While the press and the public focuses on the titanic battle between Congress and the President as to his Executive power and directives that might impact the status of millions of undocumented aliens, the business community is parsing through the series of initiatives that the President has proposed to assist in legal immigration and unfortunately, does not find very much there.
It certainly is not the President’s fault. “Legal” immigration is largely circumscribed by statutes and regulations and does not provide him the opportunity to be as dramatic as he can be with reference to the exercise of prosecutorial discretion. You cannot accuse the President of not trying as he certainly attempted to address as many issues as he felt that he could with reference to the concerns of the business community. But, there simply isn’t very much there.
The Secretary of the Department of Homeland Security is directing United States Citizenship and Immigration Services to consider regulatory changes that will make it easier for employees with long pending residence cases to change employers and maintain their applications after their jobs change. They will also look to expand opportunities for entrepreneurs, facilitate employment authorization for certain spouses of H-1 visa holders, and initiate an overhaul of the PERM labor certification process, which qualifies one for permanent residence in the United States through employment. Similarly, there will be an initiative to modernize the visa process to make it more efficient and make visas more readily available, as well as increase coordination between government agencies responsible for employer compliance with the immigration rules. See Proskauer’s Client Alert of November 21, 2014 describing some of these initiatives more fully (http://www.proskauer.com/publications/client-alert/obamas-executive-action-what-does-this-mean-for-foreign-workers-and-us-businesses/).
Unfortunately, while welcome, these are really moderate housekeeping provisions, which the various government agencies should have been undertaking, with or without a major Presidential initiative as Senior Associate, Valarie McPherson discussed on Bloomberg Law on November 21, 2014 (http://media.bloomberg.com/bb/avfile/Politics/Law/v8tAmTXo6J_A.mp3).
With the possible exception of a proposal to use parole authority to facilitate the arrival of entrepreneurs in the United States, the regulations and the policy guidance that are proposed, do not require any special Presidential authority.
What is disappointing is that proposals made that would have dramatically impacted the quota system and eliminated severe backlogs; do not appear in this series of initiatives. It has been suggested that if regulations were written to eliminate derivatives from the quota count, so that only the principal applicant for resident status, was counted toward the quota limitation, or if the Service would seek to recover and utilize unused visas from prior years, in fact, we would seek a dramatic impact and improvement in the quota system – that would truly be groundbreaking.
However, that was not to be. The business community for the time being, subject to the publication of the promised policy guidance and new regulations, will have to be satisfied with small improvements until comprehensive immigration reform gains traction.