While immigration headlines focus on a court ruling in Texas that forced President Barrack Obama to postpone a string of programs that would delay the deportation of illegal immigrants, other changes to immigration regulations under the president’s executive actions are moving forward and will affect employers in the Granite State.
The string of executive actions announced by President Obama in November concering immigration can be divided into two general categories. The first consists of so-called “deferred action” programs. This category would provide the millions of individuals already living in the United States without legal status with temporary relief from deportation. These deferred action programs have engendered controversy and raised questions concerning the breadth and scope of the executive branch’s constitutional powers.
In February, a federal judge in the U.S. District Court for the Southern District of Texas issued a preliminary injunction blocking the deferred action portions of the president’s executive action. Congress has recently taken measures to oppose the implementation of these programs through appropriations bills.
Regulatory Changes Move Forward
These deferred action programs, however, are only a part of the President’s executive action. The second category of the executive action consists of regulatory changes to existing immigration programs. These include temporary visa programs that NH businesses and universities rely on to employ foreign workers and attract foreign students.
These changes were not blocked by the preliminary injunction issued in the Texas suit nor face serious congressional opposition. The proposals would be enacted under the U.S. Department of Homeland Security and U.S. Department of Labor, which already have the authority to issue such regulations.
The president’s regulatory changes clarify the rules governing existing visa programs, reducing the backlogs of employment-based immigrant visas, easing restrictions on the portability of workers waiting for permanent residence, increasing the number of foreign students eligible to participate in practical training through their academic programs and increasing the duration allowed for such training.
In November, the Department of Homeland Security announced that it has or will propose rules intended to:
• Grant work authorization to the spouses of H-1B temporary workers.
• With the U.S. Department of State, modernize and improve the efficiencies of the immigrant visa process.
• Clarify the definition of “same or similar” job and facilitate the advancement of temporary workers while they wait for permanent residence. According to a memorandum from Homeland Security, “currently, uncertainty within the employment-based visa system creates unnecessary hardships for many foreign workers who have filed for adjustment of status but are unable to become permanent residents due to a lack of immigrant visas. Current law allows such workers to change jobs without jeopardizing their ability to seek lawful permanent residence, but only if the new job is in a ‘same or a similar’ occupational classification as their old job. Unfortunately, there is uncertainty surrounding what constitutes a ‘same or similar’ job, thus preventing many workers from changing employers, seeking new job opportunities, or even accepting promotions for fear that such action might void their currently approved immigrant visa petitions.”
• Expand the fields of study that qualify as STEM (science, technology, engineering and mathematics) degrees, permitting more foreign students to attend U.S. colleges and universities and take advantage of the 27-month Optional Practical Training (OPT) work authorization period associated with STEM degrees. (OPT is normally only 12 months).
• Clarify the standard under which a national interest waiver will be granted to self-petitioning immigrants with advanced degrees or exceptional abilities.
• Expand the significant public benefit parole program, permitting inventors, researchers and entrepreneurs to temporarily enter the United States to pursue research or develop businesses.
• Clarify the definition of specialized knowledge for L-1B intracompany transferees.
The U.S. Department of Labor also announced its intention to update the regulations applicable to PERM labor certifications. Those certifications are a prerequisite for some employment-based immigrant petitions used by U.S. businesses to sponsor workers for permanent residence. The PERM regulation was last amended in 2004 and the rules reflect outdated employer practices. The Department has announced its intention to amend these rules in accordance with modern employer recruitment practices, increase transparency and decrease denials on purely technical grounds.
Although the scope of these regulatory changes is narrower than the “deferred action” portion of the executive actions, the enactment of these regulations promises to provide clarity and predictability to businesses employing, or thinking about hiring, foreign nationals. For example, NH businesses affiliated with multinational corporations could find that clear requirements for “specialized knowledge” workers (L-1B) will simplify the frequently unpredictable results of transferring such workers to the United States
Businesses sponsoring foreign workers for permanent residence may find a regulatory definition for the “same or similar” occupation will help them plan for the natural advancement and progress of such workers during their career. Similarly, streamlined immigrant visa processing and modernized PERM labor certification recruitments would better align with existing employer practices and speed up the lengthy process of sponsoring an employee for permanent residence In the world of higher education and entrepreneurship, the expanded definition of STEM degrees would permit more foreign college and university students to take advantage of longer practical training periods following graduation. This would provide flexibility to NH businesses now forced to enter in the H-1B temporary worker lottery in order to attract and hire foreign students. New Hampshire colleges and universities may adjust their academic offerings to offer more courses in expanded STEM fields, attracting more foreign students to their classrooms and campuses.
Moreover, foreign entrepreneurs, inventors, researchers, persons of exceptional ability and investors may also benefit from the proposed changes that would make it easier for them to set up shop and contribute to the NH economy. Of course, the exact impact of the president’s executive action will not be known until rulemaking proposals have been finalized. But executive action, at least the portion not concerning “deferred action,” is likely to occur in the absence of meaningful immigration reform by Congress. Businesses, colleges and universities, and potential immigrants to NH should keep an eye on proposed rulemaking and analyze how final rules will effect their operations and opportunities.
Nathan P. Warecki is an attorney at Sheehan Phinney Bass + Green in Manchester, where he focuses on corporate law, including immigration. He can be reached at 603-627-8189 or nwarecki@sheehan.com. For more information, visit www.sheehan.com.