Giving H4 visa holders work permits would solve a lot of problems, says immigration attorney.
By Deepak Chitnis
WASHINGTON, DC: Sheela Murthy, a Harvard Law School grad, founded her law firm 19 years ago. Today, the Murthy Law Firm, with more than 100 employees and $10 million in annual revenue, is one of the most influential immigration law firms in the United States. The firm was among the first to harness the power of the internet by launching a website, Murthy.com, in the first year of its existence itself. Today, the site is reportedly the most popular legal website in the world.
In an exclusive interview, Murthy speaks about the Gang of Eight bill, H-1B visas, employment for spouses of H-1B holders, among other issues.
The immigration bill seems to have run into a road block in the House, but if the Senate version is implemented, and becomes law, what should companies who rely on workers on visas, like H-1B and L-1 be most wary of?
It is extremely challenging for consulting companies and other employers that rely exclusively and heavily on H-1B or L-1 workers, with the new way the bill has been passed in the U.S. Senate. Employers will have to be extremely strategic and creative on how they are able to use the system. For example, an employer would probably need to file for permanent residency, or Green Card, to make an employee into an intending immigrant, so that they are not counted as an H-1B or L-1 worker for H-1B skilled worker and H-1B skilled worker-dependent employers. Those are exceptions, and a good lawyer, a good law firm can work with you and strategize with you, as employers to try to minimize the negative impact and fallout from this legislation.
The current system has some safeguards in place to ensure American workers are given priority for jobs that go to H-1B workers, like placing an advertisement in newspapers and placing a notice in office. How will the law change if the Gang of Eight bill is adopted?
Well, [if] the Senate bill actually becomes the final law—which again we have serious reservations because in the House of Representatives, they have already said they are not going to accept the Senate version of it, but in case it does end up passing—the issue is going to be how can an H-1B or L-1 worker prove by showing greater value in many levels than, say a U.S. worker. The biggest problem here is that we don’t have enough supply in the United States today for technology workers, hi-tech information technology workers. The demand is huge, the supply is very limited and so by putting roadblocks on employers, who have risen to the demand, the natural economic flow of demand of supply and demand, and they are finding roadblocks where they are required to advertise for U.S workers. From the U.S. Department of Labor point of view, it makes perfect sense. It makes sense for the U.S government to want U.S. employers to advertise for U.S. workers. From a practical point of view, there just aren’t enough technology workers in America today to fulfill the demand that exists, the burgeoning and exploding demand we have for high-skilled technology workers. So just because we say we need to have U.S. workers do it, yes, everybody believes that, nobody, no employer in their right mind would take the trouble of hiring H-1 or L-1 workers, paying legal fees, going through hoops, jumping through it, if they were available. The federal government relies on it; major companies in the country rely on it. There is a huge shortage and a vacuum of hi-tech workers in the country. The reason H-1s have expanded so much is because there has been a shortage of skilled workers to be able to meet the insatiable demand that exists in our country today, as the leader of global technology.
Critics of the Gang of Eight bill that passed the Senate say it is discriminatory to companies who rely overwhelmingly on H-1B and L-1 visas. What is your take on it?
On the one hand it does appear to be discriminatory, and it is if you look at it with that lens. But I always say, every dark cloud always has a silver lining, and so, in this bill, there are ways that you can get out of being considered an H-1B dependent employer. There are creative ways in which you can turn it around to keep the employee with you for a longer time by filing the Green Card for that person. For example, the bill allows you to file [for] a Green Card as an employer either through the perm methodology—the old-fashioned perm through the Department of Labor or through a points-based system, similar to what we have in Canada. If the employer is pro-active and aggressive and files the case, for the employee through the perm system, it will unite the employer with the employee for a longer time. It will protect both parties. And it will make it a better relationship in the long run. There is a feeling that, if there is unemployment in America, why do we have foreign workers coming in? But I think the reality that a lot of people are not noticing is the fact that we have a huge demand for these services and the supply is not sufficient. And even though we made science, technology, engineering and math, the STEM fields, so attractive, I think, it’s going to take the next generation, it may be another 5, 10, 15, 20 years before we’ve completely caught up with the supply meeting the demand that exists in this country.
The plight of spouses on H-4 visas is deplorable. Even if the immigration reform bill doesn’t come through, should the U.S. government change their protectionist attitude and give EAD (employment authorization document) cards to them, like they do for spouses of L-1 visa holders?
I think it will be fantastic, if the federal government—the USCIS, the Department of Homeland Security, the Congress—would do something to help spouses of H-1B workers, the H-4s, to obtain EAD cards similar to what the spouses of L-1s get it on the L-2, the EAD card. It would take care of a lot of the problems. It would take care of the H-1B quota being limited because, even if an employer wants to file an H-1B for an H-4 candidate, the quota is probably used up—the cap has been met for the year. I think it would solve a lot of the problems. I know there is some pushback, but USCIS and the Department of Homeland Security, through regulations, were able to issue the L-2 EADs for spouses. Maybe if the administration and the Department of Homeland Security could actually do it more through regulations, without going through Congress, that would be wonderful. I think it would be a win-win. And I have personally spoken with people who’ve gone through hell, personally, in trying to work while on H-4 and the challenges and obstacles have been overwhelming. I think it is high time that we looked at this.
If the immigration reform bill doesn’t come through, how is it going to impact the immigrants who are waiting in line for Green Cards?
If no immigration bill is passed, then the time for processing for Green Cards, especially for people born in India, and maybe in China, secondarily, is right now, in the employment-based third preference category, people are talking 20 to 40 years to get the Green Card. And in the second preference, which is people with a master’s degree, or bachelor’s plus five years’ experience, they are talking 10 to 20 years for the Green Card case. What the bill, if it gets passed, will allow is it eliminates the per-country quota limits, thereby allowing a lot more people to come in without the limits that we now suffer with countries like India and China, which have a greater percentage because they are larger countries with more populations, coming into the U.S.
There has been intense speculation about the broken immigration system. As you just said, it might take 20 to 40 years for those in the EB3 category to get their Green Cards…
It’s true that unless the law changes nothing happens. The person in charge of the immigrant visa unit [at the U.S. Department of State], Charlie Oppenheim, explained to us at an American Immigration Lawyers Association meeting, that EB3 could end up taking between 20 and 40 years, particularly for nationals of India, people born in India. And that’s just because there is a per-country quota limit every year of how many people are allowed, and because in the current count a person who is married, for example, if the wife is the principal applicant, the husband is counted as the second, and if there is a child, or two born outside, that’s four immigrant visa numbers, or four slots taken up. [Under the] bill that has just passed the U.S Senate … all those four will be considered one immigrant visa per family unit. So we are basically, at least, doubling, or possibly quadrupling the number of immigrant visas without Congress getting involved, which would be fantastic. The Senate has [already] passed the bill. The House hasn’t passed it. Lord knows if the House will ever pass some version of it.
There are provisions in the Gang of Eight bill for those with doctoral degrees from anywhere in the world and those in the STEM field to get Permanent Residency immediately if they have job offers. Is this something you are in favor of?
Absolutely. I believe that the more we encourage people with high levels of education, particularly, with Ph.D. degrees, doctoral degrees, master’s degree candidates, or because we acknowledge openly that we are having this huge shortage in the STEM field, science, technology and math, by making it a little bit easier, by recognizing and giving them a little bit of an uptick and helping them to get their Green Cards faster, I think it is the way for us to go. We already have sort of a version of this in the current system, with the extraordinary ability [immigrant visas] for Nobel Prize winners, or professors or researchers, or those whose work is in the national interest. This would simply expand that self-petitioning group of people.
Recent reports however also point out that students from India are coming in fewer numbers to US universities. Some say it is reverse brain drain, some term it as brain circulation because of better opportunities back home. What is your prediction for the next decade?
I think it is extremely important for the United States to recognize that we have been the world leader in technology, science and every endeavor of human mind and spirit because we have been open to bring the best and brightest from around the world to this great country. America is a nation of immigrants. Everybody has come from somewhere else except the Native Americans. If we don’t wake up and realize that we need to continue to make America the destination for the smartest and best people from around the world, we as a nation are going to end up suffering in the United States. Now on the other hand, from the Indian perspective, the Indian economy has been growing way faster than the American economy. As a developing economy, of course, it had more room to grow, unlike a developed economy which has plateaued to some extent. And it is true that there are many more opportunities today in India than there were 10 or 15 or 20 years ago. So it is fantastic that kids now have an option in both countries to choose where they can go and whichever country makes it more conducive for its citizens and its people, and to encourage the best and brightest from around the world to work there. That’s where people are going to go. If America puts roadblock after roadblock after roadblock for employers to bring in people, guess what? Like a lot of major companies, they are going to have huge operations in other countries and we, in America, are going to lose way more because we benefit when immigrants come here and buy houses and buy cars and spend on our economy and help us to become more successful.
If the bill comes to pass, immigration lawyers and immigration law offices would be inundated with applications? How is your office gearing for that?
The Murthy Law Firm, [which has] the world’s most popular legal website at Murthy.com, is always prepared, and we are ready to deal with any challenge that is presented to us. We have strategic, creative lawyers that are always looking how to approach a problem and, rather than looking them as problems, we look at them as challenges and opportunities of how to resolve it because, at the end of the day, our heart is in the place of helping people to realize and accomplish their great American dream of living and working in this country, making that process smooth, effortless, seamless to work with employers and companies and businesses so that they can bring valued employees to this country, and help these valued employees find a fabulous home with a great employer and the best law firm in the world they can work with. We are looking to hiring, training, mentoring; we are keeping up to date with the latest changes in the law. We are monitoring the law to see which way the winds are blowing, and whatever happens, however turbulent the waters grow, we are able to, at the Murthy Law Firm, chart our course and navigate through turbulent waters and find the peace, the horizon, the rainbow at the end of dark clouds.
There have been several cases of Indian Americans arrested and prosecuted for tax evasion, for hoarding money in overseas bank accounts. What do you want to tell new immigrants to America?
The one advice I would give to most new immigrants coming to America, whether you are from India, or Africa, or Asia, Europe, is America is a nation of laws. We don’t really care who your father, or grandfather is, or your mother, or grandmother, for that matter. All we care is that we are a nation of laws. America believes in the rule of law. Don’t come here and try to scam the system. Don’t try to find ways to manipulate the system, or break the laws. Keep in mind that even U.S. presidents, while in office and considered the world’s most powerful man or woman, has ended up paying the price for having broken or violated the law. Don’t think you can come here and continue with a mentality that may have worked very successfully in another country. Producing false documents, producing information that is fraudulent, improper, unethical will only get you into trouble, not just in the short term, but in the long term. It will get you deported, it will prevent you from getting visas. It will make your life a living hell because American law is very, very strict, the immigration laws with respect to any kind of criminal activity, and having applying for visas, what they consider through fraud, improper documentation or misrepresentation can have a lasting negative impact on you and your life in this country and may completely close the door and shut your life down. So we need to change mindset, we need to appreciate that we are coming to a new country, a new culture, and we need to respect and appreciate their laws and norms, just as the way they respect our rules and our laws when they come to our country.
(This interview was updated July 16, 2013)
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