United States: Obama’s Executive Actions On Immigration To Affect The Hiring And Retention Of Highly Skilled Foreign Employees

Last Updated: December 17 2014
Article by F. Keith Covington

The executive actions on immigration that President Obama announced in late November include a hodgepodge of new policies and directives that will impact millions of foreign nationals—both documented and undocumented—now living and working in the United States.

The most sweeping changes are the deferred action policies that will provide protection from deportation to an estimated 4.3 million unauthorized aliens, including those who have been in the U.S. for at least five years and have children who are citizens or legal permanent residents. Although these policies do not provide a pathway to citizenship or permanent legal status, they are expected to allow millions of undocumented aliens to obtain temporary work permits and other benefits.

These deferred action policies are very controversial. Just last week, a coalition of twenty states, including Alabama and Mississippi, filed a lawsuit in Texas seeking to enjoin these policies from taking effect. At this point, it's not clear how all this ultimately will turn out. Even assuming the policies are fully implemented, it will likely be several months before any new work permits are actually issued.

Other pieces of President Obama's immigration plan—though not drawing nearly the same level of attention—will also be of keen interest to many employers. Specifically, the President's executive actions include a number of new directives and policy revisions that will affect the ability of U.S. employers to hire and retain highly skilled foreign workers. Some of these initiatives require formal rule making by the Department of Homeland Security (DHS) and the Department of Labor (DOL) and, therefore, cannot go into effect for months. Other changes will be rolled out more quickly through informal policy guidance. Notably, none of these new policies are the subject of the Texas lawsuit filed last week.

Some of the expected initiatives involving highly skilled employees are:

  • Finalizing the May 2014 proposed rule to extend work authorization to the H-4 spouses of certain H-1B "specialty occupation" visa holders who are in the process of seeking an immigrant visa, or "green card." Under the current regulations, H-4 visa holders cannot legally work in the United States.
  • Clarifying the L-1B "specialized knowledge" visa program for "intracompany transferees." This program, designed to allow foreign companies to bring workers from their operations abroad to work temporarily in the U.S., has been plagued by vague guidance and inconsistent interpretation of what constitutes "specialized knowledge." The DHS will issue a policy memorandum to provide clarification on the "specialized knowledge" standard, with the goal of improving consistency in L-1B adjudications and enhancing confidence in the program.
  • Reforming the Optional Practical Training (OPT) program. The OPT program allows foreign nationals studying in the U.S. to stay to work temporarily in their field of study. The DHS will develop regulations to expand the degree programs eligible for OPT and extend the OPT time periods for foreign STEM (Science, Technology, Engineering, and Math) students.
  • Modernizing the employment-based immigrant visa system. Under the current system, many people seeking to immigrate must endure extremely long wait times for their green cards. Although this results largely from the numerical visa limits set by statute, the problem is compounded by various system failures, including the government's failure to ensure that all visas available in a particular fiscal year are actually issued. The DHS and the Department of State are to work together to alleviate these system failures and reduce the green card backlog.
  • Reviewing the PERM Program administered by the DOL. In most cases, before an employer can petition for an immigrant visa for a foreign worker, the DOL must certify that the employer has conducted a test of the relevant labor market and has been unable to find a qualified U.S. worker for the position. This process, known as PERM, is slow, cumbersome, and expensive. The DOL will undertake a review of the existing PERM program, with an eye toward speeding up and streamlining the process.
  • Enhancing R&D in the U.S. through use of the "national interest" waiver. Under current law, certain foreign nationals with advanced degrees or "exceptional ability" can seek a green card through a "waiver" of the PERM process by establishing that their admission to the U.S. is in the "national interest." This waiver is underutilized, in part because there is limited guidance on what constitutes the "national interest." The DHS will issue clarifying regulations, with the aim of encouraging foreign investors, researchers, and start-up enterprises who wish to conduct R&D and create jobs in the United States to use the waiver.

For now, many of the details surrounding these new initiatives remain unclear. However, the general consensus is that these changes, as a whole, will better enable U.S. employers to utilize highly skilled foreign labor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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