Keeping the Best and Brightest: President Obama’s Plan to Retain Skilled Workers
Posted on January 29, 2015
Apparently fed up with Congress’ inaction on immigration reform prior to the fall elections, President Barack Obama responded by issuing a series of executive orders covering immigration in November last year.
The president’s orders have been controversial, but the White House Council of Economic Advisers estimates that, over the next 10 years, the executive actions will increase the country’s Gross Domestic Product by 0.4 to 0.9 percent or $90 billion to $210 billion; reduce the deficit by approximately $25 billion; raise tax revenue by expanding the tax base by billions of dollars; and raise average wages for U.S.-born workers by 0.3 percent.
While many have focused on the executive orders that address undocumented foreign nationals, the president also expressed a desire to revise immigration procedures for foreign skilled workers and professionals.
U.S. Department of Homeland Security Secretary Jeh Johnson issued memorandums outlining new policies that support the nation’s high-skilled businesses and workers by better enabling U.S employers to hire and retain foreign workers. The new policies should allow highly-qualified and innovative people, many of whom received their higher education in the U.S., to continue working in the country and promote the growth of the U.S. economy.
The U.S. Department of Labor is now seeking input on various ways to streamline, update, improve and clarify the current Program Electric Review Management system, or PERM. This is the government system that provides the first step for foreign nationals to obtain employment-based permanent resident status in the U.S. This step requires the labor department to determine that there are not sufficient U.S. workers for the position, and that employment of the foreign worker will not adversely affect U.S. workers. However, according to a labor department fact sheet, the PERM certification process has not been comprehensively examined or modified since its inception 10 years ago. But demands for labor have increased, surpluses for various types of workers have changed and technology used in industry recruitment is different than before.
U.S immigration is primarily based on a visa quota system, which is maintained by the U.S. Department of State. The recent executive orders directed the U.S. Citizenship & Immigration Services to work with the State Department to develop a method for allocating immigrant visas to ensure that all immigrant visas are issued to eligible individuals when there is sufficient demand. This will provide for an adjustment of status for approved cases regardless of numerical quota backlogs.
President Obama also directed the USCIS to reduce wait times for employment-based immigrant visas and improve visa processing. Far too often, visas have gone unused due to processing issues. USCIS will work with the State Department to ensure that all visas authorized by Congress are issued to eligible individuals when there is sufficient demand.
The U.S. visa quota system causes thousands of skilled and professional foreign workers to wait up to 10 years or more for an immigrant visa or a permanent visa before they can finalize their U.S. residency process through employment. These long visa wait times have caused foreign nationals sponsored by U.S. employers to be “trapped” in the same position without advancement for the same employer despite industry or labor demand changes. Secretary Johnson’s memorandum announced that increased flexibility will be offered to foreign workers and employers in this situation. Thus, the USCIS will provide clarity on portability to remove unnecessary restrictions on career progression and general job mobility.
The executive action also directs the government to expand opportunities for foreign inventors, researchers, and founders of start-up enterprises to conduct research and development and create jobs in the U.S. Specifically, the USCIS will draft regulations for a new category of “parole” to enable such individuals to enter our country even before they become eligible for a visa. This will allow them to temporarily pursue research and development of promising businesses in the U.S. rather than abroad.Parole would be available to those who have been awarded substantial U.S. investor financing; or who otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
Additionally, the USCIS will clarify the standard by which a “national interest waiver” petition may be granted. The national interest waiver petition permits certain foreign nationals with advanced degrees or exceptional ability to seek U.S. residency either with or without employer sponsorship if their work and qualifications is in the national interest.
L-1B visas for “intracompany transferees” allow multinational companies to transfer certain persons to the U.S. who have specialized knowledge in their fields. These visas are an essential tool for managing a global workforce. The USCIS was directed to create clear, consolidated guidance on the meaning of “specialized knowledge” so that there will be greater coherence and integrity in the L-1B program.
Finally, the executive orders call for reform of the current Optional Practical Training program, which authorizes foreign nationals with student visas to gain experience through work in their fields before and after graduation from U.S. schools. The changes would expand the eligible degree programs. In addition, they would allow foreign students who have degrees in designated science, technology, engineering, and mathematics fields—and who are already eligible—to work for a longer period in the U.S.
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