work authorization to F-1 visa holders following graduation from a US university, and is limited to jobs immediately related to each F-1 student degree holder’s field of study.

For F-1 STEM grads, the OPT period may be extended by an additional 24 months.

Again, the job must directly relate to the F-1 STEM grad’s field of study, and the employer must justify the extension through regular reporting on the degree-related training opportunities that OPT recipients receive. Recent regulations require employers to compensate STEM OPT professionals at a level commiserate with their American colleagues performing the same or similar work.

OPT CHALLENGES

While the additional work authorization period for STEM OPT offers F-1 STEM grads immediate opportunities to work in the United States, these US-trained, foreign professionals still face the prospect of gambling with their careers in the H-1B visa lottery.

Many leave to compete against the US rather than play the odds.

While almost all F-1 STEM grads who choose to apply their skills in the United States end up on temporary visas, like H-1B, not all H-1Bs are former F-1 students seeking EB green cards.

Many H-1Bs are truly temporary workers with skills in short-term demand, meaning they will work in the United States for a limited period of time and return to their home countries when their visas expire. How many of each type are in the system is unknown even by the agencies who administer the program.

Regardless, every year more than 27,000 American employers desperately turn to the H-1B visa system in order to secure work authorization for their top foreign professional job candidates —both those who will be truly temporary as well as those who will eventually be permanent.

According to agency personnel, the vast majority of these 27,000 US employers have workforces composed almost entirely of US workers. Most of these employers will seek only 1 H-1B visa and approximately 1 in 5 are considered small businesses.

H-1B Facts and Figures:

• Applications for the annual allotment of H-1Bs opens April 1st of every year for hiring an employee on October 1 of the same calendar year (next fiscal year).
• In years of stronger economic growth, USCIS receives many times more H-1B applications than available visas. As a result, the visas are distributed by random lottery and are typically exhausted within days of April 1.
• Employers compete for a total of 85,000 visas–65,000 visas are available annually plus another 20,000 for graduates with advanced degrees from US universities.
• Employers hiring an H-1B visa holder must at a minimum:
  • Pay the higher of the actual or prevailing wage to all workers with similar experience and qualifications for the position.
  • Pay a $325 application fee along with thousands of dollars in legal and administrative fees annually.
  • Pay an education and training fee of $1500 per application (unless employer qualifies to pay $750 fee) to provide scholarships and to train U.S. workers.
  • Pay a $500 anti-fraud fee per application to fund programs to prevent and detect H-1B visa fraud.

H-1B VISA CHALLENGES

Too many foreign-born STEM professionals who are for all intents and purposes permanent members of the US economy are trapped on restrictive temporary visas for years and decades. The H-1B system is overcrowded and becoming more unpredictable for employers, foreign professionals, and the government alike.

Additionally, today’s H-1B system provides no means for ensuring that companies demonstrating the best practices within the H-1B program are prioritized in the H-1B lottery. The US H-1B visa system should work first for those companies who fulfill the “spirit” of the law as well as its letter.

For the majority of F-1 STEM grads, the EB green card they eventually receive was approved at the beginning of their career. The only obstacle preventing their full ascension to legal permanent resident—i.e., “US worker” status—has been the EB green card backlog.

EB GREEN CARDS FACTS & FIGURES:

• Approval of an application for an employment based green card depends on satisfying many conditions, including prominently:
  • Labor Certification: The Department of Labor (DOL) looks at the market where an EB green card applicant will work. If the DOL determines that the foreign professional will not negatively impact existing US workers, the Labor Certification condition is satisfied. If the DOL determines that sufficient numbers of current US workers exist to fulfil the job requirements sought by the employer, the application is rejected.
  • “Name Check”: Following a successful Labor Certification process, EB green card applicants are subjected to a rigorous review of their identity for criminal and national security purposes. This process requires a name be actively cleared or the application is held. If the name check returns negative results, the application is rejected.
• The annual EB green card is capped at 140,000 visas covering five worker preference categories based on skill level (EB-1, EB-2, and EB-3) and purpose (EB-4 and EB-5).
  • The EB-1 visa is for “priority workers” and is allocated 40,000 visas per year for foreign professionals of “extraordinary ability” in science, the arts, education, business or athletics as well as “outstanding professors and researchers” or “multinational executives and managers.”
  • The EB-2 visa is for foreign professionals holding advanced degrees or persons of exceptional ability. 40,000 visas are allocated annually, plus any visas that are not used in (“spill down” from) the EB1 category.
  • The EB-3 visa is for skilled workers, professionals, and other workers (the latter capped at 10,000 a year). 40,000 visas are allocated annually, plus any visas that are not used in the EB-2 category.
  • The EB-4 visa is for “special immigrants” such as religious workers, physicians, dependents of diplomats, and others.
  • The EB-5 visa is for investor immigrants who create employment.

EB GREEN CARD CHALLENGES

The single biggest challenge facing the EB green card system is the tremendous backlog of applicants. 

Most foreign STEM professionals receive their EB green cards years after the US government has already certified they are not displacing US workers and present no danger to our society.

The primary causes for the backlog can be traced to three major contributing factors:

1. Numerical Limits: the overall EB green card allocation is simply too small to keep pace with demand.
2. Per Country Caps: applicants from any single country are capped at 7% of the annual EB green card allocation. As EB immigrants are approved for green cards based solely on their ability to economically contribute to the United States, diversity distributions like “Per Country” caps run completely contrary to the spirit of the EB green card system.
3. Spouses and Children: Unlike H-1B visas, the spouses and children of EB applicants count against the EB green card allocation. As a result, spouses and children take over half of the EB green card allotment every year.