President Obama announced his plans for an executive action on Nov. 20 to address the immigration process in the United States. Daryl Buffenstein and Kevin Miner, partners in the Atlanta office of the immigration law firm Fragomen Worldwide, expressed appreciation for the president’s actions, but stated that the proposed changes “do not go far enough and are no substitute for comprehensive immigration reform.”
Mr. Buffenstein and Mr. Miner have been actively involved with efforts to shape high-skilled immigration policy and legislation for many years, and both emphasized that the plans announced by the president will not have any immediate effect on the problems businesses face when trying to recruit or retain skilled foreign national workers.
An interview with Mr. Buffenstein and Mr. Miner on the executive action follows:
Global Atlanta: President Obama has announced plans for making changes to immigration policy in the United States. There has been a lot of coverage of the changes for undocumented immigrants, but there are also plans for changes affecting high-skilled immigration. What will change about the high-skilled immigration process as a result of the President’s announcement?
Mr. Buffenstein: There is not yet a lot of detail, but the president did announce several broad policy changes that can be accomplished without the need for congressional action. In addition, both USCIS – the United States Citizenship and Immigration Services – and the Department of Labor, or DOL, issued memos following the president’s announcement with a framework of changes that are being considered.
It is important to understand that there are no immediate changes to any high-skilled immigration processes as a result of the president’s speech, but rather that the agencies are working on some process changes that if implemented could have a beneficial effect on the process. However, these actions are temporary fixes that are very limited in scope, and congressional action is still badly needed to modernize and improve our immigration laws.
Global Atlanta: What do you see as some of the most important changes, and when could those take place?
Mr. Miner: Probably the most important potential change relates to the green card process. There is an annual quota on the number of employment-based green cards that can be issued each year, and that quota hasn’t been increased in more than two decades.
Demand for employment-based green cards far exceeds this outdated supply, and large backlogs have developed. This particularly affects people from India and China, because the law also limits the number of green cards that can be issued to nationals of any one country each year. Each month, people stuck in this backlog await publication of the State Department’s Visa Bulletin, which shows what applications are “current” such that the final step in the green card process – called adjustment of status – can be filed.
Just being able to file for adjustment of status is important, because once the adjustment of status application is filed the individual’s family members can obtain work and travel authorization, and after the application has been pending for six months there is greater ability to change roles or be promoted and not have to start the green card process all over again.
The president has directed the State Department to revise the way that the Visa Bulletin is prepared, which should allow people stuck in the backlog to file an adjustment of status application or at least get the benefits of doing so even if the backlog still exists. The government estimates this could affect more than 400,000 people.
Global Atlanta: What is the practical effect for businesses of this kind of change to the green-card process?
Mr. Miner: First, depending on how and when it is implemented, it could greatly improve worker mobility. Under current rules, employers need to be careful about making major changes to the job duties of an employee who is stuck in the green card backlog, because a significant promotion or other big change could mean the green card process has to start all over again.
This change, depending on how it is implemented, could eliminate that problem, and could make it easier for employers to hire workers who have been waiting through the green-card process with another employer.
Second, it would provide the opportunity to obtain employment and travel authorization as part of the green card process, which could eliminate the need to continue to renew the underlying H-1B visa that many of these employees hold. This would save businesses money.
Third, it would improve worker morale because employees stuck in the backlog would at least have the protection of a pending green card application and could obtain employment and travel authorization as part of that process.
Global Atlanta: We hear a lot about the shortage of H-1B visas and problems foreign students graduating from U.S. universities have remaining in the United States. Will anything change for H-1B workers or foreign students?
Mr. Buffenstein: Yes, the president’s proposal discusses that as well. While the president cannot change the H-1B quota – only Congress can do that – the president is planning to make changes to expand options for foreign students so that it is easier for them to remain in the U.S. after graduating.
Most students are eligible for a one year period of work authorization after they graduate called Optional Practical Training, or “OPT.” Under current rules, many students with a STEM degree, which is science, technology, engineering, or mathematics, can obtain an additional 17 months of OPT after that original one year period of OPT expires.
One of the proposals announced by the president is for USCIS and other agencies involved with the OPT program to make changes to that program that might allow for more students to obtain that 17-month extension, or perhaps allowing for an extension beyond the current 17 months. This kind of change would allow those students to work in the U.S. while their employers try to obtain H-1B status on their behalf under the current quota.
This would be an important change for businesses, as it would allow them to continue to access highly talented employees even though there are not enough H-1B visas available. It isn’t a long term solution, however, and Congress still needs to address the insufficient H-1B quota and the quota on green cards to really be able to attract and retain the world’s best and brightest students.
Global Atlanta: The president mentioned changes to help entrepreneurs who are creating jobs. What kinds of changes will be made to help new companies?
Mr. Buffenstein: Under current rules, it can be quite difficult for an entrepreneur to obtain a visa to be able to live and work in the United States. While there are certain visa categories available that are sometimes an option, often USCIS wants to see that the business is well-established and is hesitant to approve applications for startup companies.
The president has directed USCIS to review this process, and to modify some of the agency’s existing rules to make it easier for entrepreneurs to live and work in the United States. This may include changing the criteria for the National Interest Waiver green card process or using a currently rarely applied procedure called “parole in place,” which can provide work and travel authorization without the need for a specific visa category approval.
Global Atlanta: What other changes can we expect based on the president’s announcement?
Mr. Miner: First, there has been a regulation pending for quite some time with Office of Management and Budget that would allow spouses of H-1B workers stuck in the green card backlog to obtain employment authorization. Based on the announcement yesterday, we are expecting this regulation to be finalized and implemented within the next couple of months.
Second, USCIS is planning to release a new guidance memorandum clarifying the requirements for L-1B visas, which are visas used by multinational companies to transfer employees to the United States who have “specialized knowledge” gained with the company abroad.
Many multinational companies rely on this kind of visa to bring employees to the U.S. who have knowledge of proprietary or internally-developed technology, systems, or processes. There has been a lot of inconsistency with adjudications of L-1B applications by USCIS, and the guidance memorandum is supposed to improve this adjudication process and make the outcome of this kind of application more predictable.
Third, the president has directed the Department of Labor to review and modernize the PERM labor certification process, which is the first step that most companies need to complete to obtain a green card for a skilled foreign national employee. The PERM process hasn’t changed in 10 years, and there are several areas where improvements could be made. Revision of that program will be a much longer-term task, and we don’t expect any substantial changes to that process in the near future, but it is going to be reviewed.
Global Atlanta: Do the president’s actions eliminate the need for Congress to enact immigration reform?
Mr. Buffenstein: Absolutely not! The actions announced by the president are really just a Band-Aid, both on the issue of high-skilled workers and on how we deal with undocumented immigrants.
Issues such as modernizing the green card quota to match current demand, increasing the H-1B quota, and creating new kinds of visa categories to facilitate international investment and trade are all things that only Congress can address.
We desperately need congressional action on immigration reform, and businesses should continue to push their congressional representatives for meaningful, long-term immigration reform.
Daryl Buffenstein is a partner in Fragomen’s Atlanta office. His experience includes testifying before U.S. Congress on various corporate immigration issues, and writing key business provisions in major pieces of immigration legislation over the last 16 years. As a former president of the American Immigration Lawyers Association (AILA), Mr. Buffenstein was responsible for leading a successful national campaign to defend legal immigration, in response to efforts in Congress to radically restrict immigration. He also served a four-year term as the general counsel to the American Immigration Lawyers Association.
Kevin Miner is a partner in Fragomen’s Atlanta office. His practice includes working with clients to develop effective strategies for business immigration while ensuring compliance with applicable rules and regulations. He has drafted key pieces of immigration legislation, and has worked closely with the U.S. House and Senate Judiciary Committees on immigration legislation.He currently serves as vice-chair of the American Immigration Lawyers Association (AILA)’s Liaison Committee with the U.S. Department of Labor (DOL), where he works with high-level DOL representatives to address policy and processing issues on behalf of AILA. Mr. Miner also serves on AILA’s Office of Transformation Liaison Committee, where he works to provide AILA’s input on efforts by USCIS to implement an electronic case filing and management system.