Wright Lindsey Jennings
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Last Thursday, President Obama took executive action to change the country’s immigration system, unveiling a three-part plan during a speech to the nation:
First, we’ll build on our progress at the border with additional resources for our law enforcement personnel so that they can stem the flow of illegal crossings, and speed the return of those who do cross over.
Second, I’ll make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.
Third, we’ll take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.
While much of the attention has been on the third step (and its call for deferred action on undocumented parents of U.S. Citizens and lawful permanent residents), certain companies and visa beneficiaries will be able to take advantage of changes to the employment-based visa system.
Specifically, the President’s orders have identified five areas that will be revised. While more concrete guidance may take some time to emerge, the Department of Homeland Security (DHS) released a memo outlining the areas of change.
1. The employment-based visa system. The President’s orders seek to modernize the overall employment-based immigration visa system. The first step is ensuring that all immigrant visas authorized by Congress are issued to eligible individuals. Remarkably, the current practice fails to issue all approved visas for a fiscal year, despite demand, creating backlogs. The orders also seek to improve the system for determining when immigrant visas are available to applicants by modifying the visa bulletin system. Finally, the orders seek to provide stability to certain beneficiaries of approved employment-based immigrant visa petitions by amending regulations to ensure that approved petitions remain valid when the beneficiary seeks to change jobs or employers.
2. Foreign Students and Graduates. The orders will expand “optional practical training” (OPT) to include additional degree programs and longer time periods for certain foreign students of U.S. universities. Currently, foreign nationals studying in the United States on a F-1 student visa may request 12 months of OPT to extend their time in the U.S. for temporary employment in their field of study. Since 2007, students in the fields of science, technology, engineering, and math (STEM) have been eligible for an additional 17 months of OPT, for a total of 29 months. The orders seek to clarify and expand this opportunity for other degree programs.
3. Foreign inventors, researchers, and founders of start-ups. The President’s orders also attempt to promote research and development in the United States by clarifying the standard in which a “national interest” waiver is granted. Current law permits certain non-citizens with advanced degrees or exceptional ability to seek a green card without employer authorization if their admission would be in the “national interest.” The aim of this order is to promote the waivers greater use and create a program to grant parole status to inventors, researchers, and founders of start-up enterprises who do not yet qualify for the “national interest” waiver.
4. Intracompany transfers for multinational companies. Current immigration law allows multinational companies to transfer managerial and executive employees who possess “specialized knowledge” of the company’s products/processes to their U.S.-based operations through the L-1B visa program. To date, however, there has been vague guidance and inconsistent interpretations of the term “specialized knowledge.” The orders direct United States Citizenship and Immigration Services (USCIS) to issue a policy memorandum clarifying the term “specialized knowledge” so that companies are more confident in the program.
5. Changing jobs while seeking lawful permanent residency status. Finally, the President’s orders seek to increase worker portability by clarifying what is a “same or similar” job for foreign workers looking to become permanent residents. Current law allows these foreign workers to change jobs only if it is in the “same or similar” occupational classification. However, uncertainty over the definition of this term prevents these workers from seeking new job opportunities or accepting promotions for fear that such action might void their currently-approved visa petition. The orders direct USCIS to issue a policy memorandum to bring clarity to this issue.
It is hard to say how many companies and employees will benefit from these changes. In fact, many in the tech industry (and other immigration advocates) have complained that the President’s orders did not go far enough. For example, many employers want to see an increase in the number of employment-based visas, such as H-1Bs, which are capped at 65,000/year. However, this will require substantive action from Congress, which has thus far not passed comprehensive immigration reform.