On November 20, 2014, U.S. Department of Homeland Security Secretary Jeh Johnson issued a policy memorandum to the Director for U.S. Citizenship and Immigration Services (“USCIS”) and Acting Director for U.S. Immigration and Customs Enforcement (“ICE”). The memorandum highlights several new policies and regulations intended to encourage the growth of U.S. businesses and create new jobs by enabling the hiring and retention of highly skilled foreign-born workers while also providing increased flexibility to these workers. The memorandum is part of a comprehensive Executive Action Plan proposed by President Obama. 

Key issues discussed in the memorandum include: 

Efforts to Modernize the Employment-Based Immigrant Visa System

In the memo, Secretary Johnson directs USCIS to take several steps to make the green card process more expedient for foreign nationals. The memo proposes more cooperation between USCIS and the Department of State to ensure that all immigrant visas authorized are issued to eligible individuals. 

Under the current system, it takes several years for many foreign born employees to obtain their residency because of the limited quota of immigrant visas available. As a result, thousands of immigrant visas have gone unused because of delays in processing. 

Under the new system, the Department of State will modify the visa bulletin system currently used to determine when immigrant visas are available. In addition, Secretary Johnson directs USCIS to consider amending current regulations to allow long standing previously-approved immigrant visa petitions to remain valid where the employee changes jobs or employers. 

Changes to the Optional Practical Training for Foreign Students and Graduates from U.S. Universities

The memo directs ICE and USCIS to develop regulations to expand the degree programs eligible for Optional Practical Training (“OPT”) and extend the time period and use of OPT for foreign STEM (Science, Technology, Engineering or Mathematics) students and graduates. Secretary Johnson proposes stricter enforcement of OPT programs and the ties to the degree-granting institutions. In addition, Secretary Johnson directs ICE and USCIS to take action to ensure consistency between the OPT program and the efforts to protect U.S. labor markets and the interest of U.S. workers in related fields.

Foreign students are currently eligible for up to 29 months of OPT temporary employment relevant to a field of study in a STEM program. The memo’s directive could potentially allow individuals who obtain a U.S. bachelor’s degree in a STEM program and a subsequent non-STEM graduate degree to avail themselves of an additional 29 months for the non-STEM graduate degree. These U.S. labor market protection efforts would possibly require employers to pay OPT foreign student the prevailing wage for those positions.

Changes to Promote Research and Development

Secretary Johnson directed USCIS to implement two administrative improvements that would promote foreign inventors, researchers, and founders of start-up enterprises to conduct research and develop businesses within the U.S. 

The first improvement would require USCIS to issue guidance or regulations to clarify the standard by which a national interest waiver can be granted. The national interest waiver permits certain non-citizens with advanced degrees or exceptional abilities to seek green cards without employer sponsorship. 

The second administrative change would implement a program to permit DHS to parole inventors, researchers, and founders of start-up enterprises. Their parole would require a significant public benefit and the regulations would require income and resource thresholds. 

Clearer and Consistent Interpretation of the L-1B Visa Program 

The L-1B visa program permits multinational companies to transfer their own foreign employees from qualifying entities abroad to the U.S. when the employees possess specialized knowledge of the company’s products and processes. The program has been marred by significant variances in interpretation and applications of the term “specialized knowledge.” The memo seeks to address this concern by directing USCIS to issue a policy memorandum that provides clear, consolidated guidance on the meaning of “specialized knowledge.” 

Greater Clarity for Foreign Workers Seeking Portability of Immigrant Visas

Current law permits workers who are the beneficiaries of approved immigrant visas to transfer to new employers “port” only if the new job is in the “same or similar” occupational classification as the job forming the basis for the immigrant visa. To date, USCIS has provided minimal guidance on what constitutes a “same or similar” occupation. In the memo, Secretary Johnson directs USCIS to issue a policy memorandum that provides agency guidance to employees and their employers with respect to the types of job changes that constitute a “same or similar” occupation.