The H-1B “Brain Drain”-- It’s NOT the Economy, Stupid

Invited Blog:
Bloggings On The H-1B Visa
by Anthony F. Siliato and Scott R. Malyk

Editor's note: Here are the latest entries from Anthony F. Siliato and Scott R. Malyk's blog.

September 25, 2009

Further to one of our more recent posts, it isn’t just the economy driving the “brain drain” associated with the ever-increasing numbers of talented workers opting to leave the U.S. Rather, the unrealistic immigrant visa quotas for employment-based green cards are also to blame as a formidable obstacle contributing to this recent trend.

The much-anticipated October visa bulletin issued by the Department of State did little to give new hope to the long line of skilled workers waiting for available immigrant visa numbers. Indeed, with quotas backlogged more than 7 years in the skilled worker category, countless thousands of talented H-1B workers are not only captive to their existing employers (with the hope that they will remain employed by their employer by the time they are permitted to file the final step of the green card process and achieve employment portability, if they wish), but are also constrained from seeking or accepting any significant promotions for fear of having to restart the green card process all over again.

A maximum of 140,000 green cards are issued to employment-based visa holders each year, and that quota is then divided into categories for classes of workers and set a percentage for each country. As such, because there are presently higher volumes of skilled workers from immigrating from India and China, those individuals are required to wait even longer than foreign nationals from other countries. This rigid system is not based on skill, merit or industry need, but simply because we have an antiquated, per country quota.

It should come as no surprise then that potential and existing U.S. H-1B workers are pursuing other options abroad—which not only avail such workers of more rapid career advancement, but an opportunity to obtain permanent residence in a far more efficient manner than the U.S. process currently offers. One need not look farther than just north of our border for an accelerated system of obtaining permanent residence for skilled workers. For example, the Province of Alberta Canada has a program which allows U.S. H-1B workers to gain permanent residency in Canada under a fast track (12 month) program. The program does NOT require the H-1B holder to have a job, employer or sponsor. The H-1B worker can apply independently. Alberta’s fast track program only requires that the applicant be working and have a minimum of one year of work experience in the United States pursuant to one of the temporary skilled worker visa categories (H-1B, H1-B1, H-1C, E-3) and that the applicant’s occupation be included in the “Regional Operations Under Pressure List” For Alberta.

So, while “It’s The Economy, Stupid” has been (and continues to be) a popular refrain since the Clinton administration, perhaps we need to ask why the United States continues to perpetuate a closed-minded, isolationist approach to immigration quotas that achieves nothing but drive out some of our hardest working, most talented foreign national workers – many of whom might otherwise help the U.S. return to a healthy and vibrant global economy.

Post Authored By: Anthony F. Siliato, Esq. and Scott R. Malyk, Esq. of Meyner and Landis LLP

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