Temporary work visa programs and the need for reform
Brian D. Lerner states that the Presidential Memorandum on visa modernization deals with the immigration reform requirements for visa processing and employment based visas. On November 21, 2014, the President issued the Presidential Memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century.” In this memo, Brian Lerner states the President called on immigration agencies to develop recommendations to improve the current visa system, while at the same time reinforcing that legislative reforms were needed to bring the U.S. immigration system in line with current economic and national security needs. He has directed the Secretaries of the Departments of Homeland Security and State, working in consultation with the White House, the Attorney General, the Secretaries of Agriculture, Commerce, Labor, and Education, and non-governmental stakeholders to submit recommendation to him by March 20, 2015. The immigration reform requirements are quite extensive. As other people will very well know, it takes many years for visa numbers to become current. Hopefully, states Brian D. Lerner, when the immigration reform requirements will greatly decrease visa waiting times and allow families to get together years sooner.
The immigration reform requirements states that the recommendations shall be designed to ensure (1) that the processing of all immigrant (permanent) and non-immigrant (temporary) visas is done efficiently, with an emphasis on reducing costs, waste, and fraud while improving services; (2) that all available immigrant visa numbers are used consistent with demand; and (3) that a stronger technology infrastructure exists to improve the applicant’s experience, enable better oversight, and eliminate duplicative systems. The immigration reform requirements states that the recommendations must include metrics for measuring progress in implementation and in achieving service improvements, while still protecting U.S. border integrity and economic opportunities for U.S. and foreign workers. Brian Lerner states this is somewhat ambiguous what will actually happen, but it is certainly promising.
What changes are proposed for employment-based visas asks Brian D. Lerner. The immigration reform requirements lists that DHS Secretary Jeh Johnson issued a memorandum outlining new policies that support U.S. high-skilled businesses and workers by better enabling U.S employers to hire and retain foreign workers. First, the Secretary directed USCIS to take steps to reduce wait times for employment-based immigrant visas and improve visa processing. Far too often, visas have gone unused due to processing issues. In accordance with the immigration reform requirements, USCIS will work with the Department of State (DOS) to ensure that all visas authorized by Congress are issued to eligible individuals when there is sufficient demand. USCIS also will work with DOS to improve the process for determining when immigrant visas are available to applicants during the fiscal year. In addition, the Secretary directed USCIS to consider regulatory or policy changes that ensure that individuals with pending immigrant visa petitions will not lose their place in line if they change jobs. Brian Lerner states this will be a welcome addition to the immigration reform requirements insofar as it will allow a way out for employees waiting year after year for the visa number to become current.
Next, the immigration reform requirements state that the agencies have announced a series of policy changes intended to prevent ambitious and creative people, many of whom received their higher education in the United States, from continuing to leave the country and work abroad—a trend that has created great uncertainty and frustration for employers. The proposed changes will include:
- Reforms to the Optional Practical Training (OPT) program, which authorizes foreign students before and after graduation from U.S. schools to gain experience through work in their fields. The changes would expand the degree programs eligible for OPT. In addition, they would allow foreign students with degrees in designated science, technology, engineering, and mathematics (STEM) fields who are already eligible for OPT to work for a longer period in the United States states Brian D. Lerner;
- Expanded opportunities for foreign inventors, researchers, and founders of start-up enterprises to conduct research and development and create jobs in the United States.
- Consolidated guidance to ensure greater consistency in the adjudication of L-1B visas for “intracompany transferees.” These visas allow multinational companies to transfer certain managers, executives, or persons with specialized knowledge in their fields to the United States for a temporary period. Brian D. Lerner states that the immigration reform requirements is very good here considering that the L-1B program has suffered considerably in the past.
- Increased flexibility in the rules permitting applicants for employment-based permanent resident status to change jobs (called “porting”), if their applications are stalled due to processing delays.
- Review of the Department of Labor’s certification process for foreign labor, known as the PERM process. The certification process is an initial step in obtaining employment-based permanent resident status and requires DOL to determine that there are not sufficient U.S. workers for the position and that employment of the foreign worker will not adversely affect U.S. workers. Perhaps, states Brian D. Lerner, this will greatly increase the efficiency of the PERM process.
• Finally, the immigration reform requirements list that completing work on current initiatives such as providing employment authorization to certain spouses of foreign workers with H-1B visas (i.e., high-skilled, temporary workers) who have been approved to receive permanent resident status based on employer sponsorship. Brian D. Lerner states that this immigration reform requirement would be a welcome addition to the H-1B program and get it inline with the E-2 and L-1 which allows spouses to work.