Safe to say, companies across most sectors are seeking ways to revamp their technological capabilities to streamline processes and create efficiencies. After all, innovative technologies can simplify everyday tasks for customers (once new technologies are adopted). The race to create more convenient and efficient customer experiences has raised the demand for tech talent. However, the U.S. currently lacks sufficient tech workers. A Harvey Nash Group poll of approximately 3,000 tech leaders revealed that sixty-seven percent attested to a shortage of tech talent. Similarly, a U.S. Department of Defense report acknowledged that the country needs to improve upon STEM (Science, Technology, Engineering, and Mathematics) education to meet market demands. Thankfully, many tech industry leaders are aware of how immigrants can assist with filling the talent gap. Data compiled by the American Community Survey (ACS) reveals that immigrants made up approximately one-fourth of U.S. STEM workers in 2019.
Yet, issues with the green card process are discouraging some employment-based immigrants from choosing to live in the U.S. And for good reason, their children might suffer. Here’s the background: When the primary applicant applies for a green card, the spouse and children under the age of 21 are generally included in the application. This process involves submitting a PERM (Program Electronic Review Management) labor certification to the U.S. Department of Labor in order to demonstrate that the applicant will not take away a job opportunity from an American citizen. It also entails submitting a Form I-140 to the U.S. Citizenship and Immigration Services to convey how the employer has the requisite funds to pay the primary applicant’s prevailing wage and that the primary applicant is qualified for the position. Once these steps are completed, a lengthy pause in the process ensues as the applicant(s) must wait for a green card(s) to become available. Per U.S. policy, immigrants of any country are limited to seven percent of the green card country cap unless the green cards would otherwise be unused in the given year. As a result, employment-based immigrants from populous countries, such as India, must wait many years, sometimes decades, for green cards to become available due to the seven percent country cap.
During this lengthy wait period, a derivative child applicant may “age-out”, if the child turns 21 years of age before a green card becomes available. This means that she or he can no longer obtain a green card through the primary parental applicant and will lose his or her place in line to become a permanent resident. As a result, the applicant is removed from the green card queue and must either leave the U.S. or find another temporary visa to remain in valid status. For example, the applicant can remain in the U.S. if he or she obtains a student visa. But then, what next? Even with a student visa to start, the child applicant may need to be selected during the H-1B visa lottery in order to remain in the U.S. after college graduation. If his or her H-1B cap registration is selected, the individual may ultimately face another lengthy wait once he or she returns to the green card queue – even though the individual previously waited for many years as a derivative applicant on their parents’ application.
These child applicants have become known as “Documented Dreamers” and there are over 200,000 of them currently in the U.S. The average age for when they were brought to the U.S. by their parents is five years old. As they resided in the U.S. with lawful status until turning 21 years old, Documented Dreamers cannot apply for the deportation protections and work authorization given by the Deferred Action of Childhood Arrivals (DACA) program. To be eligible for DACA protections, the child must have “no lawful status on June 15, 2012.”
This has caused much concern across employment-based immigrant families; due to the uncertainty surrounding whether a green card will become available before a child turns twenty-one years old, some families have decided to leave or forego coming to the U.S. Instead, they have brought their respective tech talent to other countries, such as Canada and Australia. Notable U.S. tech companies have become concerned about these events because studies show that immigrants bring the requisite skills and drive for innovation that is so needed in the tech industry. Moreover, the U.S. economy would benefit if Documented Dreamers remained in the country. One study shows that the net fiscal benefit for the U.S. would be over $30 billion.
Thankfully, business leaders and policymakers are seeking ways to resolve this predicament. Bi-partisan legislation called the America’s Children Act of 2021 has been introduced to prevent child green card applicants from aging out. The Act would lock in the applicant’s age to the green card’s filing date rather than the date of when the green card becomes available and is issued. In addition, the Act would allow Documented Dreamers over sixteen years old to work if their respective green card application remains pending. In order to qualify for such protection and work authorization, the child applicant must be present in the U.S. for at least ten years and also must have graduated from an institution of higher education. Aside from legislation, a coalition of U.S. tech companies including Amazon, Google, and IBM, and trade organizations, including AILA and the U.S. Chamber of Commerce sent a letter to Alejandro N. Mayorkas, Secretary of Homeland Security, on June 6, 2022. The letter asks the government to create more vigorous policies that address the aforementioned issues. The letter also encourages Congressional members to endorse the America’s Children Act.
Aside from having a lot of potential and a strong desire to become American citizens, Documented Dreamers wish to remain with their families in the U.S. without uncertainty. Further, many of these children spent a significant amount of time in the U.S. education system. Allowing Documented Dreamers, these children who have lived most of their lives in the U.S., to remain here based on pending green card applications is not only equitable for affected families but beneficial for the U.S. economy.
