While everyone is focused on illegal immigration, don’t lose sight of President Obama’s executive actions intention to make things a bit easier for employers to access and retain legal immigrants.
Business leaders have pleaded with Congress to pass an immigration reform bill. Tom Donohue, President and CEO of the U.S. Chamber of Commerce stated this reform would boost productivity, attract worldwide investment, raise the GDP (Gross Domestic Product) and slash the federal deficit.
Immigration reform is needed to alleviate labor shortages. The technology sector struggles to find qualified candidates. A recent survey conducted by Adecco found there is one unemployed person for every 1.9 vacant STEM (Science, Technology, Engineering and Mathematics) jobs in the United States. During the next three years, STEM jobs are expected to grow almost twice as fast as non-STEM jobs.
Obama’s executive action includes expanding STEM graduates Optional Practical Training. The length of time as well as the number of eligible degree programs may be increased through regulation. The intent is to keep legal immigrants who were trained in the U.S. and allow them to contribute to our economy rather than be returned home due to the U.S. immigration system.
The executive order did not increase the num- ber of H-1B visas. These visas allow subject matter experts to come to the U.S. to fill positions where workers are in short supply. Last year, 124,000 applications were received for the 65,000 available H1-B visas. However, the action does include clarifying and modernizing the system to optimize the number of available visas. Issues include whether dependents should be counted and whether unused visa numbers can be reused.
Should an employer want to keep an H-1B employee, the current system fights back. The conversion from H-1B visa to green card can take ten years. This creates problems for the employer since there is uncertainty about the individual’s status and ability to be retained.
Obama’s executive action includes Pre- registration for Adjustment of Status and Enhanced Worker Portability. The implications of this action may be terrific for employers sponsoring foreign national employees. The employer will be able to promote or transfer the foreign national employee without having to file a second Program Electronic Review Management (PERM) application.
The PERM application process determines whether there are not sufficient available U.S. workers qualified for the position; whether employing the alien will have any adverse effect on working conditions of similarly employed U.S. workers; whether the employer has met procedural requirements; and whether there are available green cards.
This executive action will also impact the foreign national should he or she decide to change employers as long as the position was the same or similar to the previously certified position.
Other details include allowing spouses of H1-B employees to apply for employment; granting certain foreign inventors, researchers and entrepreneurs national interest waivers and parole in the U.S. to create jobs; and refining guidance to reduce capricious decisions. So much more needs to be done, perhaps Congress will take action in 2015.
What employers should know:
1. These actions are not currently in effect.
2. Pre-Registration for Adjustment of Status and Enhanced Worker Portability is expected to impact more than 400,000 people.
3. If you employ foreign nationals, retain an attorney who specializes in immigration.
4. The U.S. Chamber of Commerce continues to lobby for meaningful reform.