Obama Executive Action Promotes ‘Small Fixes’ to High-Skilled Immigration

By Roy Maurer Nov 24, 2014

President Barack Obama’s executive action granting nearly five million undocumented immigrants work authorization for three years also included several policy initiatives aimed at supporting high-skilled employment.

In conjunction with the president’s announcement, the Department of Homeland Security (DHS) issued a memorandum Nov. 20, 2014, directing U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) to review, expand and improve a number of classifications that affect businesses that employ high-skilled foreign talent, including expanding the Optional Practical Training (OPT) program, clarifying use of the national interest waiver, providing guidance on “specialized knowledge” in the L-1B category, and issuing a final rule on employment authorization for spouses of H-1B workers.

“[The changes] will support our country’s high-skilled businesses and workers by better enabling U.S. businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere,” said DHS. The changes will be rolled out over the coming months through a series of memoranda, regulations and other guidance.

David Grunblatt, partner and head of the Immigration & Nationality Group at law firm Proskauer described the president’s proposals affecting high-skilled employment as “a lot of small fixes” that will ease things a little but not significantly change the business universe. “I would call it clean up,” he said. “Are the visa quotas improved? Can I get more H-1B visas? No. The big things that would have really improved the system, like not counting H-1B dependents, recapturing unused visas, the things that would dramatically increase the number of visas available, they’re not on the table,” he said.

Some of the policy announcements affecting employment of high-skilled talent include:

*Issuing a final rule in December 2014 extending work authorization to the spouses of H-1B visa holders who have been approved to receive lawful permanent resident status based on employer-sponsorship. The rule, proposed May 9, 2014, would provide employment authorization documents to approximately 97,000 H-4 spouses of H-1B workers. “The U.S. will gain a generally high-skilled group of people who can start contributing to the economy immediately. This is a great start, but I hope the rule will be extended to all H-4 spouses of H-1Bs in the future,” said Tahmina Watson, immigration attorney and owner of Watson Immigration Law in Seattle.

*Clarifying “specialized knowledge” for L-1B petitions. Vague guidance and inconsistent interpretation of the term specialized knowledge in adjudicating L-1B visa petitions has created uncertainty for many U.S. companies wishing to transfer employees from a foreign affiliate to the U.S. “It’s a horrible problem. You know before you file that you’ll be getting a [request for evidence] and probably get denied,” said Watson. The agency will provide “clear, consolidated guidance” on the meaning of specialized knowledge. “We’ve been waiting for that for years already,” remarked Grunblatt.

*Increasing worker portability. Beneficiaries of approved employment-based immigrant visa petitions and their eligible family members will become eligible to file for adjustment of status to permanent residence sooner and obtain interim benefits, such as employment authorization and travel documents. Many beneficiaries wait years for a visa because of annual caps on employment-based green cards as well as per-country caps. “I’m very happy to see that there will be a mechanism for people caught in the employment-visa backlog,” said Kim Thompson, partner in the Atlanta office of Fisher & Phillips and chair of the firm’s Global Immigration Practice Group. “They’ll be able to file their adjustment of status applications, even though their priority dates are not current,” she said. “The people who are now ineligible to file are many, predominantly from India and China, who’ve been waiting for decades because a visa number is not available,” said Angelo Paparelli, partner in the Business Immigration Practice Group of Seyfarth Shaw, based in Los Angeles and New York.

In addition, long-awaited guidance on job changes that occur during the pendency of the green-card process will clarify that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field. USCIS is directed to consider changing its regulations to ensure that immigrants’ employment-based visa petitions remain valid when they change jobs or employers. The agency will issue a policy memorandum providing additional guidance on what qualifies as a “same or similar” job that the beneficiary of an approved petition can accept while awaiting a visa. Uncertainty as to what constitutes a “same or similar” job has prevented many immigrant beneficiaries from changing jobs out of fear that doing so would void their approved petitions.

*Enhancing options for foreign entrepreneurs. USCIS will implement two administrative improvements to promote start-up enterprises and investment in the U.S., by 1) clarifying when the national interest waiver can be used by noncitizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship and 2) granting parole status, on a case-by-case basis to individuals who may not qualify for the waiver but who have been awarded substantial U.S. investor financing or otherwise “hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

This is a significant development, remarked Watson. “This would allow startup entrepreneurs to come to the U.S. and set up their business, before moving on to a different visa, but we still need guidance on this,” she said. Income thresholds will be attached to eligibility so recipients do not become a public charge. They also won’t be able to receive public benefits like welfare or tax credits under the Affordable Care Act, for example. “I’m excited about the entrepreneur options, especially for the high-tech industry,” said Thompson.

“Using parole for entrepreneurs is a creative solution to this issue and very good for the economy and the country,” agreed Susan Cohen, founder and chair of the immigration practice at Mintz Levin in Boston. “The system is often stacked against [immigrant entrepreneurs], and they decide to move to other countries where the immigration system is much friendlier,” she added.

Watson reminded that these options will help some, but what is really required is a new visa category for startup businesses, which can only be created by Congress.

*Expanding and extending OPT for foreign students and graduates from U.S. universities. Under current regulations, foreign nationals studying in the United States on F-1 student visas may request twelve additional months of F-1 visa status for optional practical training, which allows them to extend their time in the United States for temporary employment in the relevant field of study. Students in science, technology, engineering, and mathematics fields are eligible for an additional 17 months of OPT, for a total of 29 months. 128,591 students and recent grads were approved for OPT in fiscal year 2013, according to USCIS data. USCIS will develop regulations to expand the degree programs eligible for OPT and extend the time period of the program.

The OPT program has been criticized for a lack of oversight and basic worker protections, likely leading to the DHS language stating that the expansion will “require stronger ties between OPT students and their colleges and universities following graduation,” and that ICE and USCIS will “take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.”

“While OPT expansion is good, the new rule could include labor market wage requirements, giving employers more to deal with,” said Cohen. “As it is now, employers have no wage requirements imposed unless they sponsor that individual for an H-1B.”

*Modernizing the labor certification (PERM) program for employment-based visas. The Department of Labor will review the PERM program for the first time in its 10-year existence and seek input on how it could be modernized to “be more responsive to changes in the national workforce.” Specifically, the department will seek input on options for aligning domestic worker recruitment requirements with demonstrated labor force shortages and surpluses; methods to modernize U.S. worker recruitment requirements; processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers; and possibilities for premium processing.

“PERM reforms are long overdue,” said Thompson.

*Reforming the employment-based immigrant visa system. This portion of the announcement has experts wondering what this could entail. The administration directs USCIS to “continue and enhance its work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas … work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year … and carefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions.

Some think that recapturing unused permanent resident numbers and not counting dependent spouses and children toward preference quotas could come out of this language. Others do not, including Paparelli: “This is a prospective change that will not recapture previously squandered green card numbers caused by bureaucratic ineptitude,” he said.

Not Bold Enough

Groups representing the technology industry said the president’s proposals fall short due to the explicit absence of the sector’s priorities such as increasing the number of available H-1B visas available and recapturing unused employment visas.

Employment-based green cards are capped at 140,000 per year, and H-1B temporary visas top out at 85,000 annually. For fiscal year 2015, USCIS received approximately 172,500 H-1B cap petitions, more than half of which were subsequently rejected through a random lottery.

The lack of visa recapture is the biggest disappointment, said Watson. “This is one thing that could single-handedly reduce the visa backlog in a blink. People are waiting for years, sometimes decades to get visas. Recapturing the unused visas will help reduce the backlog, help bring security and stability into peoples’ lives, and help employers grow their businesses and not worry about whether their employees will stay or leave the U.S.”

Experts cautioned that many of the changes announced by the administration need to go through rulemaking processes that could take months or even years to complete. “The lack of a time frame for action on many of these things is disconcerting," said Cohen. "Not knowing how long it’s going to take doesn’t help employers. Modernizing the PERM process for example, could take years.”

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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