Immigration is a tool employers can use to source talent for jobs when the right talent in the right numbers isn’t available domestically to fill open positions. In this episode of All Things Work, host Tony Lee is joined by Grossman Young & Hammond’s Becki Young, an attorney specializing in business immigration, to discuss the state of workplace immigration in the U.S. under the Biden administration and upcoming changes to the rules and procedures that guide how workers move to and from the U.S. for employment.
Immigration is a tool employers can use to source talent for jobs when the right talent in the right numbers isn’t available domestically to fill open positions. In this episode of All Things Work, host Tony Lee is joined by Grossman Young & Hammond’s Becki Young, an attorney specializing in business immigration, to discuss the state of workplace immigration in the U.S. under the Biden administration and upcoming changes to the rules and procedures that guide how workers move to and from the U.S. for employment.
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This episode of All Things Work is sponsored by UKG.
Speaker 1:
This episode of All Things Work is sponsored by UKG. UKG offers HR and workforce management solutions that support your employees and transform your workplace into a work of art.
Tony Lee:
Welcome to the All Things Work podcast from the Society for Human Resource Management. I'm your host, Tony Lee, head of content here at SHRM. Thank you for joining us. All Things Work is an audio adventure where we talk with thought leaders and taste makers to bring you an insider's perspective on All Things Work. In today's episode, we are talking about immigration, it's role in sourcing talent for jobs and the laws, rules, and procedures that guide how workers move from one country to another for the purpose of employment. The rationale for protective approaches that limit immigration is to preserve job opportunities for a country's existing citizens, rather than allow jobs to be filled by workers from other countries.
However, a country's existing labor force may not have the right skills in the right numbers to fill open positions. So immigration is a way to source talent for jobs at all skill levels, by expanding the pool of qualified applicants to include workers from other countries. Today, we'll be discussing the current state of US immigration laws and how changes to these laws can help employers more effectively meet their talent needs.
Joining me is Becki Young. Becki is an attorney specializing in business immigration. In addition to having worked in the field for more than 20 years, she's also one of the co-founders of Grossman Young & Hammond, an internationally recognized immigration law firm based in Silver Spring, Maryland. In her work, Becki facilitates the sponsorship of foreign professionals, trainees, interns, and other individuals of extraordinary ability and provides counsel on immigration law to employers across a broad range of industries. Becki also works to ensure that applicant's family members are able to accompany them and live together during their time in the US. She's been recognized as a best lawyer in immigration by Washingtonian magazine. Becki, welcome to All Things Work.
Becki Young:
Thank you so much for having me.
Tony Lee:
Wow, it's a great pleasure. So why don't we just start with an overview of where you see US workplace immigration today, given the new administration?
Becki Young:
So definitely as immigration lawyers working in business immigration, we feel like things are looking up. We've had a really interesting ride for the past few years. We had an administration that was very hostile towards immigration and now we have a new administration that has expressed a willingness to make some positive changes. Most of the changes that have been made so far by the Biden administration do not relate to business immigration. So there have been a lot of changes and developments on humanitarian front with regard to the Southern border, et cetera, but there definitely have been some mood shifts in business immigration.
And one thing that happened yesterday, which if you're not a lawyer may not really seem all that important, but there was a restoration of deference. So basically if you have a visa in the US and you want to extend that visa, it used to be that there was deference.So if the immigration service thought that you were a specialty worker once and then you asked to extend your stay as a specialty worker, they would generally defer to the prior decision unless there was some really good reason not to.
In the Trump administration, that guidance was reversed and everything was reviewed anew, Denovo. So regardless of how long you'd been here, how many times you'd proved your case, you had to prove your case anew every time. And just recently, the Biden administration restored the concept of deference to prior adjudications, which means that it really, as I said, is just signifying a mood shift at the agency that the agency is going to be more reasonable toward business and is not going to view every case with suspicion. And hopefully this will save a lot of resources in terms of the agency having to process every case as a brand new case.
Tony Lee:
So let's talk about, what types of employers do you think are greatest need of immigrant talent now that are paying closest attention to this?
Becki Young:
So there are a number of sectors that are always in need of talent. One that is near and dear to my heart is the restaurant industry. And the restaurant industry has had a labor shortage for many, many years. And I just spoke yesterday to a colleague who works closely with the local restaurant industry. And he said the labor shortage that has existed for many years is only worse now, a lot of US workers have left the industry during the pandemic and don't intend to come back. Foreign workers can't really get into the country right now. The Biden administration has not taken any action about the millions of undocumented people who are in the United States, many of whom work in the restaurant industry now. They haven't had so much time to do so, I'm not blaming them, but I'm just saying that's a problem that needs to be addressed.So the restaurant industry is surely experiencing severe labor shortage, more severe than probably ever before.
There are other industries that work with unskilled or low-skilled workers, such as construction or agriculture that continue to experience dire labor shortages. And then interestingly, also at the opposite end of industry, so information technology, some financial positions, there are labor shortages. The data security field, people who try to keep your information safe online, that is a very difficult type of job to fill. And often foreign workers are sponsored for those type of jobs, really highly quantitative number crunching fields, we find that often us workers cannot be found in sufficient numbers. You hear all the time about STEM fields and shortages of US workers and STEM and what the government is doing to try to train US workers. But for the time being, there is a real shortage of STEM workers. So those are the areas at the high end and the low end of the labor market, where we as business immigration lawyers really see a need.
Tony Lee:
That makes so much sense, Becki. Hospitality as well is another industry. And in our reporting, we found that a lot of rural areas are having difficulty finding employees because of limited immigration. Currently about 140,000 employment based green cards are allowed. And the new administration is proposing raising that to 175,000, plus H-1B, H-2B visas are in very short supply. Plus the time it takes to process is incredibly long. So where does this leave us?
Becki Young:
It leaves us in a bit of a pinch. So to start with processing times, processing times have really extended exponentially. I think that it was a deliberate attempt by the prior administration to gum up the machinery of immigration. And now because of the pandemic and because of those efforts, it's going to take a while to work through the backlog. So this is not at the agency, but just as an example, visa processing around the world. So US consulates are still only operating at about 25% capacity and they have a huge backlog of cases that they've accumulated over the past year that they have to work through.
And the same is true with, with the agencies here in the US, the immigration service, the department of labor, they already had a backlog and the Trump administration and the pandemic have made things go even slower. So for example, if you marry a US citizen, it could take two or three years for you to get to the interview stage of the process. Of course, in employment based cases, the wait for certain nationals like Indian nationals and Chinese nationals has always been long. It will be interesting to see whether the pandemic actually impacts the number of people who want to immigrate to the US, which could have a positive effect on those numbers. But right now we're definitely seeing weights which have been historically getting longer with no real end in sight.
Certainly an increase in the employment based immigrant numbers would be welcome. There has been some talk and proposed legislation to eliminate the per country limits so that there's a limit of no one country can have more than 7% of the overall total, which means that Indians and Chinese often have a much longer weight. The legislation that would eliminate those per country limits means that maybe for several years, only Indians and Chinese people would be immigrating to the US because there are so many of them in the backlog. So I think that would have a perverse effect that many people don't realize.
I think eliminating the backlogs and moving the numbers along more quickly is a great idea, but I don't personally support that type of legislation that would just eliminate diversity in our immigrant pool for a few years. H-1Bs at least for the time being premium processing is still available. So regular processing of all types of non-immigrant visa cases, temporary worker visas, again, just like everything else is taking forever but there are certain case types that can be expedited with an expedite fee. That fee nearly doubled recently to $2,500 per case. So it is a pretty hefty fee but the good news is that at least for some non-immigrant visa types, you can pay a fee and get things done in a somewhat reasonable period of time.
Tony Lee:
So with the proposal to raise the employment based green cards to 175,000, I mean, is that going to come really much closer to meeting the needs of employers or is there still a long way to go?
Becki Young:
There's still a long way to go. I think every little bit would count but the backlog is so... I don't know the exact numbers but I don't think that's going to make a real serious impact, but it would surely help.
Tony Lee:
Yeah. And of course workplace immigration has been a very politically sensitive area past administration and to today, but for employers, isn't this really a bipartisan issue? I mean, are you seeing that employers are less concerned about the politics of immigration?
Becki Young:
I think most employers are not so concerned about the politics of immigration. Certainly employers that work in areas where there is a skills gap or where they can't find workers, it really does go across political lines. So I can't say that unanimously employers are in support of immigration but I think that it cuts across party lines, unlike some other issues.
Tony Lee:
So there's also some discussion about a wage based allocation system that prioritizes visas for higher wage workers. What are your thoughts on that?
Becki Young:
So that's a really interesting idea. The wage based allocation system was proposed for the H-1B category. And what happens in real life is that foreign workers come here to the US to study in universities. They get F-1 student visas. They're very often in STEM fields. And then after they graduate, they get either one year of optional practical training. Or if they're in a STEM field, they get three years of optional practical training, and then they can enter the US workforce and be sponsored for an H-1B visa. The H-1B is subject to an annual quota, and the chances are usually about one in three that in any given year you will be allocated in H-1B. I understand that this year the numbers were actually higher than ever. So the chances might even be slightly less than one in three, but let's say about one in three.
So if you come here, you're a STEM graduate from India. You get three years of OPT. You try every year to get into the lottery. Chances are in one of those three years, you'll get into the lottery. Then you get an H-1B. You can have the H-1B for up to six years and during that time, many people are sponsored for green cards. So that's a process that we see a lot as business immigration lawyers. And that's one way that this country is building its STEM workforce.
What a wage based allocation system would do is eliminate that flow of workers because those entry level workers are not going to be paid the highest wages. So if H-1B visas go only to the individuals with the highest wages, it's going to eliminate H-1B sponsorship for all entry level jobs. So that also eliminates this pipeline of workers who come to the US to have a family here, to stay, to continue working and contributing to the economy. So I think it could have real spillover effects.
So the Trump administration was in favor of this wage based allocation. The Biden administration has not expressed opposition to it. In fact, there was a policy statement put out before the election where they expressed support for it. I haven't really heard much about it recently. So it will be really interesting to see how that issue plays out.
Tony Lee:
Yeah. I mean, I imagine STEM employers like the idea, but graduate business schools probably dislike it greatly.
Becki Young:
I don't know that employers like the idea because again, they will not be able to hire entry level workers. So I think that the employers who like it are employers who, for example, in the financial services industry, we see a lot of employers who hire very experienced people who make a lot of money, who have very high salaries. So those individuals who are at advanced level in their career will be eligible if there is a wage based allocation system.
But I think that as a country, we should be encouraging younger workers to come here because they will be contributing to our economy throughout the entire course of their career. Whereas more experienced workers, we should also be encouraging them to come here, but they have a shorter window in which they can contribute to our economy.
Tony Lee:
Yeah. And I assume that if you're a foreign based student thinking of coming to the US to study, this would prompt you to think about going perhaps to another country instead of coming to the US?
Becki Young:
That is very true. Yeah. And that has happened a lot during the four years of the Trump administration. If you look at the statistics for foreign students coming to the US, it's pretty dismal. We encouraged by our policies, foreign students to go to other countries like Canada or Australia or the UK. So those students bring a lot of money to the United States. They bring a lot of knowledge and they bring a lot of cultural exchange and understanding. I mean, I really enjoyed meeting foreign students and interacting with foreign students when I was a student myself. I think we lose a lot culturally by not encouraging foreign students to come, but we also definitely lose a lot economically. And if you look at the statistics, it's very clear that the foreign student numbers have dropped precipitously.
Tony Lee:
Yeah. And let's shift just a little bit and talk about H-2B visas for more entry level labor type immigration. Where do you see that going?
Becki Young:
So I have to be honest, I don't know a lot about what the Biden administration has said about H-2Bs. I do know that they increased the allocation of H-2Bs. They're a mess, they have been for some time. It's a very, very cumbersome process. And there are H-2Bs which are for temporary workers, seasonal workers, workers who come to meet at one time or a peak load need. And then there are also H-2A visas which are for agricultural workers. And those types of individuals are definitely sorely needed in our economy. But the process, especially for the H-2B is so cumbersome and difficult and the chances of actually getting the workers that you need are not high. So I think that's an extremely frustrating process from players. That's actually why we don't do a lot of them in our practice. The results can often be very disappointing. And I would really, really like to see a better visa system for unskilled or low skilled workers.
Tony Lee:
We're about out of time, but I want to end on a more positive note if possible. So what do you think is happening next? I mean, we started this off by saying things are starting to look brighter. Where do you see us in another year or two?
Becki Young:
Personally, I feel very optimistic. I think the pandemic news has been improving in this country. I think the political news related to immigration has been improving in this country. The Biden administration has definitely expressed a willingness to work with employers and to try to address the labor shortages and the skills gap that exists. So I think a lot remains to be articulated, and there's still a lot of uncertainties but I definitely feel optimistic both about the state of the United States and the state of immigration.
Tony Lee:
Great. Well, that is going to do it for today's episode of All Things Work. A big thank you to Becki Young for joining me to discuss the current state of immigration. Before we get out of here, I want to encourage everyone to follow and subscribe to the All Things Work podcast, wherever you listen to your podcast. And while you're at it, please be sure to give us a five star rating and leave a review. Also, be sure to check out SHRM on Facebook, Twitter, and LinkedIn. And finally, you can find all of our episodes on our website at shrm.org/atwpodcast. Thanks for listening. And we'll catch you next time on All Things Work.
Speaker 1:
All Things Work is sponsored by UKG. Your business is important to you, and the best way to improve your business is to improve the lives of your people. UKG develops HR and workforce management solutions designed to take care of your employees because when they feel supported, connected, and appreciated your business will transform from a workplace into a work of art. UKG, our purpose is people.