What the Immigration Executive Orders May Mean for Employers

By George Ernst,

Mitchell, Williams, Selig, Gates and Woodyard, P.L.L.C.

President Obama announced several reforms by executive action to the U.S. immigration system on Thursday night (November 20, 2014). Several of the reforms within President Obama’s executive orders are meant to address many deficiencies in the current immigration system specifically related to employment sponsored immigration.

Per President Obama’s executive orders, United States Citizenship and Immigration Services (USCIS), the Department of States (DOS) and the Department of Labor (DOL) will be tasked with considering and implementing changes to improve employment based immigration. It is important to note that the following initiatives have not yet been implemented, and may change over time. However, below is a summary of some of the proposed reforms to be implemented:

1.  Modernizing the Employment-Based Immigrant Visa System

USCIS and the DOS have been directed to take several steps to modernize and improve the immigrant visa process to help eliminate the backlogs for employment based green cards, including:

  • Ensure that all immigrant visas (i.e. “green cards”) visas are authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Improve the system for determining when immigrant visas are available and modify the Visa Bulletin system.
  • Improve the ability for beneficiaries of approved employment-based immigrant visa petition to change jobs and employers.
  • Provide additional guidance on the meaning of “same or similar” job under the current law.

2.  Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates from U.S. Universities

USCIS and Immigration and Customs Enforcement (ICE) have been tasked to develop regulations to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students.

3.  Enhance Opportunities for Foreign Investors, Researchers, and Founders of Start-Up Enterprises

USCIS has been tasked with issuing guidance or regulations to clarify the standards for granting a National Interest Waiver. Additionally, USCIS has been tasked with proposing a program that will grant parole status to inventors, researchers and founders of start-up enterprises who may not yet qualify for a National Interest Waiver, but meet other requirements.

4.  Improve the L-1B Intracompany Transfer Visa Program for Specialized Knowledge Workers

To improve the efficiency and predictably of L-1B visas for workers with “specialized knowledge,”  USCIS has been directed to issue a policy memorandum that provides clear, consolidated guidance on the meaning of “specialized knowledge.”

5.  Modernize Recruitment and Application Requirements for PERM Labor Certifications

The DOL has been tasked with reviewing its methods and seeking input to enhance the transparency, predictability and efficiency of the PERM Labor Certification, including:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses
  • Methods and practices designed to modernize U.S. worker recruitment requirements
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers
  • Ranges of case processing timeframes and possibilities for premium processing
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors

At the present time, these initiatives have not been implemented and it will take time for the reforms to go into effect. However, employers and foreign nationals should continue to keep in mind some of these proposed changes as they should have a positive impact on employment sponsored immigration.