Looking for Work in All the Wrong Places: An Argument for the Adoption of a Job-Seeker Visa in the United States

• Author: Emily C. Callan
• Position: Attorney working in private practice in Arlington, Virginia
• Pages: 29-42

LOOKING FOR WORK IN ALL THE WRONG PLACES: AN ARGUMENT FOR THE ADOPTION OF A JOB-SEEKER VISA IN THE UNITED STATES EMILY C. CALLAN * In Alexandre Dumas’s acclaimed novel, The Count of Monte Cristo , the titular character, Edmond Dantes, completely remakes himself after escaping from prison, shedding his previous identity in its entirety and adopting a new life. 1 While eventually the Count’s true identity is revealed by his own admission, Dantes’s ability to drastically change his circumstances, and dramatically improve his life, was a direct result of the freedom of movement mankind enjoyed in the early 1800s. 2 Dumas’s story certainly puts to mind the ease with which generations past were able to pack up their belongings and move to new cities, or even countries, in order to start a new life and significantly improve their current circumstances. As the idea of “ex-pat life” continues to gain popularity, especially among millennials, hundreds of thousands of people now must take great pains to move to different countries in order to pursue higher education, foreign investment prospects, and new employment opportunities. 3 The employment-based immigration opportunities available to foreign nationals are several in number though extreme in their complexity. 4 In 2017 alone, United States Citizenship and Immigration Services (hereinafter “USCIS”), the federal agency within the purview of the Department of Homeland Security which adjudicates petitions for immigration benefits, * Emily C. Callan (nee Kendall) is an attorney working in private practice in Arlington, Virginia. She has published articles on multiple immigration and Constitutional issues in law journals including the Georgetown Immigration Law Journal, the St. Thomas Law Review, John Marshall Law Review, the Michigan State University College of Law International Law Review, the Journal of Supreme Court History, DePaul Journal for Social Justice, the University of Baltimore Law Review, and others. 1 ALEXANDRE DUMAS, THE COUNT OF MONTE CRISTO (Liz Heron trans., Alfred A. Knopf 2d ed. 2009) (1909). 2 See id. at 975. 3 See Nadine Ajaka, The Hardest Place in the World to Visit , ATLANTIC (Sept. 9, 2015), https://www.theatlantic.com/notes/2015/09/the-hardest-place-in-the-world-to-escape-to/404041/ [https://perma.cc/F4LQ-23HM]. 4 See generally 8 C.F.R. pt. 214 (2019). 30 CAPITAL UNIVERSITY LAW REVIEW [48:29 30 received close to half a million requests for employment-based visas. 5 These petitions range from requests for temporary authorization to work for a specific United States employer for a three-year period, to requests for extensions of previously approved work authorization, to requests for green cards that allow their holders to work in the United States on a permanent basis. 6 USCIS also adjudicates petitions for student work authorization through the Optional Practical Training program, as well as work authorization requests for asylum seekers and, until recently, individuals who benefited from deferred action or “DACA” protection from immediate deportation. 7 The major news outlets typically focus on only one type of employment-based visa, the H-1B visa, which is reserved for foreign nationals who are coming to the United States to work in a specialty occupation, defined as an employment position that requires at least a bachelor’s degree to perform the position’s job duties. 8 The H-1B visa enjoys the media spotlight due to its frequent use amongst elite Silicon Valley tech companies, and its unfortunate abuse by a number of American companies who have misused the H-1B program to the detriment of both foreign and United States workers. 9 However, as discussed further below, the H-1B visa is only the tip of the alphabet soup iceberg that is the employment-based immigration landscape: visas ranging from the O-1 and the L-1 to the TN and the E-3 all offer eligible foreign nationals the opportunity to move to the United States and take up employment as architects, graphic designers, software 5 U.S. CITIZENSHIP & IMMIGRATION SERVS., NUMBER OF SERVICE-WIDE FORMS BY FISCAL YEAR TO-DATE, QUARTER, AND FORM STATUS (2017), https://www.uscis.gov/sites/ default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20Dat a/All%20Form%20Types/Quarterly_All_Forms_FY17Q2_Final.pdf [https://perma.cc/4MNR-G35M] . 6 See id. 7 U.S. CITIZENSHIP & IMMIGRATION SERVS. DEP’T OF HOMELAND SEC., INSTRUCTIONS FOR APPLICATION FOR EMPLOYMENT AUTHORIZATION 3, 12 (2018), https://www.uscis.gov/ sites/default/files/files/form/i-765instr.pdf [https://perma.cc/TM2Y-HUMD]. 8 8 C.F.R. § 214. 2(h)(4)(i)(A)(11) (2019); Emily C. Callan, Is the Game Still Worth the Candle (or the Visa)? How the H-1B Visa Lottery Lawsuit Illustrates the Need for Immigration Reform , 80 ALB. L. REV. 335, 338–42 (2017). 9 See Ethan Baron, H-1B: Prison for Visa Fraud in Case Involving Bay Area Workers; Foreign Workers Illegally Forced to Pay Own Visa Fees , MERCURY NEWS (Mar. 26, 2019), https://www.mercurynews.com/2019/03/26/h-1b-prison-for-visa-fraud-in-case-involving-bay-area-workers/ [https://perma.cc/K5L3-HSB7]. 2020] JOB-SEEKER VISAS IN THE UNITED STATES 31 engineers, doctors, market research analysts, religious workers, and a myriad of other occupations. 10 However, conspicuous by its absence is the lack of an authorized job-seeker employment visa to the United States. 11 While many European countries such as Austria and Germany, as well as the United Kingdom and Australia, extend job-seeker visas or “working holiday” visas to foreign nationals, the United States requires foreign nationals to secure a United States company sponsor in order to come to this country and begin employment. 12 Since filling this gap in the United States immigration framework could greatly improve the overall immigration landscape for pundits on both sides of the aisle, a close examination of the mechanics of a United States job-seeker visa is clearly warranted. To do so, Part I provides an in-depth explanation of the current employment-based visa options in the United States. Part II explains how the introduction of a job-seeker visa would fit into the present immigration framework. Part III recommends ending and shifting a number of employment-based visa programs and explains the reasons behind this proposal. Finally, Part IV provides suggestions for improvements to streamline the entire employment-based immigration process. While the national attention remains captivated on such topics as border security, enforcement, and the parameters for issuing green cards, this critically important topic remains largely undiscussed and forgotten. 13 The 10 See 8 C.F.R. pt. 214 (2019). 11 See Temporary Worker Visas , U.S. DEP’T OF STATE – BUREAU OF CONSULAR AFFAIRS, https://travel.state.gov/content/travel/en/us-visas/employment/temporary-worker-visas.html [https://perma.cc/DW88-LDCE] (last visited Jan. 19, 2020). 12 See Working Holiday Programmes , FED. MINISTRY REPUBLIC AUSTRIA https://www.bmeia.gv.at/en/travel-stay/entry-and-residence-in-austria/working-holiday-programmes/ [https://perma.cc/A7WK-X3X5] (last visited Jan. 19, 2020); Tanja Zech, Working Holiday in Germany , DEUTSCHLAND.DE (Feb. 25, 2019), https://www.deutschland. de/en/topic/life/work-and-travel-in-germany-information-about-the-working-holiday-visa [https://perma.cc/P9NF-FAMM]; Youth Mobility Scheme Visa Tier , GOV.UK, https://www.gov.uk/tier-5-youth-mobility [https://perma.cc/ELD2-TE7S] (last visited Jan. 19, 2020); Subclass 462 Work and Holiday , AUSTRALIAN GOV’T DEP’T HOME AFF., https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/work-holiday-462 [https://perma.cc/ZG6C-DQCL] (last updated Jan. 17, 2020). 13 See Callan, supra note 8, at 351; see also Frank Camp, Immigration Such a Hot-Button Issue in 2016 Election That a Stunning Percentage Will Only Vote for Candidate They Agree 32...