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The U.S. doesn’t have a real statutory pathway to permanent residency for skilled immigrants. The current H1B to Green Card pipeline is built on a legal fiction

by rayiner 6mo ago

The U.S. doesn’t have a real statutory pathway to permanent residency for skilled immigrants. The current H1B to Green Card pipeline is built on a legal fiction papered over a visa program that was the word “non-immigrant intent” written all over the statute. Gemini gets this correct: “The H-1B visa is a nonimmigrant classification that allows U.S. employers to temporarily employ foreign nationals in ‘specialty occupations’ that require highly specialized knowledge and at least a bachelor's degree.”

airstrike 6mo ago
You're not actually wrong, but your phrasing makes it sound like that somehow excuses this travesty of justice. I can only assume that's accidental. You're the 17th most active person on HN, so I'm certain you've seen an overwhelming amount of evidence of how skilled immigrants are immensely beneficial to the US economy. The H-1B is not the only path to a green card. There are many ways, every case is different, and pretty much all of the paths suck, even if you do everything right. This decision only makes all of those paths worse.
- rayiner 6mo ago
  > evidence of how skilled immigrants are immensely beneficial to the US economy. That's irrelevant. "Justice" means following the rules. Congress gets to decide the immigration laws. Congress has never created a real system for skilled permanent immigrants. The term "H1B" actually comes from 8 USC 101(a)(15)(H)(i)(B). Subsection (a)(15) literally defines the term "immigrant" to exclude people in the subsequent subsections, including (H)(i)(b). Subsection (a)(15)(H)(i)(b) then reiterates that the category is for someone "who is coming temporarily to the United States to perform services." Congress didn't hide the ball. It's just an example of how the immigration laws have been a bait-and-switch for decades: https://www.nytimes.com/2024/10/29/podcasts/the-daily/election-immigration.html https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi...
  - digitaltrees 6mo ago
    Justice doesn’t mean following the law. It is possible to have an unjust law. Like red lining or slavery. Or civil forfeiture. Etc
  - airstrike 6mo ago
    Everyone who has applied for an "adjustment of status" is following the rules. It's literally a procedure you submit to USCIS. People who have done everything by "following the rules" are now seeing the US backpedal on what was promised to them via an administrative memo published by USCIS at the behest of the president—not through new legislation enacted by Congress. I don't know where you're getting your information from, but it's factually incorrect. And as someone else said, "justice" does not mean following the law. That's the definition of "legal". It's important to anchor these topics at a certain level of understanding of Law and Economics to discuss optimal policy, otherwise we'll just talk past each other with uninformed political views.
    - rayiner 6mo ago
      Your information is factually incorrect. You're confusing the USCIS procedures for the actual law. The current H1B to green card pipeline was never much more than "an administrative memo" to begin with. Read 8 USC 1101, specifically subsections (a)(15) & (a)(15)(H)(i)(B). The statute classifies H1Bs among the "nonimmigrant aliens," and states that the category is for someone "who is coming temporarily to the United States to perform services." Does that sound to you like it was mean to be a pathway to permanent residency? There was never a "promise" in the law. Instead, there were a set of USCIS practices and procedures that amounted to nothing more than writing down what USCIS was currently doing. But USCIS never had authority to turn what Congress created as a temporary worker program into a permanent path to citizenship. I'm sympathetic to people who put their eggs in the H1B basket. As an immigrant, how are you supposed to understand constitutional law and limits on executive power? But the fact is that the modern H1B regime was created almost entirely by executive fiat and it can be undone by executive fiat as well. (All the 1990 Act did was undo some presumptions but left the executive free to decide at any time that an H1B has immigrant intent, which is a basis for visa revocation.) You should listen to this NYT podcast on America's immigration system and how its operation in practice is very different from what voters thought they were getting: https://www.nytimes.com/2024/10/29/podcasts/the-daily/election-immigration.html https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi...
buzer 6mo ago
Intent (are you planning to switch immigrant visa later) and status (immigrant/non-immigrant) are two different things. Visas like B1 are non-immigrant and require that you are not intending to abandon your foreign residence. In practice that means that when you enter US you cannot be planning to apply for immigrant visa. H1B is also non-immigrant visa, but it is dual intent visa meaning it doesn't have that requirement and thus it's fine to enter even if you intent to apply for GC. You can even exit and re-enter after submitting your application.
- rayiner 6mo ago
  > In practice that means that when you enter US you cannot be planning to apply for immigrant visa. You are correct about this. > H1B is also non-immigrant visa, but it is dual intent visa meaning it doesn't have that requirement You're incorrect about this. The concept of "dual intent" doesn't exist in the Immigration and Naturalization Act. It was created by executive fiat. H1Bs, like other non-immigrant visas, still requires non-immigrant intent. It's different only that it has two carve-outs: Subsection (b) excludes H1Bs from the "presumption" of immigrant intent that applies to other categories of aliens. Subsection (h) provides that applying for permanent residency "shall not constitute evidence of an intention to abandon a foreign residence" for H1Bs. So H1Bs must still have non-immigrant intent. It's just that they are carved out of certain presumptions that would automatically establish immigrant intent, which would lead to denial of their visa. It gives the executive flexibility to essentially look the other way when an H1B applies for a green card. But it doesn't confer any legal rights* onto the H1B. The administration can at any time decide that you actually have immigrant intent and yank your visa.
bubblethink 5mo ago
This sounds quite non-sensical. The statutory pathway is employment based immigrant visas (EB 1 through 5). I don't get why you bring up H-1B into the discussion. If you are looking for congressional intent for this H-1B->EB AOS path, Congress passed AC21 precisely to address this path.

by rayiner 6mo ago

airstrike 6mo ago

You're not actually wrong, but your phrasing makes it sound like that somehow excuses this travesty of justice. I can only assume that's accidental. You're the 17th most active person on HN, so I'm certain you've seen an overwhelming amount of evidence of how skilled immigrants are immensely beneficial to the US economy. The H-1B is not the only path to a green card. There are many ways, every case is different, and pretty much all of the paths suck, even if you do everything right. This decision only makes all of those paths worse.

rayiner 6mo ago
> evidence of how skilled immigrants are immensely beneficial to the US economy. That's irrelevant. "Justice" means following the rules. Congress gets to decide the immigration laws. Congress has never created a real system for skilled permanent immigrants. The term "H1B" actually comes from 8 USC 101(a)(15)(H)(i)(B). Subsection (a)(15) literally defines the term "immigrant" to exclude people in the subsequent subsections, including (H)(i)(b). Subsection (a)(15)(H)(i)(b) then reiterates that the category is for someone "who is coming temporarily to the United States to perform services." Congress didn't hide the ball. It's just an example of how the immigration laws have been a bait-and-switch for decades: https://www.nytimes.com/2024/10/29/podcasts/the-daily/election-immigration.html https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi...
- digitaltrees 6mo ago
  Justice doesn’t mean following the law. It is possible to have an unjust law. Like red lining or slavery. Or civil forfeiture. Etc
- airstrike 6mo ago
  Everyone who has applied for an "adjustment of status" is following the rules. It's literally a procedure you submit to USCIS. People who have done everything by "following the rules" are now seeing the US backpedal on what was promised to them via an administrative memo published by USCIS at the behest of the president—not through new legislation enacted by Congress. I don't know where you're getting your information from, but it's factually incorrect. And as someone else said, "justice" does not mean following the law. That's the definition of "legal". It's important to anchor these topics at a certain level of understanding of Law and Economics to discuss optimal policy, otherwise we'll just talk past each other with uninformed political views.
  - rayiner 6mo ago
    Your information is factually incorrect. You're confusing the USCIS procedures for the actual law. The current H1B to green card pipeline was never much more than "an administrative memo" to begin with. Read 8 USC 1101, specifically subsections (a)(15) & (a)(15)(H)(i)(B). The statute classifies H1Bs among the "nonimmigrant aliens," and states that the category is for someone "who is coming temporarily to the United States to perform services." Does that sound to you like it was mean to be a pathway to permanent residency? There was never a "promise" in the law. Instead, there were a set of USCIS practices and procedures that amounted to nothing more than writing down what USCIS was currently doing. But USCIS never had authority to turn what Congress created as a temporary worker program into a permanent path to citizenship. I'm sympathetic to people who put their eggs in the H1B basket. As an immigrant, how are you supposed to understand constitutional law and limits on executive power? But the fact is that the modern H1B regime was created almost entirely by executive fiat and it can be undone by executive fiat as well. (All the 1990 Act did was undo some presumptions but left the executive free to decide at any time that an H1B has immigrant intent, which is a basis for visa revocation.) You should listen to this NYT podcast on America's immigration system and how its operation in practice is very different from what voters thought they were getting: https://www.nytimes.com/2024/10/29/podcasts/the-daily/election-immigration.html https://www.nytimes.com/2024/10/29/podcasts/the-daily/electi...

buzer 6mo ago

Intent (are you planning to switch immigrant visa later) and status (immigrant/non-immigrant) are two different things. Visas like B1 are non-immigrant and require that you are not intending to abandon your foreign residence. In practice that means that when you enter US you cannot be planning to apply for immigrant visa. H1B is also non-immigrant visa, but it is dual intent visa meaning it doesn't have that requirement and thus it's fine to enter even if you intent to apply for GC. You can even exit and re-enter after submitting your application.

rayiner 6mo ago
> In practice that means that when you enter US you cannot be planning to apply for immigrant visa. You are correct about this. > H1B is also non-immigrant visa, but it is dual intent visa meaning it doesn't have that requirement You're incorrect about this. The concept of "dual intent" doesn't exist in the Immigration and Naturalization Act. It was created by executive fiat. H1Bs, like other non-immigrant visas, still requires non-immigrant intent. It's different only that it has two carve-outs: Subsection (b) excludes H1Bs from the "presumption" of immigrant intent that applies to other categories of aliens. Subsection (h) provides that applying for permanent residency "shall not constitute evidence of an intention to abandon a foreign residence" for H1Bs. So H1Bs must still have non-immigrant intent. It's just that they are carved out of certain presumptions that would automatically establish immigrant intent, which would lead to denial of their visa. It gives the executive flexibility to essentially look the other way when an H1B applies for a green card. But it doesn't confer any legal rights* onto the H1B. The administration can at any time decide that you actually have immigrant intent and yank your visa.

bubblethink 5mo ago

This sounds quite non-sensical. The statutory pathway is employment based immigrant visas (EB 1 through 5). I don't get why you bring up H-1B into the discussion. If you are looking for congressional intent for this H-1B->EB AOS path, Congress passed AC21 precisely to address this path.