In a long anticipated move, President Obama announced last night a series of administrative actions to be implemented in the coming months to improve our immigration system. While the focus of the announcement was undoubtedly the expansion of the deferred action program for undocumented people, there are several key measures that will have a direct impact on the employment based immigration field. Specific details will be announced in the coming months. Here is what we know at this point:
1. Reorganization of the PERM labor certification program: Recognizing that the existing PERM labor certification system is outdated and does not meet the realities of the 21st century workplace, the U.S. Department of Labor will be reviewing the entire program and will change the PERM regulation to focus on the following aspects:
Modernize recruitment procedures: This hopefully means moving away from using print newspaper advertising and focusing more on online recruitment.
Shorten processing timeframes and implement a “premium processing” program for certain cases: Non-audited PERM applications currently take about 6 months while audited application take about 1.5 years. The upcoming changes will hopefully shorten the processing timeframes and also allow expedite adjudication of certain cases, similar to the existing USCIS premium processing program.
Reorganize PERM filing procedures, case review process and prevent denials for minor and nonmaterial errors: Under the current system, even minor typographical errors could result in PERM application denials.
Clarify employer obligations to ensure offered job positions are fully open to U.S. workers;
Designate “shortage” and “surplus” occupations and develop corresponding PERM recruitment schemes: With the exception of Schedule A occupations (Physical Therapist and Nursing occupations) that are exempt from PERM recruitment requirement, the existing PERM system does not specifically recognize that other occupations may have shortage or surplus of available U.S. workers. Under the envisioned PERM modifications, additional shortage occupations may be added to the existing Schedule A list and be exempt from recruitment, or perhaps have more streamlined recruitment requirements, while surplus occupations may need to engage in more substantial recruitment.
2. Visa wait list: The government will develop a better system to allocate immigrant visa numbers to ensure that all immigrant visas authorized by law are assigned to eligible applicants. This will ultimately decrease the visa list wait times. Under the current system, some of the available visa numbers remain unused each year and cannot be recaptured. Further details will become available in the coming months but the government is also presumably looking at other ways to alleviate visa wait list hardships by allowing foreign nationals with approved I-140 immigrant petitions to file I-485 adjustment of status applications, and become eligible for employment and travel authorization, before their place in the wait list becomes current. Such a modification should also apply to family members.
3. AC21 portability for applicants with pending I-485 adjustment of status applications: The government will also improve the job mobility of applicants with pending I-485 adjustment of status applications. The modifications will help address career progression and are expected to improve job mobility for applicants who are on the visa wait list.
4. Foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy:
National Interest Waiver: Develop standards for evaluating and granting national interest waiver, e.g. waive the requirement of obtaining PERM labor certification, for eligible inventors, researchers and start-up entrepreneurs who are applying for permanent residence in the United States and whose work is of national interest.
Travel to the United States: Authorize parole, e.g. allow eligible inventors, researchers and start-up entrepreneurs who may not yet be at the point where they qualify for a national interest waiver, but who need to be present in the United States to develop their research or startups and who a) have been awarded substantial U.S. investor financing, or b) are likely to promote innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
5. Employment authorization for spouses for H-1B workers: The government will finalize its proposed regulation to extend employment authorization eligibility to the spouses of certain H-1B visa holders who also have pending permanent residence cases.
6. Improve the L-1B specialized knowledge visa program: USCIS will provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring clarity and adjudication predictability to the L-1B program. Currently there is no clear definition of what “specialized knowledge” means and USCIS adjudicators have been interpreting it in different and unpredictable ways, often resulting in case denials.
7. F-1 students: The government will implement new regulations to expand and extend the use of the Optional Practical Training (OPT) program for F-1 foreign students. The OPT program, designed to assist students in transitioning from school to the regular workforce, provides for up to 12 months of employment authorization. Some students with degrees in STEM fields (science, technology, engineering and mathematics) are eligible for up to 29 months of employment authorization. There are specific details yet but the proposed changes would likely include increasing the maximum authorized OPT period for students in STEM fields, as well as streamlining the application process.
There are a lot of unknowns at this point. Keep checking our blog for further information and analysis as further details become available in the coming months.