For most individuals (approximately 75%) who obtain U.S. permanent residence through employment, the steps are:

Step 1 - Labor Certification Application: The employer must first file an application for an alien employment certification ("labor certification") with the U.S. Department of Labor (DOL) on behalf of the individual.

Step 2 - Immigrant Petition (I-140): Once the labor certification application is approved, the company files an immigrant petition with the U.S. Immigration and Naturalization Service (INS).

Step 3 - Adjustment of Status (I-485): Once the immigrant petition is approved, the employee can apply for adjustment of status to U.S. permanent resident (for him/herself and his/her spouse and/or children, if applicable).

Many potential immigrants who have filed adjustment of status applications to lawful permanent residence will experience even further delays because of Central Intelligence Agency (CIA) background checks. Take the example of John Smith, a U.S. citizen, who met and married Dina Polanski from Poland. After their marriage, John sponsored Dina by filing an application for adjustment of status with the INS New York District office (New York INS).

They got called for an interview 18 months after the filing of the application. Prior to the interview they hope that their case would get cleared and Dina would become a permanent resident. At the interview, the INS officer reviews the documentation and tells them that everything looks fine except for the CIA check, which may take an additional one-year. The officer does not issue the green card and tells them that the INS would contact them after a year.

CIA would have inspected the potential immigrant to be a terrorist or associated with a terrorist organization. The person being deported has no right to see the evidence because it is classified and secret.

According to New York INS, the CIA is backlogged by about one year, as a result of which 80% of its cases are being adjourned. The last information New York INS received from its headquarters was that it may adjudicate a case that was sent for a CIA check before September 1, 1998, and no response has been received.

Things would work much smoother if the INS sent the Form I-181 the moment it receives an application for adjustment of status. This is not generally the case. In most cases INS sends out Form I-181 when the file is pulled for an interview. Interviews in New York are generally scheduled after 18 months. Therefore, if Form I-181 is sent to the CIA at the time of the interview, it may still take another year or more for the CIA check to clear.

At present, there is no way for an applicant to follow up on the status of the CIA check. One cannot expedite CIA checks. New York INS has authorization from headquarters to post-audit cases involving a child who is "aging out" (about to turn 21) or an adjustment of status application filed under the diversity lottery

program and all visas have to be issued by September 30, 2000. Although this article refers to procedures at New York INS, others have been experiencing similar problems with CIA background checks at INS offices across the country

At one time or another, nearly everyone in the business world has heard or even used the adage, "They may have won the battle, but they lost the war!" The phrase is a reminder to approach issues broadly, without the myopia that

yields short term victories at the cost of long term losses. It is with this thought in mind that immigration advocates say the high tech industry's H-1B cap victory may be illusory, especially if we forget that there are not enough

Green Cards available for the H-1B workers who enter the U.S. every year. What this means is that even though the high tech industry did win a major battle when Congress increased the cap on H-1B visas from 65,000 to

115,000 annually for fiscal years 1999-2001, the war for greater access to talented foreign engineers and programmers has yet to be decided. Indeed, the larger issue is that although the American Competitiveness and Work

Force Improvement Act increased the availability of temporary H-1B visas, it did nothing about the longstanding per-country cap on permanent visas. The result is that U.S. based high tech firms are now simply training foreign professionals who, after six years on temporary visas, may be forced to leave their jobs and return to their home countries. As one firm's human resources director states, "It's going to be like a Twilight Zone version of the Brain Drain--U.S. firms train talented workers who then go back to India."

Of course, the obvious questions are "Why is this happening now?" and "Is Congress purposely discriminating against Indian programmers?" Well, first

off, the problem isn't new, and while it's unlikely that any sort of Congressional conspiracy is at play, one does have to wonder why the law doesn't provide more Green Cards for much needed professional workers. The short answer is that the problem lies in Congress' inability to keep pace with our changing world. That is, since 1990 - the same year that Congress imposed the original 65,000-person cap on H-1B visas, it has done nothing to change the annual cap on employment-based green cards. This cap, called the EB Cap ("employment-based"), has been stuck at 140,000 since 1990.

So now, the next obvious question becomes, "Do these immigration guys not

know how to count or what?" Well, we do know how to count, it's just that the numbers can be a bit misleading. You see, even though the EB Cap of 140,000 Green Cards per year does, on its face, seem to accommodate the 115,000 H-1B workers who can come to the U.S. annually, the fact is that Congress counts these two types of visas differently. More specifically, spouses and children are not counted in the H-1B cap, but they are counted in the EB cap. This means that 115,000 H-1B workers and their families can enter the U.S. every year, but only a total of 140,000 people are eligible for a Green Card annually.

To make matters worse, while H-1B visas can be issued to foreign workers exclusive of their nationality, Green Card applicants are subject to a "per country" annual employment-based cap of just a few thousand green cards

each. The purpose of this rule is to treat nationals of all countries fairly, so as to avoid "national origin quotas" that were prevalent in our immigration laws until the 1950's. At that time, there was a general perception that certain

countries were being provided fewer visas than others, and that racial and ethnic biases influenced the number of visas available to a given country's citizens. To address this inequity, in 1952 Congress decided that all countries

would be given identical quotas--thus eliminating any claims of biased treatment. Of course, the answer begot another question: "Is it really fair to provide smaller countries, such as Iceland, Jamaica, and Luxembourg, the same number of visas as India, China, and Russia?"

The question is a fair one, and it's relevant because of changing immigration trends, changes in our global economy, and changes in U.S. employers' need

for highly skilled workers. Up until the early 1990s, Congress' plan from 1952 was working fine, with few glitches. In fact, just about every country was utilizing less than its allotted share of visas.

Since then, however, the world has changed. We no longer operate in a closed environment. We live in a global village where national economies can be greatly affected by international policies and events. Indeed, with new

technologies such as the Internet and the ubiquitous desktop PC, our world experienced dramatic changes. In the context of immigration, U.S. companies began needing increased manpower to deal with surging economic growth in

the U.S., as well as the opening of several foreign economies that had been closed to American companies for decades. All of a sudden, U.S. businesses needed lots of well educated, English speaking computer programmers and

engineers-many of whom were available in India. By hiring these foreign born programmers and engineers, the result was that

by 1996, the availability of employment-based visas categories for Indian born professionals started to develop backlogs. Just a year later, significant backlogs in getting employment-based green cards became an issue for high-tech workers born in China. Since then, the backlogs have gotten even worse for nationals of both countries as U.S. employers' need to hire as many foreign high-tech workers as possible has resulted in backlogs of two to five years in some employment based immigration categories.

So now, we're witnessing the beginning of that Twilight Zone version of the Brain Drain, where some H-1B workers from backlogged countries, like India and China, are going home, unable to complete Green Card processing before their H-1B status expires. What makes this situation even more Twilight Zone-like is that the U.S. need for these experienced, highly trained experts still remains. In fact, these specialists are being sent home precisely when they're needed most.

What makes this scenario even more mind-blowing is that the original Senate bill to raise the H-1B cap, introduced last year by Senator Spencer Abraham (R-MI), would have eliminated the per country quotas for employment-based

immigrants. Indeed, the Abraham bill would have done this by allowing a shift of unused green cards from certain countries to high-demand nations. Under the Abraham plan, this could even be achieved without actually raising the EB

Cap from its current level of 140,000, as most countries do not even come close to utilizing all of the visas that the 1952 equality measures put in place. Unfortunately, the anti-immigration lobby and those they support in Congress

managed to have this measure deleted from the final bill by holding the H-1B increase hostage until the IT industry was forced to give in to a lopsided compromise. This year, the anti-immigration zealots are at it again, having

gotten Congressman Bob Stump (R-AZ) to introduce a ridiculous bill that actually makes things worse, by dramatically reducing Green Card availability to less than one-third of the current level!

So now, things are looking somewhat grim, but have we lost the war? Absolutely not! Now is the time for H-1B workers and IT employers to get smart and begin considering alternative strategies for addressing or even

circumventing the ever-increasing Green Card backlogs. For the short term, it makes sense to try circumvention first. Every employer with H-1B workers should consult their immigration attorney to consider whether they are doing

everything they can to reduce the Green Card processing times that the firm's employees face. Processes such as "Reduction in Recruitment" are considered state-of-the-art immigration approaches that can save time and money. At the same time, employers and workers should examine each case to see if the employee could qualify as an "Extraordinary Ability Alien," "Outstanding Researcher or Professor," or "national interest" candidate.

Of course, short term solutions are only a temporary answer, and some of these approaches will only work in a limited number of cases. Then, what can be done for the long term? Well, the only sensible answer is to make use of

the democratic process. High-tech industry workers and leaders need to convince Congress to take IT issues seriously, and Congress needs to know that either of two changes need to be made so as to address this critical

situation:

The important thing to remember is that changes of this sort require a ground swell of interest and support--especially from those who are most affected by the per country laws. Workers in the IT field should let their employers know

that these issues are of importance to them, and they should let Congress know that changes must be made. At the same time, IT companies should take an active interest in these issues, and should consider joining industry

groups, such as the Information Technology Association of America (ITAA), American Business for Legal Immigration (ABLI), the National Association of Manufacturers (NAM), and the U.S. Chamber of Commerce. With strong

unified support aimed at addressing counterproductive laws, Congressional leaders will have to conclude that the time for change has come.

Most individuals desirous of settling in the United States view the green card, and later citizenship, as their ultimate goal. However attractive a green card might be, it may not always be advantageous, especially when you are in love. If you are a green card holder and wish to sponsor your newly wedded spouse, it could take up to three or more years before he or she can also get the green card. Three years is inordinately longer for newly married couples. It can cause all kinds of anxieties, details of which we will not discuss here.

On the other hand, if you are in a valid nonimmigrant visa status such as an H-1, L-1, or F-1 visa, your spouse can quickly obtain the dependant version of this visa. So those of you who are on the verge of marriage and in nonimmigrant status, delay your green card for just a little long until your spouse can join you. When you get the green card, your spouse can get it along with you.

Not many people realize that an H-1 or L-1 visa holder can possess what is known as a "dual intent". To put it simply one can harbor both a permanent and temporary intent to reside in the U.S. at the same time. So just because your employer has initiated the green card process while on an H-1, it should not preclude your spouse from entering the United States on an H-4 visa.

Of course, some of you may be on the verge of a green card, but not on the verge of marriage. Then go ahead with your green card but if you later find the love of your life, bear in mind that the wait will be three long years. But suppose you have already spent five years on the green card in the U.S., then you should rush to file an application for citizenship. It is much quicker to bring in your spouse as a citizen than as a green card holder. Because it is election time, the INS is issuing citizenship within three months of filing the application.

Now this leaves us with those individuals who have recently obtained their green cards and got married, but have years to go before they become eligible for citizenship.

1. Allow extension of H1-B visa beyond six years for professionals who either (a) have filed, or have received approval for, their immigrant visa petitions (I-140) in EB-1 or National Interest Waiver category, or (b) have filed, or have received approval for, a Labor Certificate application.

Most of the H1-B employees who come to the US are found valuable enough by their employers to sponsor them for permanent resident status. Application for Labor Certification is a first step taken by most of these employees towards the employment-based immigration. In most cases, employers sponsor this process only after realizing the value of the employee and lack of native talent to fill the job, so it is not surprising that almost all employees who file for Labor Certification end up getting an approval from the Department of Labor, making them eligible to become permanent residents. However, what used to be a total of 3-year period to complete this entire process has become a six to eight-year ordeal today.

Unfortunately, the H1-B visa has a maximum of 6-year limit, which forces individuals to leave the country at the end of that period, without taking into consideration their eligibility for the Green Card.

While there are many factors why an H1-B employee fails to become a permanent resident within the 6-year limit of his H1-B visa today, lack of movement in the Priority Date in certain employment-based immigration categories such as India-EB3 and China-EB3 is the most important

one to note. This unavailability of immigrant quota numbers is forcing individuals to wait for years before becoming eligible to apply for the adjustment of status. The current law ignores delays caused by the procedural bottleneck and still imposes the 6-year limit on their H1-B visas, forcing the professionals to leave their jobs as well as the country, and effectively nullifies all the efforts made by the individuals and their employers. We are already hearing from several people who are facing this situation in 1999 due to this problem, and such a mass departure of technical talent will definitely have an adverse impact on the growth of the hi-tech industry, which is right now in need of such talent more than any other time in its history.

US government should realize that this problem will not only adversely affect these eligible immigrants, but will also hurt the hi-tech industry in a severe manner in the coming months. One simple solution to this problem would be to waive the 6-year limit on H1-B visa for those individuals whose employers have shown enough confidence in them by sponsoring them for their Labor

Certification. This should apply to all individuals who have either applied for, or have already received, a Labor Certificate from the Department of Labor. This will ensure a fair treatment to the individuals as well as the employers who have shown intent to serve each other's needs on a long-term basis. Individuals past their 6-year H1-B limit could then be forced to leave the country only if the Department of Labor rejects their Labor Certification application.

professionals who have applied, or have received the approvals, for their I-140 petitions should not be forced to leave the country at the end of six-year period of their H1-B visas.

Each year, over 160,000 citizens of the United States marry foreign-born persons and petition for them to obtain permanent residence in the U.S. Spouses of U.S. citizens are considered "immediate relatives" under the immigration laws, and are exempt from all numerical quota limitations. In other

words, marriage to a U.S. citizen is the fast lane to a green card.

Marriage to a permanent resident is very problematical and often results in the recently- married spouses living apart for many years. A legislative solution to this problem is required.

It is also possible for a U.S. citizen to obtain a temporary visa for a fiancée and get married once he or she arrives in the U.S.

Procedurally, the process works like this. The U.S. citizen must submit a visa petition (form I-130) to appropriate INS Service Center to prove that the marriage is bona fide, that is, entered into for love rather than simply for the foreign-born spouse to obtain a green card. Attached to the visa petition are the following items: (1) Biographical forms (forms G-325A) for both the husband and the wife with photos attached; (2) Proof of the citizenship status of the petitioner. This can take the form of a U.S. Passport, a Certificate of Naturalization or Citizenship or a certified copy of the citizen's birth certificate; (3) A certified copy of the marriage certificate; (4) Certified copies of the documents that terminated any previous marriages of the husband or wife, including final divorce

decrees, and certificates of annulment or death.

Simultaneously, the foreign-born spouse should submit an application for adjustment of status (form I-485) which is an application for a green card. Items which may accompany the green card application include green card photographs, an application for employment authorization, an application for a travel permit (known in INS jargon as "advanced parole") and numerous other

And don't forget the INS filing fees. Include a single check which includes the filing fee for the visa petition ($110), the application for adjustment of status ($220), the application for work authorization ($100), the application for a travel permit ($95) and for fingerprints ($25).

The INS will accept the applications, cash your check, and schedule an interview somewhere between a few months (if you live in Cleveland) and 19 months (if you live in Los Angeles). If the wait for the interview exceeds 90 days, chances are that the work card and the travel permit will be issued in a matter of weeks or months.

The process is roughly the same except that the foreign-born spouse usually must remain in his or her country until he or she obtains a green card. The U.S. State Department offers advice on its web page to citizens who marry foreign-born persons abroad.

The process begins when the citizen spouse submits a visa petition to either the INS office which has jurisdiction over his residence or directly to the U.S. Embassy or Consulate in the country where the foreign-born spouse resides. The citizen spouse must attach the same items with the visa petition which are listed above including the $110 filing fee.

Once the visa petition is approved, the foreign-born spouse will receive a packet from the National Visa Center (NVC) located in Portsmouth, New Hampshire. The packet informs the foreign-born spouse of the various documents which must be presented at the immigrant visa interview abroad (e.g., passport, police clearances, results of medical examinations, etc.). The packet includes certain

documents requesting biographic data which must be completed, signed and forwarded to the U.S. Embassy or Consulate abroad.

Usually, the foreign-born spouse is interviewed and granted an immigrant visa within three to six months. The State Department charges a fee of $325 for an immigrant visa.

Sometimes, in order to avoid a lengthy separation, the spouses return to the U.S. after the marriage and proceed to file the necessary applications once they are both in the U.S. Usually, INS takes a dim view of this practice. It is not uncommon for the INS to stop the foreign-born spouse at the border and exclude him or her from the U.S. as an intending immigrant. However, if the

foreign-born spouse is able to enter the U.S., INS will not deny his or her application for a green card simply because he or she entered the U.S. on a temporary visa when their real intent was to remain permanently in the U.S.

If the marriage is less than two years old when the foreign-born spouse becomes a permanent resident, the green card will expire after a two-year period. Both spouses must submit a joint petition (form I-751) to remove the two-year condition within the 90-day period immediately preceding the end of the two year period.

If the marriage has terminated by reason of divorce, death of the citizen spouse or spousal abuse, the foreign-born spouse may apply for a waiver of the joint petition requirement.

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