Immigration Reform Implications for High-tech Workers and Entrepreneurs

The actions announced by President Obama on Nov. 20 will affect not only millions of undocumented individuals but also many American businesses, foreign national employees and their families, and certain highly skilled innovators.

The administration described several wide-ranging policy changes that are intended to improve and modernize the existing employment-based immigration system. Here are some important takeaways:

• Improvements for employees seeking permanent residency. Due to backlogs in the system, many foreign national employees and their families face very long waits while their green card applications are processed. This delay stresses workers, impacts productivity, and affects the ability of American businesses to compete globally for talent. While they do not increase or eliminate current visa quotas, the policy changes are intended to maximize use of available immigrant (permanent) visas each year, improve efficiency, and introduce changes that give workers and their families more stability throughout the process. For example, it is widely expected that spouses of H-1B holders with approved green card petitions will at last be allowed to apply for temporary work authorization while their green card applications are processed.
• Increased flexibility for job changes during the green card process. Often, employees stuck waiting for long periods to complete their green card process change jobs during the normal course of their careers. The new policies will provide greater predictability to employers and employees regarding the ability to transfer a pending employment-based green card process to a new employer or to make job changes within the same sponsoring company. This will mean clarifying what kinds of changes constitute a “same or similar” job required to preserve a worker’s green card process under existing rules. Sensible policies like this accommodate natural career progression and provide greater flexibility and stability for workers and their U.S. employers.
• Enhancements to the PERM labor certification program. The Administration has instructed the Department of Labor (DOL) to modernize and streamline the “PERM” labor certification process for U.S. employers that want to sponsor foreign national employees for permanent The DOL will develop new regulations that account for modern workforce recruiting methods, identify labor force shortages and surpluses, revise standards for addressing nonmaterial errors on applications, and possibly provide for accelerated premium processing of certain PERM applications.
• Clarification of standards for international business transfers. The temporary L-1B work visa category was designed to facilitate the transfer within international businesses of skilled workers with key knowledge of a company’s products, technologies or international processes. Sadly, the concept of “specialized knowledge” for purposes of qualifying as an L-1B worker has become vague and confusing, largely due to inconsistent agency interpretation. The new policy will create clear guidance that should improve consistency and predictability, promoting confidence in this valuable temporary work program.

• More options for entrepreneurs and researchers. Proposed changes will better guide use of the underutilized “national interest waiver” option for certain highly accomplished individuals with advanced academic degrees and those with exceptional ability who engage in work that is in our national interest. Temporary admission (or “parole”) will now be available on a case-by-case basis for innovators such as scientific researchers and founders of technology startups who may not otherwise qualify for a national interest waiver, if they contribute substantially to research, economic development or job creation. For example, parole might be granted to the founder of a mobile software startup that raised a significant amount of U.S. venture capital, or to a scientist conducting cutting-edge clean-energy research. To protect public resources, new rules in this area would impose income and asset thresholds to ensure that qualifying individuals do not draw upon welfare benefits or healthcare tax credits while in the U.S.

• Expansion of job training for foreign students. Existing regulations already allow foreign students studying in the U.S. on student visas to get temporary work authorization through Optional Practical Training (OPT). This enables students to work in jobs related to their studies and facilitates the hiring of talented workers by U.S. companies. The proposed changes are intended to strengthen and expand the OPT program, possibly extending the period of work authorization available to students with degrees in STEM fields beyond the current maximum of 29 months.

For a deeper dive into these proposed changes, you can download a PDF copy of the related employment-based policy memorandum. Actual implementation of these policies through rules and regulations will follow over the coming months, so employers and employees should stay abreast of coming changes in this area and consult immigration counsel for specific guidance.