President Obama's Executive Action: What it Means for Businesses, Highly-Skilled Workers, and Entrepreneurs

Hannah F. Little, Esq., Partner
N.C. Board Certified Immigration Law Specialist
Hannah.Little@garfinkelimmigration.com

In November 2014, President Obama announced "immigration accountability executive action," which includes a series of measures to implement common-sense reforms to an outdated immigration system. Media coverage focused on his plan to grant temporary protections to millions of undocumented parents of U.S. citizens and permanent residents. However, while often overlooked in the controversy surrounding that program, the President also articulated several initiatives to support U.S. high-skilled businesses and workers, as well as foreign-born entrepreneurs. In doing so, the President recognized that encouraging business innovation and the flow of highly skilled immigrants to the U.S. are important priorities for the U.S. economy. While the strategies outlined in the executive action are largely welcomed by the business community, many of these strategies remain in limbo as the involved government agencies work towards further guidance with no published deadline for clarification or implementation.

Opportunities for foreign national inventors, researchers, and entrepreneurs

The President's program would allow certain inventors, researchers, and founders of start-up enterprises to be "paroled" into the U.S. provided these individuals can show they have a certain amount of investment funding. "Parole" is a temporary status which the President hopes to utilize to facilitate the entry of these foreign entrepreneurs to conduct research and development, engage in start-up activities, etc. Furthermore, the President's plan contemplates expanding the use of the National Interest Waiver program to grant these individuals permanent status (the "green card") if they can demonstrate that their activities benefit the U.S. economy. He directed U.S. Citizenship and Immigration Services ("USCIS") to issue additional guidance on this program.

Reform "Optional Practical Training" for Foreign Students and Graduates from U.S. Universities

Currently, foreign nationals studying in the U.S. on temporary F-1 student visas may request 12 months of "optional practical training" ("OPT") which allows them to remain in the U.S. to engage in temporary employment in the relevant field of study. Students in the fields of science, technology, engineering, and math (STEM) are eligible for an additional 17 months of employment pursuant to OPT, for a total of 29 months. The President has directed the relevant agencies to develop regulations to expand the degree programs eligible for OPT and to extend the time period and use of OPT for foreign STEM students.

Greater Consistency to L-1B Program

The L-1B visa program allows multinational companies to transfer foreign employees who have "specialized knowledge" of the company's products or processes to the U.S. from abroad. This program is a vital tool for managing a global workforce. However, in recent years, this program has been plagued by inconsistent adjudication and increased denial rates. The President directed USCIS to provide greater coherence and integrity to L-1B program and to improve consistency in adjudications. On March 24, 2015, USCIS issued a draft policy memorandum providing additional guidance on this program; upon final publication, USCIS adjudicators must follow its terms. The new policy guidance reminds adjudicators that the appropriate standard of review for L-1B petitions is "preponderance of the evidence"; in other words, the petitioning employer must show that what it asserts is more likely than not to be true and is not obligated to remove all doubt from the adjudication.1 Furthermore, this new memorandum clarifies undefined terms - "special" and "advanced" - found in legislation and regulation. Nonetheless, many immigration practitioners remain concerned that the policy guidance does not go far enough and is so loosely drafted that adjudicators may continue the status quo of inconsistent and unreasonable adjudication of these petitions. Given its recent publication date, the practical effect of the new guidance remains to be seen.

Modernize the Permanent Labor Certification (PERM) Process

In most cases, the first step in the employment based green card process is the Department of Labor's ("DOL") labor certification process for the permanent employment of immigrant foreign workers ("PERM"). In this step, the DOL certifies to the Department of Homeland Security ("DHS") and the Department of State ("DOS") that there are not sufficient able, willing, and qualified U.S. workers for the foreign national's position and that the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers. The DOL has not revised its regulations for this process in over ten (10) years.2 The President has directed the DOL to initiate a review of the PERM program and its regulations, specifically options for identifying labor force needs and methods for aligning domestic work recruitment requirements accordingly, modernizing U.S. worker recruitment requirements, clarifying employer obligations, implementing an option for premium (faster) processing times, and allowing applicants to efficiently address nonmaterial errors.3

Reduce backlogs for employment based green cards

The employment based green card system is frustratingly slow and many workers are currently forced to wait years, in some cases more than a decade, for immigrant visas or "green cards" as a result of numerical limits established by Congress in 1990. Despite the heavy demand, thousands of visas have gone unissued each year.4 As a result of the President's executive action, U.S. Citizenship and Immigration Services ("USCIS") has been directed to improve its work with the Department of State ("DOS") to ensure that all green cards authorized by Congress are issued when there is sufficient demand as well as improving the system for determining when immigrant visas ("green card") are available to applicants. Finally, USCIS was tasked with implementing changes to allow foreign national beneficiaries of approved employment-based immigrant visa petitions more flexibility in switching jobs or employers.

Although the relevant government agencies have not yet published further guidance or proposed regulatory changes to address these issues, increased efficiency and a decreased wait time for the employment based green card would be widely welcomed by the business community and highly skilled employees.

Increase Worker Portability

Currently, foreign workers who have filed for adjustment of status ("green card") but are unable to become permanent residents due to a lack of available visas may change jobs without jeopardizing their eligibility for lawful permanent resident status. However, the new job must be in a "same or a similar" occupational classification as the old job or the worker risks losing his ability to seek lawful permanent residence. As there is currently no regulatory or policy guidance on what constitutes a "same or similar" job, many workers have not changed employers, sought new job opportunities, or accepted promotions for fear that their pending green card cases would be voided. The President has tasked USCIS with clarifying the types of job changes that constitute a "same or similar" job under the law with an emphasis on removing unnecessary restrictions to natural career progression to ensure that foreign workers have increased flexibility and stability, thereby ensuring equity for U.S. workers.5

 

1 Id.

2 http://www.dol.gov/dol/fact-sheet/immigration/perm.htm

3 Id.

4 Memorandum from Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, and Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Policies Supporting U.S. High-Skilled Businesses and Workers (November 20, 2014).

5 Id.