Obama’s Immigration Action, Part 2: Addressing the “Broken System”

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Modernizing the PERM Process
There are some problems with the current labor certification process, which is also known the PERM process. PERM (which stands for program electronic review management), is the first step to obtaining employment based permanent residence. It must be approved before an I-140, immigrant petition for alien worker is filed. Its intended function is to be the vehicle in which an American company begins to hire someone who isn’t in this country for a future position that no qualified American worker is now applying for. This creates much uncertainty for the employer and the alien future employee.

The law requires that employment-based immigrants aren’t “taking away” jobs that qualified American workers are seeking, so the employer must place a job advertisement for at least thirty days. This step ensures that the company isn’t hiding the job from American workers–that the process was open and fair. In addition, the company must prove it isn’t trying to hire a foreign national because it thinks it can pay immigrants less than American workers. This procedure (known as the prevailing wage determination) involves the Department of Labor and can alone take several months.

The process has many places in which it can be interrupted or otherwise go wrong. If a company has a vacant roving position, or one that spans multiple locations, it is unclear where it must place advertisements (if it wants to hire a foreign worker for that position). If an American citizen applies for the position sometime later in the process, or if the company can no longer afford to pay the original documented wage, the whole process may have to be redone. The whole process necessarily has to be redone if there is any change in the original employment plan that was the basis for the immigrant visa. These aspects of the process cause much unnecessary hardship and potential for wasted resources.

The announced reform promises to “modernize” this process. Steps will be taken to simplify the employer’s obligation to ensure that the alien’s position was open to U.S. workers, and there may be a fast lane for processing in high-labor-demand fields. In addition, all immigrants may be able to pay for faster processing. And lastly, there may soon be a “harmless error provision.” This means that if there are errors in the application that do not change the underlying meaning or obscure its intention, second chances may be given instead of an issuance of outright denial.

No Wait for I-485 Application
Currently, many of those who filed employment based petitions for immigrant visas have to wait for extended periods of time before they can apply for a green card. Some immigrants have had to wait eleven years, in one instance (EB-3 workers from India). However, with this change, an alien will be able to file the I-485, application to register permanent residence or adjust status, at the same as his or her employer files the I-140, immigrant petition for alien worker.

This change is significant because those who have a pending adjustment of status receive several benefits. They can apply to be able to leave the country without abandoning their place in the line for permanent residence, they can apply for work authorization, and they can stay in the country without non-immigrant status. This will reduce the hardship for up to 450,000 qualifying immigrants waiting to adjust their status, plus future applicants.

More Advantages for Investors
Currently, much needed investors may have to wait up to two years before gaining entry into the United States through EB-5 (even though their visa category is current). However, they may soon be eligible for paroling into the country and being allowed to enter and apply for work authorization much earlier in the process while their case is pending, perhaps within a matter of months. Or, they may be able to apply for a national interest waiver, which has great potential to make the process easier for attractive potential investors. There could also be an expansion in eligibility for the national interest waiver in general.

Switching Occupations
The ability for employment based immigrants with pending I-485s to change employers could be improved. As of now, all that is known is that the future employment must be “the same or similar” to the original employment that was the basis for immigration. This has made changing employers at this time a difficult process with much uncertainty. It is expected that this clarification will make it easier to put together petitions to change employer while increasing certainty that well-crafted petitions will be approved.

Revival of L-1B
The L-1B was once a reliable way for international corporations with a U.S. presence to transfer workers from locations abroad to the U.S. locations if those employees had “specialized knowledge.” However, the high volume of approved L-1Bs has led to increased scrutiny by USCIS. Indeed, these changes reduced the amount of L1B approvals without further inquiry to almost 35%. Per the announcement, guidance for achieving approval with the L-1B, including a clarification of “specialized knowledge” will be released. It is also speculated that this guidance will provide for less rigorous scrutiny of petitions.

Available Visas
Some steps are being taken that may increase the amount of available visas. Currently, children and spouses of visa holders who immigrate with the lead beneficiary of an immigrant petition count toward the same visa quota as the primary visa holder. These children or spouses are called derivative beneficiaries. They count toward the same visa quota as the lead beneficiary, even if the visa is employment based. This could change: they may count toward a separate quota or not at all until they receive permanent residence. The administration is also looking into whether or not it can recycle visas that were not used in previous years.

For Students and Dependents
Soon, some H-4 spouses could be able to apply for work authorization if they are already on the path to permanent residence. The regulations surrounding this are unclear at the moment. Additionally, the period in which international graduates from American universities can work in the United States without additional status (known as OPT) is going to be extended. STEM (science, technology, engineering, math) students currently get additional time on OPT, and the additional time they get will also be increased.