By: Olivia Li
“I’ve been lawfully in America since 2008. I’ve attended high school, college [and] law school here. I’ve passed [and] been admitted to the bar. I’m a public defender defending people’s constitutional rights. I still have no path to citizenship except marriage…And I had to move MOUNTAINS to get a work visa. Legal immigration in America is a hardship I really could never put into words.”— Olayemi Olurin
On my walk home after class on Monday, September 27, I stopped and waited between Watts College and Walter Cronkite School to cross North Central Avenue. “Are you registered to vote in Arizona?!” a person with a clipboard in an orange polo shirt and a visor enthusiastically shouted at me from about ten feet away. “I’m not a citizen!” I instinctively shouted back, rehearsed, almost with pride that I always have a legitimate reason—that most of my peers don’t—to avoid advocates with clipboards. Usually, I would swiftly move on with my brisk walking, feeling unstoppable, literally and figuratively. But this time, the clipboard person hit back by shouting “Go get married!” with their hands fanning out in a stereotypical, “let me tell you loudly” fashion. I was expecting something more along the line of “aww, okay thank you for your time.”
“Go get married” — a line that always manages to take me out of my jovial mood. It’s a jolting reminder that for an F-1 visa holder like me, whether we end up staying in America somehow always hinges on our personal lives instead of professional success.
Most Americans seem to falsely believe that legal immigration through employment only depends on how hard you work and/or how long you’ve been in the U.S. That is simply not true. Many factors come into play when determining how easy or difficult one can obtain a green card (aka, permanent residency—the essential step to citizenship), including country of origin, type of academic degree, employer’s willingness and ability for sponsorship, etc.
A closer look at the process:
Once a person decides that they want to obtain a green card through employment-based immigration, the first step would be to get an employer that is 1) willing to hire you, and 2) willing to sponsor you for an H1B Visa. Let’s pretend that 1) is a piece of cake. As of 2), several sub-factors affect one’s chances, the most dispositive being whether one actually wins the H1B “lottery” – a random selection system where USCIS allocates H1B visas to applicants, whose academic degrees need to be at least at the Bachelor’s level. During fiscal year 2021, roughly 45% of applicants became lucky H1B visa holders, and the remaining 55%, not so much. Thus, this means that 2) can actually affect 1) significantly: if employers don’t want to risk sponsoring someone who ends up not getting picked through the “lottery” process, then they have the freedom to and often do reject a prospect employee, even if the employee qualifies for the position of hire. Additionally, not every employer has the ability, resources, or funding to sponsor an international graduate.
What does all this mean to an international JD student, who intends to become a practicing lawyer here in the US and eventually obtain a green card? The future holds quite a few obstacles. To start, a non-resident alien cannot work for the federal government since almost all federal positions require an applicant to be a U.S. citizen or national. This includes unpaid internships with a federal agency, such as the FDA, EPA, NIH, SEC, etc. It also means that clerkships in the federal courts are off the table. Surely there are other internship opportunities that welcome international students during law school; however, once it comes down to securing employment upon graduation, the number of employers that still welcome us suddenly dwindles. And most of the employers that are willing to sponsor for an H1B visa tend to be “Big Law” firms, which makes sense in terms of resources and funding. However, this still does not guarantee job and visa security. In a painfully pragmatic way, some of these willing employers would withdraw their sponsorship or even fire the international graduate if they did not win the H1B lottery, not to mention that passing the Bar Exam is also a challenge by and in itself. Some do not terminate employment right away, but most would review on a case-by-case basis. Moreover, because of the better chance of sponsorship by a “Big Law” firm, a lot of international JD students tend to steer away from public interest law, where the chance of getting sponsored is significantly lower. According to Harvard Law School, public interest employers rarely make permanent job offers to international law students who intern with them.
After all the hurdles of securing a job, as well as an H1B visa, then the green card process begins. The common theme is that a visa holder will also need sponsorship from the employer to obtain the green card. After employers file the green card petition for the employee, the petition is usually approved timely. However, due to the overwhelming number of applicants and insufficient number of green cards available, many approved petitions then enter the so-called “green card backlog.” Once you are entered into the backlog, the wait times vary drastically, depending on which country you are from, because of the per-country cap nature of the green card process. Specifically, China, India, Mexico, and the Philippines have the longest wait times, while most European countries have no wait time. For example, the Cato Institute estimates that the average wait time for Indian nationals who applied for EB-2 and EB-3 categories of employment-based green card is now around 84 years.
Marriage, on the other hand, grants one about 10-17 months of wait time to obtain a green card.
The path from green card to citizenship doesn’t really discriminate once you got your green card. So, from there on, the wait time averages around 24 months.
It then only seems rational that the person with a clipboard, who wants me to be registered to vote in Arizona, would yell “go get married.”
Time is a social construct, and in the case of employment-based immigration, a speed-up-your-aging-and-frustrations machine. In the next five years, will I still yell back “I’m not a citizen”? Most likely.
My name is Olivia Li, and I’m a 2L. I graduated from University of Massachusetts Amherst in 2017 with a B.S. in Psychology and Neuroscience. Before law school, I worked as a clinical research assistant with Alzheimer’s patients in a hospital setting. I interned as a forensic intern at Contra Costa County Public Defender’s Office (California) over the summer after my 1L year. My areas of interest in law are: criminal defense, science and criminal law, and post-conviction works. In my free time, I like playing Animal Crossing, listening to true crime podcasts, reading, and running when it’s not a million degrees out.