The problem with your statement is that the people being discussed here are ones who have applied for a green card, and already been approved. Their application has been vetted, they've proven that they serve a need in the economy, and background checks have been completed. However, the number of annual green cards have been capped, so even though it's approved, it cannot be given to them yet.
The fact that they are working on an H-1B visa is an embarrassing hack to make up for the fact that the US has made a promise to these families that they haven't been able to keep for decades.
Actually, the "background check shows they are not a terrorist" is the step that hasn't been done yet. That happens during the final step prior to receiving the green card.
If that was the intent of the law then why does the law allow people past the 6 year cap to keep renewing H1B forever if they're waiting for a green card?
Aside from some unusual visa rules, the only permanent immigration route Congress has created is family reunification. Congress has never created a skilled worker system for people intended to immigrate permanently. H1B is a temporary worker visa that has been abused to serve that role, but that wasn’t the intent: https://www.salisbury.edu/administration/academic-affairs/fa...
> The H1B is a temporary visa. The alien must be coming to temporarily fill a position that may, or may not in itself be temporary. The employer must attest that the alien's services are needed temporarily. The letter of appointment and other documents must stipulate the temporary nature of the appointment.
There are EB green cards, created by Congress, and intended for skilled workers to immigrate.[1]
Yes, you can apply (or be sponsored for ones that require a sponsor) for one without having an H1B or even being in the country. These are completely orthogonal to non-immigrant visas.
Yes, but the problem is that not the EBGC per se but the fact that many companies do not sponsor them for foreign workers but only for the workers who are already in the country and on a nonimmigrant work visa.
EBGC, not H1B is a pathway for immigration for a skilled worker yet, because of the unethical practice of many tech companies, many people even on HN honestly believe that one cannot possibly get an EBGC without working some period of time on H1B by law.
> many companies do not sponsor them for foreign workers but only for the workers who are already in the country and on a nonimmigrant work visa
Yeah, because the immigrant visas take time - at least a year if you aren't Indian or Chinese, far longer if you are. What's a company to do with that employee in the meanwhile? What if the company doesn't have offices and/or isn't set up to hire in that employee's home country? What if the employee's team is all US-based and they don't want to deal with the timezone differences? And if you're suggesting "sponsor, get the green card, then hire" why would a company spend all that time and money for someone who doesn't even currently work for them? What's the benefit?
Pre-Covid, most companies simply didn't do remote work on any meaningful scale. And some jobs, even highly paid ones, can't be done remote - doctors or surgeons, for instance. Of course companies were going to want that employee working at their US office until their permanent residence was approved. And if not a work visa, how else was that going to happen?
Companies have no problem hiring people with degrees even though getting a degree takes more time than an immigrant visa so I don't buy the time explanation. Some companies don't even have a problem with sponsoring an H1B visa for foreigners, which takes time too.
As to your question about benefit: for every I140 petition the company claims that the immigrant worker is the only one available, there are no Americans that can possibly do this job so, if they are not lying, it's the obvious benefit as they get someone to do the job nobody else can.
> Companies have no problem hiring people with degrees even though getting a degree takes more time than an immigrant visa so I don't buy the time explanation
Unless you're suggesting that companies give offer letters to freshmen and then hire them upon graduation 4 years later (which I don't think is very common) this bears no comparison to what we're discussing. Next you'll be telling me companies are happy to wait for employees to be conceived, born, and go through primary and secondary school too, so why can't they wait for an EB green card?
> which takes time too
But far less time - O(months) rather than O(years). If the worker is already in the country working on another visa, then it's even less time. And there are no per-country caps to throw a wrench in the works.
> it's the obvious benefit as they get someone to do the job nobody else can.
That's useless if it'll take 1-20 years (depending on the country of birth of the employee) for them to actually be able to work for you. If they relied solely on the EB system they would have 1) no American to do the work and 2) the person they found not allowed to do the work in a reasonable amount of time (and no, 1+ year is not reasonable for a new hire to start).
Well, you did not explain how the time to obtain visa matters so I don't know what to say. Companies do give offers to interns to return in a year or two routinely, the very same companies engage in the H1B. You can get a GC in a year easily, how is this different?
>But far less time - O(months) rather than O(years).
Did you mean it takes years to get a green card and months to get an H1B? (your O notation makes no sense, O(x) means that lim O(x)/x -> const when x->inf). Say you want to hire an H1B from abroad right now. In the best case he or she can start on October 1st 2022, a year from now. Or lose the 2022 lottery and then the next date is October 1st 2023, two years, and the 2023 lottery is not guaranteed too so it can take multiple years. On opposite with the green card you have fixed timeframes, it takes about a year to get a EBGC even through AOS, it's faster through CP as a foreigner would go and it used to be even faster before the whole covid disfunction.
>That's useless if it'll take 1-20 years (depending on the country of birth of the employee) for them to actually be able to work for you.
Then they should not lie on their application, because they literally affirm that it's immensely useful for them to get an immigration visa for the foreign worker they petitioned for. I think the DOJ is actually investigating FB right now for exactly this.
> you did not explain how the time to obtain visa matters so I don't know what to say
If I hire someone I'd like them to start working sooner rather than later. I don't understand why that needs to be explained.
> it takes about a year to get a EBGC even through AOS,
If you aren't born in India or China. That rules out a good 1/3rd of the world's population. And even a year is a really long time to wait for a new hire to start.
Fair point about the H-1B lottery. A smart company would do both simultaneously for a non-India/China born employee - EB GC and H-1B (in case the GC is delayed for some reason) - they're hiring from abroad.
> Then they should not lie on their application, because they literally affirm that it's immensely useful for them to get an immigration visa for the foreign worker they petitioned for.
Where's the lie? An Indian or Chinese-born worker sponsored for an EB green card today isn't going to get it for years. If they don't have a GC or work visa, they can't work for you.
>If I hire someone I'd like them to start working sooner rather than later. I don't understand why that needs to be explained.
Everyone would sure love to have immediately available workforce but I don't see how it's an insurmountable obstacle. Apart from the intern return offer, it's pretty common in some industries to have non-competes and many businesses wait for a year for almost every employer they hire to be able to start working. You just need to organize your business for the labor market realities and not your wants. Skilled labor market is rarely so liquid as to get workers without significant waits. In every firm where I worked there had been vacancies opened for years. Look at any FAANG, they have hundreds and thousands vacancies open permanently.
>If you aren't born in India or China. That rules out a good 1/3rd of the world's population. And even a year is a really long time to wait for a new hire to start.
Yes, it's because there are many people from China and India going through the F1->OPT->H1->GC pipeline. Nobody forces you to hire from China and India, plenty of people in Europe and the rest of Asia would love to move to America for work, experienced people too, not fresh grads.
>Where's the lie?
You said it's useless if the GC takes "1-20" years, most GCs take at least 1 year so they are lying when they say it's useful. Alternatively, your assertion of usefulness might not be realistic.
Yes, I was referring to that as “unusual.” But the EB green card is a good template for what a skilled worker immigration pathway would look like if we had one.
"Non-immigrant visa" means "getting this visa doesn't make you an immigrant". Which is true for the B2 (it makes you a tourist) and the H-1B (it makes you a temporary worker).
It shouldn't be confused with "intent". If you show intent to immigrate when applying for a B2, you can be denied. That's not the case for an H-1B.
I don’t read it as realistic. H1B is clearly spelled out in the law books as a “temporary worker visa,” but people have treated it as a path to permanent residency. What was offered on paper was an inch, and the expectations were built into a mile. (And to be fair, that is the fault of everyone involved, from the government to employers, but also immigrants who didn’t read the fine print.)
“Dual intent” is a legal fiction that was created to allow people apply for green cards while still pretending they have the non-immigrant intent required for the H1B visa. Dual intent allows the H1B visa to be used as a first step to permanent immigration in practice, but it’s still a “no guarantees” temporary worker visa according to the letter of the law. Congress never actually created a true permanent immigration visa for skilled workers.
