Executive Orders on Immigration Impact High-skilled Businesses and Workers

As part of President Obama’s Executive Orders on Immigration, Homeland Security Secretary Jeh Johnson has released a policy memorandum to U.S. Citizenship and Immigration Services. The memorandum is broken into five policies aimed to support U.S. high-skilled businesses and workers.

The new policies outlined in the memorandum will be good for both U.S. businesses and workers by continuing to grow the economy and creating jobs. The policies 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 advancements with their current employers or seek employment elsewhere. This increased mobility is believed to create a more even playing field for U.S. workers. These policies will also increase agency efficiencies and save resources. They are as follows:

1. Modernizing the Employment-Based Immigrant Visa System

The current employment-based immigration system is stricken with extremely long wait times for immigrant visas, or green cards, due to relatively low green card numerical limits established by Congress in 1990. The resulting backlogs for green cards have prevented U.S. employers from retaining highly skilled workers critical to their business.

To combat this, Johnson has directed that USCIS take three steps to modernize and improve the immigrant visa process. First, USCIS should continue to 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. Second, USCIS should work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year. Third, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.

2. Reforming “Optional Practical Training” for Foreign Students and Graduates from U.S. Universities

Under long-standing regulations, foreign nationals studying in the U.S. on non-immigrant F-1 student visas may request 12 additional months of F-1 visa status for optional practical training (OPT), which allows them to extend their time in the U.S. for temporary employment in the relevant field of study. This OPT program provides important benefits to foreign students and the U.S. economy.

Johnson has directed that the program should be evaluated, strengthened and improved to further enhance American innovation and competitiveness, consistent with current legal authority. More specifically, USCIS and ICE should develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign students and graduates. ICE and USCIS should also require stronger ties to degree-granting institutions to better ensure that a student’s practical training furthers the student’s full course of study.

3. Promoting Research and Development in the United States 

To enhance opportunities for foreign investors, researchers and founders of start-up enterprises wishing to conduct research and development in the U.S., Johnson directs USCIS to implement two administrative improvements to the employment-based immigration system. The first requires that USCIS issues guidance or regulations to help clarify the standard by which a national interest waiver can be granted. Second, USCIS should propose a program that will permit DHS to grant parole status on a case-by-case basis to inventors, researchers and the founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation.

4. Bringing Greater Consistency to the L-1B Visa Program 

The L-1B visa program for intracompany transferees is critically important to multinational companies. However, vague guidance and inconsistent interpretation of the term “specialized knowledge” in adjudicating L-1B visa petitions has created uncertainty for companies seeking this visa classification for their employees. To correct this problem, USCIS should issue a policy memorandum that provides clear, consolidated guidance on the meaning of specialized knowledge. This would bring greater coherence and integrity to the L-1B program, improve consistency in adjudicating petitions and enhance companies’ confidence in the program.

5. Increasing Worker Portability 

Currently, uncertainty within the employment-based visa system creates unnecessary hardships for many foreign workers who have filed for adjustment of status but are unable to become permanent residents due to a lack of immigrant visas. The current law allows such workers to change jobs without jeopardizing their ability to seek lawful permanent residence, but only if the new job is in a same or similar occupational job category. Unfortunately, there is an uncertainty as to what constitutes a “same or similar job.”

In order to eliminate this uncertainty, USCIS should issue a policy memorandum that provides additional agency guidance, bringing needed clarity to employees and their employers with respect to the types of job changes that constitute a “same or similar” job under current law.

If you are interested in immigrating to the United States via one of the visa categories mentioned above, or have any questions regarding high-skilled businesses and workers, please schedule a consultation to speak with one of our attorneys today!

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