Earlier this month, the White House released a review of the United States’ immigration policies in a report entitled, “Modernizing & Streamlining our Legal Immigration System for the 21st Century.” The Report highlights key changes that are expected to the immigration system through regulation and digitalization initiatives during the remainder of President Obama’s term. The Report also underscores the need for fundamental changes to the immigration system that can only be accomplished through Comprehensive Immigration Reform legislation. 

2014 Immigration Accountability Executive Actions

As a result of Congress’s failure to pass a Comprehensive Immigration Reform bill in 2013 or 2014, President Obama announced reforms to the immigration laws and policies through executive actions late last year. Called the “Immigration Accountability Executive Actions” (IAEA), the most well-known and far-reaching of these initiatives would have provided work authorization and relief from removal to an expanded group of undocumented residents who arrived in the United States as childhood arrivals by expanding the existing DACA program. A second initiative would have provided the same benefit to a pool of undocumented residents of the United States who had a U.S. Citizen or Legal Permanent Resident child and met certain other criteria (DAPA program). As a result of litigation initiated by 26 states opposed to these programs, these programs are currently enjoined. While the administration is appealing this injunction before the U.S. Court of Appeals for the 5th Circuit, the future of these programs remains uncertain. 

Nevertheless, while less widely publicized, the IAEA executive actions have resulted in other regulations and policy changes, the most significant of which are: 

  • Providing work authorization to certain H-4s (spouses of H-1B status holders in the United States)
  • Providing new policy guidance on eligibility for L-1B specialized knowledge worker transfers
  • Increasing the accessibility of provisional waivers to the family members of U.S. legal permanent residents  

Other changes expected in the very near future include: 

  • "Parole” guidelines for foreign investors, researchers, and entrepreneurs whose presence in the United States would be of significant public benefit. This step would essentially permit individuals meeting these guidelines to legally enter and work in the United States for some period of time consistent with U.S. immigration laws. 
  • Strengthening the Optional Practical Training (OPT) program to improve training for foreign students at U.S. universities while protecting U.S. workers. 

The President also ordered the Departments of Homeland Security (DHS) and State (DOS) to lead an inter-agency effort to reduce government costs, improve services for applicants, reduce burdens on employers, combat fraud and waste, modernize the IT infrastructure underlying the visa processing systems, and to ensure optimal use of available visa numbers consistent with demand. The White House Report is a result of an inter-agency collaboration between the DHS, the DOS, the White House, the Office of Management and Budget, the National Security Council, the Department of Labor, the Department of Agriculture, the Department of Commerce, and the Department of Education. 

The White House Report

The Report is wide-ranging and covers numerous topics, including improvements to the underlying information technology infrastructure, streamlining business and other legal immigration avenues, and strengthening the humanitarian immigration system. 

Streamlining Business and Legal Immigration:

Regarding employment-based immigrants and nonimmigrants, the Report contains several recommendations designed to improve job mobility for foreign nationals in the permanent residency process and on H-1B work visas. Forthcoming regulations are expected to expand protections for employment-based visas by: 

  • Clarifying when an immigrant may change jobs due to the job being the same or similar to the original job that allowed for permanent residency. 
  • Enabling immigrants whose employment-sponsored visa petitions have been approved for more than one year to remain eligible for permanent residency despite the petitioning employer closing his/her business or attempting to withdraw the approved application.
  •  Providing job market guidance to H-1B immigrants seeking other H-1B opportunities.
  •  Extending grace periods for certain non-immigrant workers whose authorized stay has expired so as to not lose their non-immigrant status.
  •  Providing increased guidance on maximum periods of admission for H-1B nonimmigrants and enabling nonimmigrants to recapture time spent outside the United States.
  •  Clarifying which H-1B immigrants are exempt from the statutory cap.
  •  Protecting H-1B workers who suffered retaliatory actions from reporting labor violations of their employer.

Each of these recommendations could be very significant to the labor market and will warrant further analysis once an appropriate regulation is proposed and implemented. 

The Report also highlights recommended improvements to the EB-5 program, which was the subject of a recent Franczek Radelet alert due to proposed bi-partisan legislation that would significantly change the existing EB-5 program guidelines. To “improve the integrity and impact of the program,” the White House Report set forth the following recommendations: 

  • DHS should pursue rulemaking to require conflict-of-interest disclosures by Regional Centers, enhance background checks, and increase minimum investment amounts.
  • The DOS should amend guidance to clarify that potential EB-5 investors may obtain a visitor visa in order to examine potential investment sites.
  • USCIS should take action to enhance protections against fraud and misuse of the program, ensure the program is achieving its greatest potential impact, and reduce unnecessary burdens on the part of petitioners and Regional Centers. 

Digitizing and Modernizing the Immigration Infrastructure: 

The Report also goes into detail about the need to digitize and otherwise modernize the immigration IT infrastructure, which unfortunately remains heavily paper-based and subject to inefficiencies and delays due to the need to physically transfer files. The Report noted, for example, that: 

  • During the permanent residency application process, a paper file is physically transferred six times by the U.S. government from the point of initial application;
  • Existing electronic systems, such as “ELIS”, are using outdated and ineffective technology methodologies. 

In light of the need for increased efficiencies, the White House Report outlines a wide-ranging series of recommendations designed to lead to greater digitalization and promote greater electronic access to immigration services.

The Report goes on to emphasize the importance of increased transparency and publication of data pertinent to our immigration system. 

Statutory Caps 

President Obama mandates agencies revise the current model of allocating visas. In an effort to ensure the maximum number of available visas are issued each year, the Report calls on the DOS to increase the amount of visas that are allocated per month during the first three quarters of the fiscal year. By granting an increased amount of visas earlier in the fiscal year, the National Visa Center will have more time to evaluate how many available visas will be potentially go unused. This information will allow for the granting of additional visas before the end of the fiscal year in order to maximize annual visa limits. 

Limitations of the Report

Although the President’s executive action addresses several issues currently congesting the immigration visa application process, the Report falls short of addressing fundamental limitations of our current immigration system, namely the statutory country quotas that result in lengthy waiting periods for nationals of certain countries such as India and China with a heavy demand; the quotas on H-1B visas that result in the inability of many American businesses to utilize these visas; and the ongoing challenge of integrating undocumented workers from the shadow economy into legally employable workers. 

Conclusion

Although the separations of power limits the actions that the executive branch can take to fix our immigration system, this report does forecast a robust set of actions and future regulations over the next 18 months designed to improve job mobility for many foreign nationals. Additionally, the report also forecasts very significant technological changes that, if properly implemented, could reduce the delays and many of the frustrations involved with current visa applications. We will continue to alert you as new immigration regulations and policy changes impacting your business are enacted.