Multi-national personnel and students are uniquely important to the mission and objectives of higher education institutions. The recent focus on immigration reform at the federal level raises the potential for broader opportunities for international offices on campus to help talented foreign national students, researchers, and faculty interested in their efforts to develop careers in the United States. One of the greatest challenges faced by foreign nationals educated in the United States is obtaining work-authorization status to remain in the country in the face of quotas and other obstacles that derail their attempts to work in the United States. We provide here a summary and analysis of anticipated changes to U.S. immigration rules that are expected to impact the ability of foreign nationals on campus to remain and work in the country, either at your institution or elsewhere. 

On November 20, 2014, President Obama announced several significant executive actions focusing on the exercise of prosecutorial discretion and improvement to business immigration rules in the United States. While main-stream media has focused on proposals relating to the undocumented, these executive actions are also of significant relevance to higher education constituents such as students, researchers, other highly skilled workers, and foreign national entrepreneurs collaborating with campus experts in various fields. In a policy memorandum published immediately after the President’s initial announcement, the Department  of Homeland Security (DHS) outlined several changes to areas such as the STEM program (Science, Technology, Engineering, and Math), visa options for students and others focusing on research and development, and the treatment of skilled workers. The DHS has already begun implementing changes consistent with this policy memorandum. Reforms most directly relevant to college and university interests include the following:

(1) Changes to the OPT program for STEM graduates: Traditionally, many foreign national students receiving Bachelors or advanced degrees have taken advantage of a period of work authorization allowed by USCIS for practical training after graduation, referred to as OPT [Optional Practical Training]. This limited, 12-month period of work authorization allows all graduates to gain subsequent work experience in the United States. Graduates in STEM fields are also eligible for a further 17-month extension of this period when employed by a U.S. employer enrolled in E-Verify. Graduates use this program to bridge their status to remain in the United States from student-based authorization to longer term employer-sponsored work authorization, such as an H-1B visa, TN, O-1, or even permanent residency.

Recognizing the tremendous shortage of work visas in the United States, applicable rules are expected to expand this STEM period of work authorization and, possibly, broaden the fields of study eligible for the STEM extension. Lastly, the DHS anticipates new rules aimed at ensuring stronger ties between degree-conferring institutions and the student’s STEM employment.

The regulations governing students are already quite dense, and the DHS’s actions to help graduates will significantly impact the compliance burden at U.S. higher education institutions. DSOs, or “Designed School Officials”, are individuals at higher education institutions authorized to accept international students that are vested with the duties and responsibility of issuing I-20s, making recommendations for OPT authorization, and otherwise discharging the University’s substantial compliance responsibilities under the Student Exchange Visitor Program (SEVP) maintained by ICE. As a result of these changes, DSOs at higher education institutions throughout the United States will need to revise existing policies and protocols to effectively address their evolving responsibilities.

(2) Expanded visa options for entrepreneurs: Two other initiatives may affect talented inventors, researchers, and start-up enterprise founders emerging from American educational institutions in their efforts to remain working in the United States.

First, to help such individuals obtain temporary work authorization, the DHS has announced that it will authorize parole, on a case-by-case basis, to those who:

  • Have been awarded substantial U.S. investor financing; or
  • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

Parole allows a foreign national who lacks employer-specific visa sponsorship to temporarily and legally enter the United States. This option may help such individuals, on a case-by-case and temporary basis, to keep working with faculty mentors/collaborators in research labs or business incubators on campus or to transfer to other employers within the United States.

Second, a similar group of individuals may have access to permanent residency options from the DHS’s expected rules and policy guidance further clarifying the standards for a “National Interest Waiver” (NIW). Under the Immigration and Nationality Act, a foreign national qualifying for a NIW can apply for permanent residency without employer sponsorship. Researchers in certain fields have already heavily utilized this category of permanent residency, while workers in other fields (such as industry and start-up founders) have been under-represented. Guidance establishing how under-represented workers, including inventors, start-up founders, and other highly skilled individuals, qualify for this permanent residency category will benefit institutions employing them and allow talented recent graduate inventors to continue their work in the United States with less concern about their immigration status.

(3)  Alleviating uncertainties about U.S. business immigration: The DHS has directed the USCIS to take several actions that will provide greater certainty to all foreign nationals, including those on campus, needing visa sponsorship in the United States. Examples include: 

  • Provide work authorization to the spouses of certain H-1B visa holders (this rule becomes effective May 26, 2015)
  • Publish guidance that will promote greater use of the L-1B (specialized knowledge worker at a multi -national company) visa
  • Increase visa portability by permitting foreign nationals to utilize a prior employer-sponsored visa petition for permanent residency notwithstanding a promotion or other changes in employment  
  • Act to promote greater utilization of all available visa numbers, thereby alleviating some of the backlogs within our immigration system due to artificially small country quotas (these quotas have not changed since immigration legislation was passed in 1990). 

As these reform efforts continue to develop, we can help institutions’ efforts to educate students, graduates, researchers, and other foreign nationals on campus about the specifics of these expanding opportunities to overcome barriers to applying their talents with the United States.