On July 15, 2015, in an action that sought to confront a number of the U.S. legal immigration system’s lingering problems, the White House issued a report entitled “Modernizing & Streamlining Our Legal Immigration System for the 21st Century.” The White House issued the report following the series of executive actions, known as the “Immigration Accountability Executive Actions,” that President Barack Obama issued in November of 2014 in an effort to reform the U.S. immigration system. As part of these executive actions, President Obama issued a presidential memorandum on November 21, 2014, in which he sought recommendations on how to reduce government costs; improve services for applicants; reduce burdens on employers; combat waste, fraud, and abuse in the system; utilize all immigrant visa numbers allocated by Congress; and modernize the technological infrastructure underlying the visa process.
In response to the presidential memorandum, the U.S. Department of State and the U.S. Department of Homeland Security (DHS), working in consultation with the White House and other federal agencies, conducted a thorough review of the U.S immigration system. The White House report compiles the results of this extensive evaluation process and offers numerous recommendations to modernize and streamline the U.S. immigration system.
The Report’s Three Main Areas of Recommendations
The White House report focuses its recommendations on three main areas of the U.S. immigration system: (1) increasing efficiency and accessibility, (2) streamlining legal immigration, and (3) strengthening humanitarian aspects of the U.S. immigration system.
(1) Modernizing the U.S. Immigration System Through Increased Efficiency and Accessibility
The recommendations offered in this section of the report address improvements to immigration-related information technology, visa application processing, and data collection and publication. Key recommendations include:
- simplifying the applicant experience to make it more accessible and user-friendly;
- clarifying the immigration process for applicants;
- adopting modern best practices for software development;
- modernizing and simplifying technology stacks; and
- enhancing the transparency of immigration-related data collection and publication.
(2) Streamlining the U.S. Immigration System
This section of the White House report contains recommendations to improve the employment-based immigrant and nonimmigrant visa categories, the immigrant investor visa program (EB-5), the exchange visitor program (J-1), the international arrival process for visitors and immigrants, and PERM, among others.
The White House’s key recommendations in this area of the report include:
- revising the monthly Visa Bulletin to better estimate immigrant visa availability;
- improving the visa allocation system to ensure that the number of immigrant visas issued are as closely aligned with statutory mandates as possible;
- Clarifying and expanding protections for H-1B employees under AC-21 by enhancing job flexibility and by extending grace periods for certain nonimmigrant workers whose period of authorized stay has expired to enable them to obtain other employment without losing their nonimmigrant status;
- updating the standards for the EB-5 immigrant visa program;
- enhancing the international arrival experience by, for example, expanding the use of Automated Passport Control kiosks and Mobile Passport Control applications, expanding the Global Entry option for travelers, streamlining certain nonimmigrant visa application protocols for low-risk travelers, and expanding pre-clearance with pre-boarding inspection;
- enhancing and expanding the Known Employer program, which is currently in its pilot stage;
- creating additional protections for the Exchange Visitor Program (J-1); and
- modernizing and streamlining PERM adjudications.
(3) Strengthening Humanitarian Aspects of the U.S. Immigration System
The recommendations in this area of the report focus on improvements to the U.S. legal immigration system for certain individuals, including family members of Filipino-American veterans, survivors of domestic violence, battered spouses, victims of crimes, victims of human trafficking, children who qualify for “age-out” protection, and other vulnerable populations. Key recommendations in this section include the following:
- simplifying the immigration process and shortening the wait times for domestic violence survivors;
- publishing a final guidance to implement work authorization for certain battered spouses;
- clarifying the requirements for victims of crimes seeking to obtain U status;
- modifying requirements and procedures for individuals seeking T status;
- providing consistency and clarity regarding who can qualify for “age-out” protection; and
- improving access to the immigration system for vulnerable populations.
Proposed Recommendations Impacting U.S. Employers and Foreign Workers
Of notable importance to U.S. employers and foreign workers, the White House report proposes several recommendations that would impact employment-based immigrants and nonimmigrants. Specifically, the report contains several recommendations designed to improve job mobility for foreign workers in the permanent residency process and for those on H-1B visas. To accomplish these goals, the DHS is expected to issue regulations to clarify and expand the protections afforded to employment-based immigrants and non-immigrants under the American Competitiveness in the Twenty-first Century Act of 2000 (AC-21).
The forthcoming DHS regulations are anticipated to offer guidance that would facilitate the ability of foreign workers who are pursuing permanent residency status to change jobs or receive promotions by:
- clarifying when a foreign worker’s employment falls within the “same or similar” job category as the original job that served as the basis of the permanent residency process;
- providing additional guidance on job flexibility provisions for H-1B workers seeking other H-1B employment (including those seeking new positions and new employers);
- extending grace periods for certain foreign workers whose period of authorized stay has expired (including in situations involving job losses) in order to give foreign workers the ability to obtain new employment without losing their nonimmigrant status;
- increasing guidance on the maximum period of admission for H-1B nonimmigrants;
- clarifying which H-1B nonimmigrants are exempt from the statutory cap for H-1B visas; and
- providing protection to H-1B nonimmigrants who suffer retaliatory action for reporting labor violations committed by their employers.
The White House report also offers recommendations to enhance and expand the “Known Employer” pilot program, which the DHS announced in 2015. The program seeks to streamline the adjudication process for certain types of immigration petitions filed by U.S. employers who meet strict criteria. Under the Known Employer program, the adjudication process would be more efficient and less costly, while also reducing paperwork and delays experienced by U.S. employers seeking to employ foreign workers in the United States.
Furthermore, the White House report offers recommendations to modernize and streamline the permanent labor certification (PERM) adjudication process. To this end, the U.S. Department of Labor (DOL) intends to publish regulations, updating recruitment methods, addressing the correction of minor errors in PERM Labor Certification applications, and disclosing the PERM application outcome to immigrant workers. The DOL also intends to continue to implement a plan to streamline PERM adjudications processes (including the audit review process, which will serve to reduce the caseload of audit cases still pending and allow for faster adjudication of audited cases).
In sum, the White House report acknowledges that the U.S. immigration system is broken. Its comprehensive series of recommendations seek to modernize and streamline the U.S. legal immigration system, within the scope of the executive branch’s authority, to make it more efficient and effective and to help reduce the obstacles that applicants face in navigating the system. Many of the recommendations set forth in the White House report will require additional actions through regulations and technology modernization—in particular on the part of federal agencies, offices, and departments, such as the DOL and the U.S. Citizenship and Immigration Services. Ogletree Deakins will continue to monitor these developments as they unfold and will communicate updates as they become available.