Delays in the Green Card Process, and How an Attorney Can Help

Employers and foreign workers feel the squeeze on H-1Bs

Starting in January 2017, immigration policy went through a series of changes that made its way into the lives of many people working in the U.S—particularly the skilled foreign residents working under H-1B visas.

H-1B workers are typically highly trained, and fill a niche that an employer can’t easily find in the U.S. Often, they’re recruited in specialized tech fields; in fact, an inordinate number of H-1B visas are awarded to just a few Fortune 500 companies, including Google and Microsoft. Once granted an H-1B, a worker can be sponsored by his or her employer to obtain a green card and begin the process of becoming a U.S. citizen.

This is where immigration lawyers are seeing some stark changes. Elizabeth Garvish, who practices immigration law in Atlanta, has observed an increased scrutiny for H-1B green card applicants. “They’ve implemented a new mandatory interview requirement for all employment-based green card applications and their family members,” she explains. “In the past, you would have to go for an interview for a marriage-based case, certain family members, asylum. An employment case might get an interview if there was a criminal issue, but it was very uncommon. I would tell my clients, ‘You will never get interviewed, you’ll go straight through the green card process.’ But not anymore.”

Garvish adds that, before, the entire green card process could take eight months to a year. “Now, with this mandatory interview requirement, the delays are going to be horrendous,” she says. “The majority of the adjudicators at the local offices have never seen an employment-based case. We have the same number of officers, but we’re going to have this influx of all these additional interviews. I have no idea what to tell my clients about how long this is going to take.”

There has also been a dramatic increase in challenges to H-1B visa petitions. U.S. Citizenship and Immigration Services Requests for Evidences rose by 45 percent in 2017 compared to 2016. This impact was especially harsh for H-1B workers from China and India, where the wait to be approved for a green card can take 10 to 15 years.

In previous years, it wasn’t uncommon for repeated extensions to H-1B visas while green card applications were pending. That is no longer the case. “A [USCIS] memorandum came out saying they will no longer give deference to previously approved applications,” says Garvish. “Now, someone may have had an H-1B for this long period of time, but they have to readjudicate it, de novo, every two years when they ask for an extension. We’ve already provided all the documentation, there’s nothing new, and it’s not their fault it’s taking so long. It’s just an unnecessary hurdle.”

Overall, these additional administrative barriers to allowing skilled foreign workers to stay in the country add significant complication to the immigration process. Now, more than ever, it’s important to have experienced immigration counsel assist you with your H-1B visa, whether as an employer or foreign worker. 

For more information on this area of law, see our immigration overview.

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