United States: Immigration Laws Stifle US Business

US immigration laws have not been created with the growing global economy's need for foreign talent in mind, and should be reformed to promote hiring the best minds for the US economy. With globalization of the modern economy, US companies have an increasing need to hire foreign labor with unique skills and specialized knowledge. These business needs are frequently challenged by restrictive immigration laws and policies – hiring even the brightest scientists, engineers or executives from other countries has become more frustrating in recent years. An immigration reform bill has been in the works for quite some time now. Two years ago, the Obama Administration presented a proposal to streamline business immigration. The proposal suggested creating a "startup" visa for entrepreneurs, expanding opportunities for investor visas, creating a new visa category for employees of national security science and technology laboratories, and cutting red tape for employers. To date, however, no significant substantive changes have been implemented in this regard. These and many other business immigration issues have remained untouched during the Congressional gridlock. Now with the refugee crisis at the center of the immigration debate, and the Presidential election commanding center stage, business immigration reform will likely be postponed for even longer.

In order to fully appreciate what needs to be fixed in the US immigration system, it is helpful to understand how the current immigration system actually works. Immigration status in the US can be divided into three separate categories: 1) Nonimmigrants - those holding temporary US visas; 2) Immigrants – "green card" holders or permanent resident aliens; and 3) Naturalized US citizens – those who were approved for US citizenship after application and government review, and who hold almost all of the same rights as US born citizens, including voting in the federal elections. This article will address some of the hotly debated business immigration issues related to the most commonly issued nonimmigrant visas, and the impact of visa backlogs for immigrant visas.

Immigration law has distinguished between immigrants and nonimmigrants since 1819. US law permits nonimmigrant visitors to stay in the US for a temporary period of time, and presumes that they are leaving at the end of their authorized stay. It is important to understand the distinction between a visa and a nonimmigrant status in the US.  A visa is a passport stamp issued by the Department of State's US embassies and consular posts abroad, which permits a request at the border for admission to the US as a nonimmigrant. Visa issuance does not guarantee entry to the US. The US Customs and Border Protection ("CBP") determines whether to admit a visa holder at the border and for how long – this dictates nonimmigrant status. CBP might admit one applicant as a visitor for a full six months, and another as a visitor for just two weeks. Someone else might be denied entry, even if they hold a ten year visitor visa issued by a US Embassy. The CBP's determination on admission depends on the visa category, the purpose of the visit, previous issues on entry, and other general concerns.  Once admitted, nonimmigrant status can be changed or extended by US Citizenship and Immigration Services ("USCIS"), a branch of the US Department of Homeland Security. The US Department of State, US Department of Homeland Security, and Customs and Border Protection are three separate US government agencies, and their decision-making is not always consistent. 

The Limits of Temporary Work Visas

The US immigration system includes a "visa alphabet soup"– a wide range of non-immigrant visa categories that are issued for various temporary purposes. The H-1B visa is the most common visa category used by US companies to hire highly skilled professionals in specialty occupations - computer specialists, engineers, scientists, and other occupations requiring Bachelor's level degrees or the equivalent based on experience. The current number of H-1B visas is capped at 65,000 per fiscal year, with an additional 20,000 visas allocated to graduates from US universities with Master's degrees and higher. This cap is so low that it has been exhausted on the first day of filing in the past few years, and clearly does not reflect modern business reality. In response, USCIS instituted a computer generated random lottery of all petitions received the first week. This random lottery gives an advantage to large technology companies over small and medium sized companies that do not have the resources to file for multiple professionals, and does not come close to satisfying the needs of US businesses willing to pay prevailing wage for highly qualified professionals. The chances of being selected in the H-1B lottery are getting much lower every year, and the very fact that our government hosts a lottery for highly educated professionals is questionable.

As with the H-1B visa cap, companies seeking to employ less skilled workers also face cap issues under the H-2B temporary nonagricultural worker program. The H-2B visa is a category used to employ workers for seasonal or short-term positions in construction, landscaping, hospitality, or other similar businesses. The current H-2B quota does not satisfy business demand for essential staff positions, and leaves companies in need of these workers without an alternative.  In addition, this category requires a burdensome application process, which includes a temporary labor certification filing with the Department of Labor ("DOL") certifying the wage and non-availability of US workers prior to filing a petition with USCIS.

Another visa classification in need of revision is the L-1 visa, which was created by Congress in 1970, based on the conclusion that immigration laws at the time unduly restricted the transfer of foreign personnel. This category permits multinational companies to transfer employees from their foreign operations to the US. Employees with "specialized knowledge" can qualify for L-1B status, and those with executive or supervisory positions can qualify for L-1A status. The US petitioning company must share a qualifying legal relationship with the foreign company, such as parent/subsidiary, affiliate, or branch office, and the employee must have worked on a full time basis for the foreign entity for at least one year prior to the transfer to the US. While this visa has no numerical limitation, only a limited number of companies can qualify, and in practice, the government has been requiring a much higher standard than the regulations specify. In 2014, the L-1B denial rate reached an all-time high of 35%, compared to 2006, when the denial rate for L-1B petitions was only 6%.  Such a drastic increase of L-1B denials is especially disconcerting because the regulations governing L-1B adjudication have not changed. This burdensome and overly restrictive interpretation of the regulations defies the purpose of the L visa creation, and needs to be modified.

Employment Based Immigrant Visa Backlogs

Permanent residency ("green card") employment quotas are equally out of touch with today's business reality and modern economic changes. Immigrant admissions have been numerically limited since 1924. Citizens of all countries are treated equally – with a small caveat that no nationality can use more than 7% of all the green cards issued per year.  When more people than the allotted per country quota apply for permanent residency, they are placed on a waiting list, which can be very lengthy. For example, as of January 2016, the waiting list for Indian nationals with an approved immigrant visa petition under the employment based Third Preference category goes back to July 2005. This means that in January 2016, the government just began processing immigrant visas for beneficiaries of employment based filings initiated by employers in July 2005.

Here is a simplified overview of a typical process to permanently hire a professional employee under the commonly used employment based Second and Third Preference categories. Before filing a permanent visa petition, the employer is required to conduct an extensive and costly recruitment campaign to prove that no minimally qualified US workers are available and interested in the position offered, and that the salary offered meets the wage requirements offered to other US workers in similar positions. If no minimally qualified applicants are located in the recruitment campaign, the employer files an application for alien labor certification with the DOL.  Government processing of this application can take from one to two years, which calls into serious question whether the recruitment campaign and prevailing wage determination have any validity or purpose. And just because the DOL certifies the application does not mean that an employee gets the green card right away. Instead, the employer then moves on to the next step, filing an employment based immigrant visa petition with USCIS, which can take another two weeks to approximately six months for processing. Following the approval of an immigrant visa petition, some beneficiaries are placed on a long waiting list until a visa number becomes available. This can take years in some cases due to the permanent visa number backlog, which depends on the beneficiary's country of birth, degree and experience required. Finally, if an employee is fortunate enough to still have the job offer after the visa number becomes available, the final step in the green card process, an application for adjustment of status to permanent residency is filed. This can hardly be called an efficient system. 

Overhaul of the employment based immigrant visa admission numbers has been the subject of multiple reform proposals – everything from issuing unrestricted employment authorization following approved visa petitions to stapling green cards to graduates with STEM (Science, Technology, Engineering and Math) degrees from US universities, but nothing has changed at all. The cumbersome employer recruitment campaigns and the process for moving qualified long term employees into permanent status are in need of serious revision to meet the modern needs of our economy.

There are many concerns with the current US immigration system – refugees, unauthorized employment, social costs, fraud, children brought to the US without authorization, and of course, the very real threat of terrorism. For the past few years, there has been an ongoing debate regarding "comprehensive" vs. "incremental" approaches to immigration reform. Many have weighed in with solutions for these immigration problems, and much has been covered by the press. But what has been lost in the process, particularly overwhelmed by the sound bytes of an election year, is the clear fact that the US business immigration policy desperately needs reform.  Ideally, a solution that includes all components of the immigration equation is required – a means to deal with unauthorized immigrants and border protection, promotion of family unity, as well as an efficient and real world approach to permit regulated business immigration. 

If you have any business immigration related questions, please contact immigration attorney Natalia Gove at Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.