How President Obama’s executive actions will impact business visas

On November 20th, President Obama announced his executive actions on immigration reform. While there has been extensive media coverage about what this means for certain undocumented, the business community is left wondering what the proposed changes will actually mean in practice and when they might be implemented.     

The following is a brief synopsis of what we can expect, though exactly when and how some of the measures might be implemented is not yet clear. 

Streamline the green card issuance process and clear backlogs; increase portability; modernize PERM: There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays, particularly for people born in certain countries, including India and China.  Besides backlogs and delays, many unused visas go to waste every year as there’s currently no mechanism in place to re-use visas from one fiscal year to the next.  USCIS has been directed to work with the Department of State to address these issues. It’s also impossible or implausible for many green card applicants to change jobs for several years while the process is pending.  The Department of Homeland Security has been directed to make regulatory changes to allow these workers to move or change jobs more easily. Finally, many employment-based green card applications require the employer to test the labor market for available US workers in a process commonly known as “PERM.”  The Department of Labor has been directed to issue new regulations to modernize this recruitment process.

Pre-registration for Adjustment of Status: This important provision will allow people whose initial employment-based immigrant petition has been approved but who are caught in green card backlogs to pre-register for the next stage in the process (adjustment) so they can obtain work and travel authorization while they wait. This is expected to benefit over 400,000 people and their dependents and is quite radical. With pre-registration, employers may find sponsoring a prospective employee for a green card to be a viable alternative to an H-1B visa. Pre-registration may also make employers more willing to sponsor green card cases for employees in jobs that do not qualify for H-1B status.

Foreign investors, researchers, inventors and founders of start-up enterprises:  Introduction of Start-Up visas will require passage of a bill; in the shorter term, two existing immigration law provisions will be expanded: firstly, the National Interest Waiver which allows people of “exceptional ability” who can show their work is in the national interest to obtain green cards; and, secondly, the government’s parole authority which allows certain individuals to enter the US without a visa is to be extended to eligible investors, entrepreneurs, inventors and researchers who may not yet qualify for a national interest waiver but who:

  • · Have been awarded substantial US investor financing; or
  • · Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

Provide clear guidance on the meaning of “specialized knowledge” for L-1B visa category: The inconsistency and unreasonableness of adjudications of L-1B visa petitions in recent years due to the narrow interpretation of “specialized knowledge” has made this category almost redundant and the resulting outcry by all concerned has finally been heard.  USCIS has been directed to “issue a policy memorandum that provides clear, consolidated guidance” on the meaning of “specialized knowledge” to “improve consistency in adjudications, and enhance companies’ confidence in the program.” It is hoped that this will happen sooner rather than later and crucially, that the memorandum will actually be implemented by USCIS adjudicators once issued.

Spouses of certain H-1B visa holders: USCIS is to finalize a rule by January 15, 2015, to provide work authorization to spouses of certain H-1B holders whose initial employment-based immigrant petition has been approved.  Sadly, this won’t assist the spouses of H-1B visa holders who are not in the process of applying for a green card.

Optional Practical Training (OPT) for foreign graduates: Most foreign students on F-1 visas are eligible for 1 year of post-graduate optional practical training (OPT) as long as the work is in a field relevant to their degree program. 12 months is very often not long enough to allow these graduates to successfully apply for H-1B visas because of the quota system. STEM graduates may extend OPT for an additional 17 months in certain circumstances, which means they have more chances of ‘winning’ the H-1B visa lottery.  Nevertheless, many of the new provisions may benefit STEM graduates only.

USCIS and ICE have been directed to “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 STEM students and graduates.” 

Conclusion: Although many details still need to be worked out before the real impact of these measures emerges, the new rules required by the executive actions are likely to change the landscape of business immigration options in a positive way.

Share This