Employers and High-Skilled Workers to Benefit from President Obama’s Executive Action

Maggio Kattar

Kim Robidioux, Senior Attorney

President Obama’s Executive Action directs the Department of Homeland Security (DHS) to create new policies and regulations that will improve the employment-based immigration process. The President realizes that our current policies and regulations need to be revised in order to support high-skilled businesses and workers in the United States. The following new policies and regulations – which are only being proposed at this time and are not yet in effect – will enable U.S. businesses to hire and retain highly skilled foreign national employees, as well as provide these employees with increased flexibility for their career paths:

Improving the Job Mobility of Foreign Workers:

Many foreign nationals who are going through the employment-based green card (immigrant visa) process can find themselves “stuck” for two reasons:

  1. Waiting to process. The demand for immigrant visas far exceeds the current supply for many nationalities. While an employer may begin the immigrant visa process for an employee as soon as they start, workers cannot move into the final stage of the process, called “Adjustment of Status” until a visa is available. This process can easily take a few years, but, as visas are further limited by nationality, foreign workers born in countries from which there are many skilled workers employed in the US, like India and China, may wait even longer.
  2. Career Progression. Once an individual finally reaches the “Adjustment of Status” stage of immigrant visa process, he/she may change employers, but only if the new position is in a “same or similar” occupational classification as the job for which they were initially sponsored. For example, if the process started five years ago when they were a systems engineer, and they now wish to take a managerial position with another employer, the new job may not be considered to be in the “same of similar” occupational classification, making the worker unable to move without risking having to start the green card process all over again. The term “same or similar” has not been clearly defined by USCIS for over a decade and has thus created a lot of uncertainty around the portability process.

Supporting natural career progression for foreign workers without the fear of losing their place in line for a green card can also help create job openings for other workers. Therefore to remove these barriers USCIS has been directed to:

  • Improve its work with the Department of State (DOS) to ensure that no employment-based immigrant visas go unused. DOS will modify its visa bulletin system to improve the process of knowing when immigrant visas will be available so that individuals can file their applications as soon as possible. USCIS has been directed to amend its regulations so that long-standing approved I-140 Immigrant Worker Petitions will remain valid in situations where employees seek to change jobs or employers.; and
  • Issue a policy memorandum to provide guidance that will clarify what is meant by the term “same or similar” and what job changes will qualify for portability. It is expected that this guidance will clarify that an individual will be able to accept a promotion to a supervisory position or accept positions/promotions within their normal career path.

This will allow for greater movement of highly-skilled foreign nationals so that their talent and skills may be best utilized by employers in the U.S., without holding up openings that could be filled by others.

Although no specific timeline has been provided for any of these administrative improvements, USCIS has agreed to work on the development of necessary guidance and regulations. USCIS has provided a summary of the executive actions on immigration on their website.

Expanding Optional Practical Training eligibility and time for Foreign Students:

At this time, foreign students may work in the U.S. during and/or following completion of their degree for up to 12 months by requesting approval for optional practical training (OPT). When a foreign student graduates from a U.S. university with a degree in science, technology, engineering, or mathematics (STEM), they are eligible for an additional 17 months of OPT provided that they are employed by a company enrolled in E-Verify. Pursuant to the Executive Action, Immigration and Customs Enforcement (ICE) has been directed to create regulations that will expand the degree programs eligible for STEM extension and to also extend the period of time in which a student may use STEM OPT. Although there is no set time period to create these regulations, USCIS has stated that it will work with ICE to develop these regulations for notice and comment by the public.

Enhanced Opportunities for Foreign Inventors, Researchers and Founders of Start-Up Enterprises:

USCIS has been directed to implement the following administrative improvements:

  • Issue guidance or regulations that will clarify the national interest waiver standards with the goal of increasing the use of this classification which will benefit the U.S. economy. The National Interest Waiver is a mechanism for foreign individuals with advanced degrees or exceptional ability to pursue a green card without employer sponsorship provided that the granting of permanent resident status is within the national interest and will benefit the U.S. economy. This category is not used very often and is highly scrutinized by USCIS.
  • USCIS also has been asked to create a program that will permit DHS to issue parole status to investors, researchers and founders of start-up enterprises who do not yet qualify for a national interest waiver but have been awarded substantial U.S. investor financing or who are developing new technologies or are engaged in cutting edge research which will potentially bring innovation and job creation to the U.S. The parole status will enable these individuals to temporarily enter the United States in order pursue their research and development of new business in the U.S. in situations where a work-authorized visa (i.e. H-1B, TN, O-1) would not otherwise be available.

Improve Guidance for Intracompany Transferee, L-1B (Specialized Knowledge) Nonimmigrant Visa Classification:

The L-1B classification is used by multinational companies to transfer their “specialized knowledge” employees (i.e. engineers, human resource personnel, product specialists, etc.) from abroad to their facilities in the United States. The use of the L-1B program has been essential to many companies, but, within the past several years, USCIS and DOS have been more and more restrictive with respect to granting L-1B status to foreign nationals. Moreover, the adjudication of L-1B petitions and applications has been inconsistent, especially with respect to the interpretation of the term “specialized knowledge”. Thus, USCIS has been directed to issue a policy memorandum that will provide clear, consolidated guidance on the interpretation of the term “specialized knowledge”.