Polls agree that a majority of voters believe the U.S. immigration system is an increasingly broken set of rules that is failing American families, businesses and communities.
Yet, it has been almost two decades since the last major reform to the country’s immigration laws was enacted. There has also been little hope that Congress would ever pass a reformation bill anytime soon.
On Nov. 20, President Obama, in a 15-minute speech, announced a package of immigration reforms titled “Immigration Accountability Executive Action.” While the headlines have focused mostly on the deferred action program, which affects a portion of the unauthorized population currently living in the United States, and the fiery political storm his announcement engendered, there has been little focus on the improvements the president’s proposals could have on the adjudication of business-related immigration petitions. While the president’s actions still have to be formulated over the coming months, this article examines the potential positive effect the actions will have on the employment-based visa system.
Even though the president does not have the power to create new visa categories, his actions include new regulatory and policy measures to enhance the current employment-based immigration system. This article summarizes the key administrative reforms that the president directed the agencies to implement.
Impact on Foreign Entrepreneurs
A critical component to ensuring the advancement of the U.S. economy lies with innovative contributions advanced by foreign entrepreneurs. The current U.S. Citizenship and Immigration Services (USCIS) guidance effectively requires an entrepreneur to create a corporate board structure prior to utilizing available visas. However, such corporate structures often discourage foreign innovators from migrating to the United States since they would effectively give up control of their respective entrepreneurial undertakings. The proposed changes will allow certain researchers, inventors and founders of startup businesses to “parole” into the United States (or if already present in the United States, to be granted “parole in place”) if such applicants can demonstrate a minimum level of investment. The goal is to permit promising talent to develop new ideas in the United States as opposed to taking a passive role abroad while awaiting their visas.
Another proposal impacts foreign nationals who possess certain advanced degrees or exceptional abilities. Under the current immigration laws, if an individual’s work falls under the “national interest” category, such as a medical professional who develops groundbreaking medical innovation targeted at preventing strokes or Parkinson’s disease, that person can be allowed to immigrate to the United States without the need for visa sponsorship by a U.S.-based employer. However, because the rules governing the national-interest waiver are vague and cumbersome, the national-interest category often goes underutilized. The Department of Homeland Security has been directed to issue new guidance clarifying the regulations and policies of this category, which Congress has not defined narrowly.
Reformation of OPT for Foreign Graduates
The president proposed to extend the length of time foreign-national college graduates can remain in the United States in Optional Practical Training (OPT) status. Currently, foreign students who complete their degrees from U.S. colleges and universities are permitted to engage in hands-on practical training, in fields related to their study, for 12 to 29 months following graduation. During this practical training period, some employers sponsor H-1B petitions for these students and if successful, the student would be authorized to work for the sponsoring employer for a period of up to six years (under two three-year H-1B visa terms). The problem, however, is that there is a statutory annual cap of 65,000 new H-1B visas for foreign workers and an additional 20,000 H-1B visas reserved for individuals with advanced degrees within the STEM (science, technology, engineering and math) fields. Such caps are simply too low to meet the rather large demand and eligible applicants are selected by a random computer selection process. In fiscal year 2013-14, there were over 170,000 petitions for H-1B visas and many promising foreign nationals, trained in the United States, were not selected in the random selection process and had to return to their home countries. Lengthening the time of OPT status allows U.S.-trained international students to have more than one chance at the annual H-1B random selection process.
Improving Administration of Employment-Based Visas
Multiyear visa backlogs plaguing the employment-based immigration system are stymieing economic growth and failing to address the intended use of the program. Per congressional directive, there are, on an annual basis, approximately 140,000 employment-based immigrant visas available, subdivided by preference category and country of origin. Because of this quota, applicants within some of these categories, particularly those from China or India, who account for the majority of the petitions, can be subject to backlogs of five to 10 years prior to being able to apply for a green card. Even though many of these foreign nationals may have approved employment-based immigration petitions, they are precluded from applying for their green card because the quota for their respective employment-based preference category is oversubscribed.
Not being able to apply for their green card limits the employer’s flexibility and employee’s mobility, because any change in jobs may cause the employee to lose his or her “place in line” and have to start over. Because of these quotas, skilled workers do not change employers, do not seek new job opportunities, or even refuse to accept promotions for fear that they may negatively impact their currently approved employment-based petitions.
The president’s directive tells the Department of State, which administers the visa quotas, to develop methods that will ensure all of the visas available through Congress are actually used each year. Because the Department of State administers the quota counting, but the Department of Homeland Security actually adjudicates the applications, the complications of communication between the agencies mean some visas are unused each year. The president asked the departments to coordinate on regulations to allow more applications to be filed so that no visas go unused.
It is expected that any change will allow more individuals already prequalified as immigrants through approval of a visa petition to obtain the benefits of the final green card application, which includes the ability to change jobs or to travel internationally, while ensuring that all available visas are actually used each year.
A Small First Step
As a whole, the president’s package of executive actions is a great first step, but only a small one, toward a broader “fix” of the broken immigration system. While this article did not touch on the most discussed actions that carry beneficial effects on, for example, unauthorized parents of U.S. citizens, buried within the president’s package are a number of other proposed policies that will benefit individuals who are lawfully present in the United States under various visa categories and their employers. At the same time, the proposed policies are reflective of the president’s limited executive authority and actual details on some of the above summarized proposals await proposed regulations. The hope is that Congress will take a cue from the president’s limited ability to address skilled workers’ needs within the executive package and finally reform immigration law.
